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CCM walks a tight rope with petition ruling

The ruling by the learned Judge might on the surface appear as if it is the end of the road for the first Respondent, Mr Hensley Daniel, based on the first order by the Judge, “The Nevis Island Assembly Election for the Constituency of Nevis 2 (Parish of St. John) held on the 11th day of July 2011 is hereby declared invalid and void.”

 

When one looks at the pertinent reason why the election petition was filed in the first place, then Justice Lionel Jones’ orders number two and three should stop CCM supporters in their tracks. The loud cheers will trail off when reality sinks in and they discover that the Petitioner’s crusade and ranting that 203 properly registered names were unlawfully removed from the voters’ list did not strike a chord with the learned Judge.

 

Said the Judge in his second order: “The order sought declaring that the Electoral Commission acted in contravention of section 33 (4) of the Constitution in failing to take steps to ensure that the persons listed in the First Schedule of the petition were allowed to vote and also failed to ensure that the 2nd Respondent took steps to do so is refused.”

 

By 2nd Respondent, the Judge was referring to the Supervisor of Elections, Mr Leroy Benjamin. It is instructive for one to wind back and remember that prior to the election petition, an old audio tape where Mr Benjamin is heard saying that while he lived in Basseterre that he actually travelled to Sandy Point, where he had been re-confirmed, to vote.

 

On page 36 of the judgment, the Petitioner has made reference to that statement by Mr Benjamin, which would have been aired on ZIZ Radio and Television on January 11, 2010. Voice of Nevis (VON) Radio played it on January 12, 2010 (according to the Petitioner). The Judge made reference to the same statement on page 119. The statement had been issued ahead of the January 25, 2010 Federal election.
What the Petitioner and his sympathisers failed to say is that after the Federal election the Supervisor of Elections took to the national airwaves on February 3, 2010 and advised all and sundry that if one had already moved from where they had originally registered that they must move their name on the voters’ list to reflect the new area of residence.

To quote Mr Benjamin: “For persons who moved from one location, village or town to another place; let’s say you were living in Mansion, Molineux, Lodge or Ottley the village where I was born, and was registered in any of the above villages in Constituency #7, but have since moved to your new place of residence which is now Buckleys or West Farm, you should come to the office in Basseterre, report your change of address, fill out form # 7. The office will assist you and have your name transferred to Buckleys or West Farm which is in Constituency # 3. The only time of the year this can happen is February 1st to February 10th each year.

“I urge every citizen or resident person who has changed their place of living, have changed their address and is no longer living where they once lived to go to the Electoral Office in Nevis and St. Kitts and update your true place of Residence. When you go to the offices, be truthful. Give your true place of abode, when registering for the first time or relocating to a new location, avoid the temptation of trying to assist a Politician you like or a Political party you love.”

Mercifully, it appears as if the second audio recording by the Supervisor of Elections was not heard by the Petitioner’s side. The message in the January 11/12, 2010 audio tape was taken out of context and played over and over and it made the gullible believe that one could still vote where they did not live.

In his January 11, 2010 message, Mr Benjamin was advising that he had lived and registered in Sandy Point, but in June 1993 he moved to Basseterre. Elections were held in December of the same year (1993) and because he was still registered in Sandy Point, he had to return to vote there as it was still outside the transfer window offered in the month of February that would have allowed him to move his name.
That the 203 names had been removed unlawfully, as the Petitioner alleged, he had sought that the same names to be restored. Justice Jones, in his wisdom gave the third order, which stated: “The order sought that the Court should order that the names of the voters who were unlawfully removed from the list be restored is refused.”

Why did the Judge make the third order? On page 144 Justice Jones said: “The Petitioner has included in his prayer at Item 5 – “that the Petitioner may have such further or other relief as may be just”. He has asked the Court on the basis of that prayer to order that the names of the voters who were unlawfully removed be restore. I agree with Mr Astaphan (lawyer for the first Respondent) that no such relief was pleaded.

“Such a prayer in the context of an election petition is much too general. It is not open to the petitioner to make such a general statement and at the end of the case seek to use it to support some specific relief.”

The Petitioner has said on his weekly ‘On The Mark’ talk show on VON Radio (on March 21), that the Judge refused because he deemed the action to remove the names as null and void. However, while the Petitioner had presented 203 names, the Judge said that the only disenfranchised voters were those who did not receive the objection notices because the Post Office could not find them, and those who received the notices late. The Petitioner also told the Court that he could not trace many of them.

If the Petitioner was seeking to have 203 names restored, and the Judge determined that not all were disenfranchised and he refused to accede to the Petitioner’s prayer that all the 203 names be restored, are we not experiencing a black hole effect here? According to the learned Judge, some of them were not disenfranchised, and there is no way he could have issued an order that leaves gaps to be filled.
The Judge’s order refuses the order sought by the Petitioner that the names of the voters who were unlawfully removed from the list be restored. The Petitioner had listed the 203 names as the First Schedule of the petition. The order by Justice Jones effectively locks them out. They will have to register where they now live to vote in the bi-election if and when it is held.

What is interesting is that after the petition case was heard, the Petitioner’s side was able to find the Benjamin audio recording of February 3, 2010. A few weeks ago, before Justice Jones handed down his decision, it was played by Alexis Jeffers on the talk show ‘On The Mark’ on VON Radio, and his remarks were (paraphrased):  “The Supervisor of Elections is confusing us.”

However, since then, the Petitioner’s side has been scurrying the voters’ list and have made scores of objections, here strongly basing their actions on the pronouncements of the Supervisor of Elections in his February 3, 2010 message, which they could not have found when they filed the petition. It is the same message that Parliamentarian Eugene Hamilton in St. Kitts used and was successful in having a number of names removed from the voters’ list in a Court ruling by Justice Francis Belle.

The fourth order by Judge Jones is as interesting as it is telling. The Petitioner argued that his party was not allowed to use the government owned Nevis Television to air their political meetings. The Premier, Joseph Parry, has since clarified that the station covered only activities of the government and not election campaign meetings, other than when he announced dates of the elections.

Said the Judge: “I declare that the petitioner’s right to freedom of expression and his right not to be treated in a discriminatory manner by reason of his political opinions guaranteed under sections 12 and 15 of the Constitution of Saint Christopher and Nevis have been contravened by the failure of the Nevis Island Administration on its nightly Nevis News Cast to cover any of the political events organized by the Petitioner’s political party during the campaign leading up to the election of July 11, 2011.”

This is a very interesting ruling by Justice Jones. With this order, it also means that both the parties, not only the Concerned Citizens Movement as ordered, will now enjoy this publicly-funded communication tool.
Are supporters on the Petitioner side still celebrating? They have the Constitutional right to do so, including holding motorcades and rallies. But they should sit and ask themselves why Justice Lionel Jones made the fifth order: “With respect to costs, I order all parties should bear their own costs.”

Even though the Judge’s first order has declared the July 21, 2011 elections in the Parish of St. John invalid and void as the Petitioner would have sought, the Court did not in any way impute that the first Respondent, Hensley Daniel, committed any election offence. The Petitioner’s side had conceded to that during the election petition hearing.

And where do we go from here? The Premier of Nevis, the Joseph Parry has stated, in part, that “Following the handing down by Mr Justice Jones of his Decision, Mr Daniel and I immediately gave instructions to our lawyers to file an appeal against the Decision of the Judge…. The appeal has already been filed and is now in the hands of the Court.”

The Premier noted further: “In addition to these appeals, Mr Daniel has instructed his lawyer, Henry Browne and I have also instructed my lawyer, Oral Martin, to file the necessary documents to stay, that is to put a halt, to the Decision of the Judge, until the appeals are heard. This means that my Government remains firmly in place and the rule of law will be upheld.”

There is talk that the NRP is now a minority government. That is looking at the matter in an abstract manner. Looking at the matter unmistakably and assuming that a bi-election will be held within 90 days as stipulated by the Constitution, the present government will function until such bi-election is held. It is not logical to suggest that it won’t have a majority because the ruling party will be having two elected members and the opposition will be having elected two members. How does one get the minority part?

It is a myopic view to talk of a minority at this stage because as it stands, and even the opposition is cognisant of the fact, the ruling Nevis Reformation Party has two nominated members, which then makes four their number in the House of Assembly in the absence of Mr Hensley Daniel — that is simple arithmetic. On the other hand the Concerned Citizens Movement is supposed to have one nominated member, whom they are yet to name.

The maximum members the CCM can have before the bi-election is two elected and one nominated, which adds up to three. Are they saying that three is greater than four? The Nevis Island Assembly, should a bi-election be imminent, will have a majority on the Nevis Reformation Party side until the bi-election is held.

And as mentioned earlier Mr Hensley Daniel did not commit an election offense, and if and when a bi-election is held, he is a qualified candidate for the St. John’s Parish seat, and has supporters who put him in that august house in the first place. The Petitioner’s craving to add 203 names to the St. John’s voters’ list has spectacularly failed.

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