I think it is fair to say that the recent Parliamentary debate in the Parliament of Antigua and Barbuda of The Representation of The People (amendment) Act 2011 has evoked consternation among the Body Politic as a whole.
And judging by the wide cross section of persons who have expressed serious concerns with regard thereto, it appears this unease cuts across political party lines.
The debate in parliament on the government benches showed a complete lack of knowledge both of the Principle Act and the Electoral system as it pertains to continuous registration, preparation of the Registers of Electors conduct of claims and objections, and the publishing of the Preliminary registers and Registers of Electors according to Law.
There is also a lack of understanding as to the Constitutional position of the Supervisor of Elections, and what her functions, powers and duties are intended to be with regard to the entire electoral process, during a five-year election cycle.
THE SUPERVISOR OF ELECTIONS
Section 3 of The Representation of the People Act Cap 379 stated as follows:
The Supervisor of Elections shall:
a. exercise general directions and supervision over the administrative conduct of elections and enforce on the part of ALL ELECTION OFFICERS fairness, impartiality, and compliance with the provisions of this act,
b. issue to election officers such instructions as from time to time he may deem necessary to ensure effective execution of the provisions of this Act; and
c. execute and perform all other powers and duties which by this Act are conferred and imposed upon him.
The Act referred detailed all of the powers of the Supervisor of Elections, and set out the Election Rules and Registration regulations by which he or she was governed.
Section 65 (2) of The Constitution
By Section 67 of The Constitution, the position of Supervisor of Elections was changed from a statutory to a constitutional position and Section 67(2) thereof reads as follows:
(2) The Supervisor of Elections shall have and exercise such functions, powers and duties as may be provided by law.
So at the passing of the Constitution into law, there were already laid out and detailed in the 1975 Act, functions, powers and duties of the Supervisor of Elections. These duties continued unchanged for some 26 & 27 years respectively until the coming into force of The Representation of the People’s Act 2001 & 2002.
In 2001, Parliament passed the 2001 Act, and in so doing so repealed sections 3-42 of the Principal Act to inter alia provide for the establishment of an Electoral Commission. By the Representation of The People Act 2002 Parliament passed the Election Rules and the Registration Regulations which included many but not all of those rules and regulations contained in the Principle Act.
It should be noted that S9 of the 2001 Act under the heading ADMINISTRATION AND SUPERVISION of elections set out the “powers and duties of the Supervisor of Elections. Up to immediately prior to this violent Statutory rape of the Act the powers and duties of the Supervisor of Elections included ADMINISTRATION AND SUPERVISION OF ELECTIONS not supervision alone, and the duties were clearly and unambiguously set out.
THE INTERPRETATION OF SECTION 67 (2)
The Learned Attorney General, whose name and title is affixed to the amended bill, has opined “that the amendment with regard to the sections reducing and curtailing the administrative functions of the supervisor is in conformity with the Constitution” (my words).
He however offered no case authorities, neither did he support his bald assertion with legal argument or authority. This view has been echoed mindlessly by those Parliamentarians in The House and Senate with legal training, and those without.
I am of the view that the interpretation being put on this section by the Hon Justin Simon QC and the ruling party is simplistic, and clearly undermines the constitutional position and authority of the Supervisor of Elections as enshrined in section 67 of the Constitution and the Electoral Process as a whole.
I beg to disagree with the ruling parties’ self-serving interpretation of Section 67(2) for the following reasons.
• Section 67(2) of The Constitution came into law in 1981, at that time there existed the Representation of The People Act Cap 379, which set out the powers and duties of the Supervisor of Elections which I have set out above. These duties were generic in nature and lacked specificity. It also set out the Electoral rules and regulations governing voter registration and voter fraud etc.
• Following the General Elections in 1999, the Commonwealth Observer Mission indicated to the Prime Minister Lester Bird and his government that the 1975 Act was archaic, and did not adequately provide for total independence of the Electoral process. To its credit the ALP heeded the recommendation, and as a result, the Representation of the People (amendment) Acts Nos 17 of 2001 and 11 of 2002 were passed by Parliament.
At this time I was a longstanding executive member of the UPP, and contributed to the sessions during which the purported bill was brought to the Executive by the then Leader of Opposition and Party Leader The Honourable Baldwin Spencer for discussion and party input.
At that time it was all about the independence of the Antigua and Barbuda Electoral Commission and the electoral process in general. I also distinctly remember the said Baldwin Spencer, on the question of nomination of members to ABEC, arguing strongly that the formation should be – Prime Minister 2 commissioners, the Leader of The Opposition 2, and the Governor General to nominate the Chairman. Contrast the present position of Dr Spencer and his ruling party.
• By the aforementioned Acts of 2001 and 2002, a Modern Act and its regulations were passed into law, with significant input by the then opposition. The Acts provided not only for an Independent ABEC, but also set out in detail the functions and duties of The Commission (S6) and the Powers and duties of the Supervisor of Elections (S9).
It also specifically made the supervisor the “Chief Registration Officer” and for the purposes of an election the Chief Election Officer (my emphasis). It should be noted that the Acts referred are based on similar legislation throughout the British Commonwealth. In each and every one of these countries, the same Supervisor or Electoral Officer is in charge of both the preparation of the Register of Electors AND the conduct of General or By-elections. To dissect these two functions flies in the face of logic and is neither good law nor good sense.
• So that by 2001, all of the laws necessary as contemplated by S67(2) had been passed. It seems to me that if the government’s interpretation is correct, then Parliament could not only legislate as they have done, but could not be prevented (by their interpretation) from removing all the functions of conducting elections from the supervisor.
Surely this could not be the intent and purpose of the constitutional section, and certainly does not make legal sense. Suffice to say, I am of the view that there is a more than a strong arguable case against the actions of The Government and these sections will certainly be challenged, and I believe with success. However, I am continuing to research the matter, including the section pertaining to disbanding the Commission.
THE RATIONALE FOR THE AMENDEMENTS AND THE PARLIAMENTARY DEBATE
A more than significant number of citizens of the country have inquired of me, as to government’s reason behind the amendments, as it appears to be a clumsy attempt by the UPP to gain control of the ABEC in order to “rig” the 2014 elections. I am unable to say definitively whether this is so or not, and I have been unable to gather any sense from the various speeches from the government benches as they debated the bill in the House and Senate.
To be truthful, I did not hear the speeches of all of the members, but of those I heard, one thing was clear. Not one of the speakers on the government side appeared to understand the law they were amending, or the operations of ABEC and the Electoral process as a whole.
Other than the contributions of the members of the opposition bench MP’s – Yearwood, Michael, and Joseph (and I must mention the scholarly and relevant contribution of the Hon Molwyn Joseph) the Parliamentary debate ranged from the ridiculous to the pathetic of the speeches.
The Hon Harold Lovell, a normally fair, decent, and level-headed person, certainly appeared embarrassed in his presentation, while MP Jacqui Quinn Leandro was her usual obnoxious and obstreperous self, obviously delighting in her self-appointed role of “parliamentary Bully Bwoy”.
What is worse and more unacceptable is the fact that this politician is fully aware that the late opening of the polls was as a direct result of the prime minister’s pathological tardiness in failing to provide the necessary funding in a timely manner, and his failure to exercise his constitutional responsibility with regard to matters pertaining to the CONSTITUTIONAL BOUNDARIES COMMISSION until the eleventh hour. Yet this member chose instead to insult and demonize the Supervisor of Elections, and the Commissioners. This was intellectual dishonesty at best, and pure dishonesty at worse.
The debate in the Senate, truth be told, was even worse. The exceptions being again the opposition benches, in the persons of Opposition Leader Gail Christian, and Senators Chet Greene and Lennox Weston, whose presentations were worthy of high praise.
Senator Sylvia O’ Marde also showed her grasp of the issues when she zeroed in on the offending sections 8, 9, and 10, and their incompatibility with the constitutional position of the supervisor of elections. The government senators, with the exception of the mover of the Bill, conformed to their usual lack of knowledge, their petty politics, and the usual buffoonery that one has come to expect from the comedians and the comedienne.
That said, the reasons given in support of the amendments by the government members and senators, with few exceptions, included the following spin: “the late opening of the polls at the general elections,” “the Supervisor of Elections is overwhelmed by her onerous statutory duties” (duties that are the purview of Supervisors and Electoral officers throughout the democratic world). “The splitting up of the duties of Ms Lorna Simon would make for a seamless operation” (by creating posts for unqualified political personnel a recipe for disaster), and that “the amendments are in strict conformity with the Constitution.”
It is clear for all and sundry to see that the Prime Minister, his Cabinet, and the leaders of his party are insulting the collective intelligence of the citizens of Antigua and Barbuda. The explanations proffered in support of the amendments by them and their political sycophants cannot be supported by either fact, logic, reason, or the law. The public can easily perceive and is clearly rejecting this clumsy and vulgar attempt at “rigging” the 2014 general elections.
CONCLUSION
The question now remaining to be asked is whether certain sections of the amended Act will stand up to legal scrutiny and challenge, because there is no doubt that a serious challenge will be mounted by Her Majesty’s opposition.
That apart, I can assure the Prime Minister, his cabinet, and the UPP hierarchies, these efforts to corrupt the Electoral Process are bound to fail, as there are built-in safeguards within the system designed to prevent any and all electoral fraud.
There will, however, have to be need eternal vigilance by all participating parties, and judicious use of the system of claims and objections.
Finally, I am not at all sure that the person appointed as Chief Registration Officer will be insane enough to attempt to corrupt the Register for Elections, thereby exposing himself to serious criminal and statutory penalties. After all, at the end of the day, a thoroughly unpopular government gets “booted out of office” by the electorate, and a culpable Chief Registration Officer faces criminal prosecution and likely imprisonment.
