Letter of 14 May 2014 to the Father of the
Nation, James Ronald Webster, on the Question of Independence for Anguilla, Written
at his Request, together with his Reply, Both of Which Were Published in the
Anguillian Newspaper
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We spoke today about the question of Anguilla’s
need eventually to seek political independence from Britain. You expressed an interest in my views on any good
governance prerequisites before independence could be safely achieved. I promised to put my views in writing for you,
and I do so now. You are free to share
these views with anyone you choose, even as I am constantly doing.
We need to have in place a
reliable and trusted system of checks and balances before we entrust our lives
and property to an independent and unsupervised Cabinet of ministers. We know this from observing what has happened
over the last 50 years to our brothers and sisters in our unfortunate
neighbouring Commonwealth Caribbean Countries, since they achieved political
independence. We also need to prove to
ourselves that we can handle the burdens of greater self-government. The standard of governance shown by the
various political parties in the past several years, even under British
oversight, has fallen short, and left many persons disenchanted with the notion
of independence at this time.
The three essential
ingredients for the good governance of Anguilla are well known. They are (A)
integrity, (B) accountability,
and (C) transparency.
(A) Integrity: The
system of government that we have inherited seems almost designed to encourage
us to give up our natural integrity once we achieve political power. The
obvious solution is to put in place ‘checks and balances’ to ensure integrity
in our system of government. We shall
consider (i) the Interests Commissioner; (ii) the Tenders Board;
(iii) dealing in Crown land; (iv) an Appointments Commission; and
(v) Codes of Ethics.
A(i) Interests Commissioner: This office is sometimes called the Integrity Commissioner. It is designed to receive declarations and
reports from public officers of their assets and liabilities. The citizen needs to know with what assets a
public servant commences public service, so that, in the event of an
unexplained jump in his wealth, inquiries can be made to determine whether the
windfall was legitimate or the result of corrupt conduct.
The Constitution itself
should establish the office of Integrity Commissioner and provide a framework
for its operations that ensures its independence and impartiality. The exercise of his functions is not to be
subject to the direction of any other person or authority. Similar to the existing provision for judges,
the office should not be allowed to be abolished during its tenure. The appointment should be made by the Governor
after consulting the Chief Minister and the Leader of the Opposition. The Constitution should provide a
mechanism to ensure that the office receives the resources needed to carry out
its functions. The Commissioner can remove
a Minister from office if he or she has breached the Code of Conduct for
Ministers, or if he or she has failed to comply with the registration of
interests requirements on two separate occasions.
An Integrity Act by
itself, without entrenchment in the Constitution, is not
sufficient. Without such entrenchment, the
Commission could be shut down tomorrow if the Governor were dissatisfied with
it.
A(ii) Tenders Boards: The second essential institution for ensuring
integrity in government is a constitutionally protected Tenders Board. Much of Anguilla’s capital budget is spent on
developing infrastructure, repairs and maintenance. Procurement of goods and services, relating to
contracts for roads and schools and offices and hospitals, offers the most
attractive opportunities for those who wish to corrupt the process and
illegally enrich themselves. Our procurement system is essentially
lawless and unregulated. It is an
invitation to sharp practices.
Our Tenders Board has no
tenure, or guarantee of independence. The
risk is the inevitable resulting corruption will damage not only government,
but also companies and individuals in our communities. A genuine Tenders Board is one established by
the Constitution and insulated from outside influence. A Tenders Board Act by itself is not a sufficient
guarantee of integrity.
A(iii) Crown land: The third requirement for integrity
in public life is the constitutional protection of public assets, mainly land. In Anguilla, Crown land is dealt with under
the signature of the Governor. In
practice, the Governor relies on the advice of Cabinet. There is no public awareness of proposals for
the disposition of public assets. The
integrity of dealings in public lands ought to be ensured by having a provision
in the Constitution that any resolution to deal in any significant area
of public land, in our case a half acre or more, is required to be brought to
the House of Assembly for public debate and approval.
A(iv) Appointments Commission: At present in Anguilla,
we have a ‘winner takes all’ system of appointments to boards, committees and
commissions. Immediately a new
government is appointed after general elections, the first order of business is
to terminate the previous political appointees and to share out the various
directorships among the principal supporters of the various new Ministers. Every five years they dismantle the Social
Security Board, the Public Utilities Board, the Public Health
Board, the Tourist Board, the Carnival Committee, even the Poor
Law Board. We call it “enjoying the
fruits of office”. This system makes a
mockery of the whole notion of good governance. We need to take a leaf out of the British book
and have all appointments vetted by an independent body established by the Constitution.
This will go some way to ensuring that
Ministers appoint only qualified persons to these positions. Given the infrequency with which the situation
develops, there is no need for a separate Commission to be established. The functions can easily and effectively be
assigned to an existing office such as the Integrity
Commissioner.
A(v) Codes of Ethics: When, at the request of a supporter, a Minister
telephones the Police Station seeking “a chance” for a young person who has
been arrested, he thinks he is responding to the needs of his community. When the Minister gives out work permits to
one favoured building contractor, but not to another, he says he is “levelling
the playing field”. When the Cabinet
overrules the Chief Immigration Officer or a Planning Committee decision, they
say they are only “showing a good heart”, and softening the harsh decisions of
unfeeling bureaucrats. But, it is quite
the opposite: they are corrupting the system that has been designed for the
even-handed protection of all citizens. These are all common occurrences in Anguilla.
After the February 2010
general election, relations between the then Governor and the newly elected
Ministers collapsed. The problem appears
to have been that the members of the new government did not know how Ministers
are supposed to conduct themselves in office. New Ministers attempted to enter into
contracts binding on government, not being aware of the correct procedure to
follow. When their Permanent Secretaries
attempted to correct them, they were viewed as frustrating the Minister's programme.
Ministers then accused their Permanent
Secretaries of joining with the Governor in undermining them. On one occasion, the new Chief Minister, instead
of requesting of the Governor that he appoint an acting Chief Minister in his
absence, had one of his Ministers write a memo to all Department Heads
informing them that he had been appointed as acting Chief Minister and
directing them that they should govern themselves accordingly. The Governor’s office was obliged to circulate
a memorandum to all departments advising that no such appointment had been
made. This crisis was caused by lack of
training.
Persons in public life are
not regularly taken through seminars and workshops on the meaning of nepotism,
cronyism, and conflicts of interest. Positive
steps are required to train our Ministers, public servants, directors of public
and private boards, and committee members in generally accepted ethical rules. In Anguilla, this necessity has been
recognized by the public service. Civil
servants have developed and adopted a Code of Ethics to govern
themselves. Our judges have bound
themselves to a code of judicial conduct. Our lawyers have committed to a binding code
of ethics. If Civil Servants, Judges and
Lawyers can have them, why not Ministers?
(B) Accountability.
The second area of checks and balances that promote good governance, and that
one would expect to see given emphasis in the Constitution, is that of
accountability. There are recognised
devices, other than general elections every 5 years, which ensure that
government is held accountable for its actions and omissions. These include (i) the Complaints Commissioner; (ii) the Police Complaints Authority; (iii) the Human Rights Commissioner; (iv) a Freedom of Information Act; and (v) the Public Accounts Committee (PAC). Not one of these vital mechanisms
exists in Anguilla. In addition, (vi) as
a prerequisite for eventual independence, we need to increase the
responsibility of local institutions by insisting that the British Government
keeps to its promise of Partnership
with us. While they have all the power,
we are not really a partner with them.
B(i) Complaints Commissioner: This is
another name for the Ombudsman. Without an Ombudsman or Complaints
Commissioner, the citizen must go to court to protect his rights. And, we all know how expensive and
unsatisfactory that can be. The
Ombudsman, on the other hand, is free of cost to the complaining citizen, is
completely independent of any politician or public servant, and reports only to
the Legislature. If the quarrel with the
establishment of the office is the question of its expense, there is no reason
why the function of the Ombudsman should not be combined with other watchdog
functions.
B(ii) Police
Complaints Authority (PCA): At present, complaints from the public against misconduct
by a police officer are heard and determined in secret by the Commissioner of
Police. This system is not transparent,
and leads to public distrust. It is not
satisfactory for complaints against police officers to be handled internally
and in secret. There is no reason why,
in the interests of reducing costs, the functions of a PCA cannot be combined
with one or other of the recommended watchdog institutions.
B(iii) Human
Rights Commissioner: One of the
complaints frequently heard is that the citizen’s fundamental rights can be
protected only by the Anguillian individual at great personal cost. The solution is to place the protection of the
individual’s fundamental human rights in the hands of a publicly funded
institution. This is sometimes called
the Human Rights Commissioner or the Administrative
Justice Board.
There are many different
types of national human rights and administrative justice institutions in the
Commonwealth. They include Human Rights
Commissions, Gender Commissions,
Racial Equality Commissions, and Anti-discrimination Commissions.
To minimize cost, a hybrid
Complaints Board could be empowered
by the Constitution to deal with all the oversight matters of
corruption; conflicts of interest; abuse of office; police and prison
complaints; and ethics issues affecting Ministers of government, civil
servants, parliamentarians, and officers of statutory corporations.
B(iv) Freedom of Information (FOI) Act: In Anguilla it is nearly impossible to obtain
any information from any department of government. This undesirable situation would be cured by
an effective FOI Act. Freedom of
information legislation is also sometimes called “open records” law. There is no surer mechanism for guaranteeing
transparency than a FOI Act and the various regulations that make it work.
The FOI Act is a law which
sets rules on the access to information or records held by government. Such a law defines the legal process by which
government information is required to be made available to the public on
request.
What the FOI Act does is
to alter the burden of proof. The burden
of proving that the matter requested should be kept confidential rests on the
person who argues that it must be kept confidential. The assumption is that the public has a right
to all information kept by government. You
may ask for a copy of any document without having to give any reason why you
want it. If the information is not
disclosed, a valid reason has to be given. If the reason is unacceptable, you can appeal
to the Commissioner of Information
to make a ruling, and to enforce his ruling.
Senior administrators violently dislike and are strongly oppose the
FOI. It should be entrenched by putting
its establishment in the Constitution to ensure it cannot easily be
dismissed.
B(v) Public Accounts Committee (PAC): The PAC can be an effective mechanism to
enable members of the Legislature to question and to investigate the manner in
which public officers have spent the monies voted to them by the Legislature. In Anguilla, no PAC has ever been appointed,
far less functioned as it should. In
Anguilla the PAC is not established by the Constitution, but is
mentioned only in the Assembly’s rules of procedure
B(vi) Partnership
with the British: Some of the
institutions suggested in this paper involve a transfer of power from the
Governor to local institutions, eg, the independent Service Commissions. There
is need for more devolution by way of a new Constitution in preparation
for eventual independence. It is time
that the Constitution provides that the Chief Minister, and not the
Governor, chairs Cabinet
meetings. The appointment of a new Governor should be made by the FCO only after
consultation with the Chief Minister and the Leader of the Opposition, who should
have a right to see the curriculum vitae
of the proposed appointee. The size of Cabinet should be increased
from the present 4 to at least 6 persons to take account of the increased
burden of government. The ex-officio members of Cabinet may
remain in Cabinet meetings to advise, but they should have no vote.
The Governor must be
required to consult with the Chief Minister on the use of his reserved powers. The Governor should no longer have a power to
refuse to assent to a Bill once
passed by the House. Nor should the
Secretary of State have the power of disallowance
of a Bill passed by the House of Assembly, save in strictly limited situations.
As a British Overseas Territory,
Anguilla is a colony, and the British retain other effective mechanisms to
reign in an outlaw or out of control government.
Belonger status should not be defined by British citizenship, since so many Anguillians have had to renounce
British citizenship to enjoy the privileges of the country where economic
hardship has driven them to migrate temporarily. Retaining British citizenship as a qualifier for
public office deprives Anguilla of the services of these persons when they
return home.
Nominated Members of the House of Assembly should be done away
with, as they are unelected and their presence is undemocratic. Several of the seats in the House should be
reserved for Members elected at large
to reduce the number of small constituencies that can be bought by wealthy or
influential politicians. Campaign funding should be regulated by
law so that politicians are compelled publish an audit on a regular basis. Ex-officio
Members may stay in the House to advise, but should have no vote.
The number of elected Members should be increased to ensure there are
more elected Members than Ministers in the House, and the House is no longer a
mere committee of Cabinet (there are at present 7 elected members, 4 of whom
are Cabinet Ministers). With the
proposed 6 Ministers that will require a House of at least 13 elected Members,
only 2 more than the present number of 11 Members (including the 2 Nominated
and the 2 Ex Officio Members).
A vote of no confidence in a Chief Minister
should take a simple majority instead of the present three-quarters. This will help to ensure that a Premier
cannot continue to rule with a minority government. The present often ignored convention that
such a motion should be given priority by the Speaker should be spelled out in
the Constitution to ensure that the Speaker cannot at the Chief Minister’s
request subvert the system.
The Police and the Public
Service should be under independent
Commissions and not the Governor.
If the British really mean
what they say about partnership,
they must take these steps to prepare us for increased experience in self-government
prior to our seeking full independence.
All of the above suggestions should be entrenched by placing them in a
new Constitution and given several years to work before we consider a
referendum for Independence.
(C) Transparency. The third key element of good governance is
transparency. It is the lack of
transparency in our system of government that causes so many of our Ministers’
actions to be wrongfully categorised as corrupt. The obvious solution is to institute systems
that increase transparency. These
include (i) the appointment of civil servants, teachers and the police by
independent Service Commissions;
(ii) the exercise of the prerogative of mercy by a locally appointed Mercy Committee; (iii) the regular
revision of electoral boundaries by an independent Boundaries Commission; (iv) the opening up Cabinet Meetings and government committee meetings to the press;
(v) instituting the regular publication of annual departmental reports; (vi) holding post-Cabinet press conferences; and (vii) providing
for the appointment of a Director of
Public Prosecutions (DPP).
C(i) Service Commissions: In Anguilla, all appointments to the public service, the teaching service, and the police service, are in the hands of one
person, the Governor. He consults with a
Public Service Commission (PSC), but need not follow its recommendations. The thinking is that this mechanism guarantees
the independence of the civil service and protects public officers from
political interference. To put all public
service appointments in the hands of an FCO functionary who may be advised
behind the scenes by those cronies that he and his superiors may have selected,
is not an acceptable alternative to an independent and professional PSC. In any view, arbitrary one-man rule can never
in any circumstances be an improvement in good governance.
The public is unlikely to
accept that there is transparency and fairness in public service appointments
unless such appointments and related matters are constitutionally placed in the
hands of a local, professional, and independent PSC, governed by the
appropriate laws and regulations and trained in the exercise of their
functions.
C(ii) Mercy Committee: The Governor has the
constitutional power to pardon convicted persons without any local Mercy
Committee to advise him on what to do about early releases from prison. A foreign diplomat would be unlikely to have
first-hand knowledge about who deserves to have his sentence shortened or
commuted. He must rely on the advice of
some unknown advisers lurking in the darkness around him. This is a most unsatisfactory state of
affairs. This power ought to be
exercised by a Mercy Committee with the Governor as Chairman.
C(iii) Boundaries
Commission: There has been no alteration to the electoral boundaries for
several decades. Some of the political
constituencies are a small fraction of the size of others. Good governance demands that our people have
more or less equal representation in the House of Assembly. There is no reason why the modern practice of
having the electoral boundaries re-examined after every population census
should not be required by the Constitution to equally apply in Anguilla.
C(iv) Open Meetings: Open meetings
legislation allows public access to government meetings and ensures that their
decisions are transparent and publicised. The old, discredited practice of hiding every
decision and action of a department of government is not conducive to good
governance. In California, any decision
not made in open meeting is voidable in a court of law. A similar provision could be made for Anguilla
now, but putting it in the Constitution ensures it cannot be
discontinued at whim. The Constitution
should contain a clause requiring all governmental meetings such as those of
the Building Board and the Land Development Committee to be open to the press
and public.
C(v) Departmental
Reports: Departments are generally
expected to publish annual reports for laying before the House of Assembly. This requirement was strictly enforced during
the earlier colonial period. The
practice seems to have fallen into disuse in recent decades.
The departments will deny
that they have stopped reporting. They
will claim that they do submit their reports to their Ministers. That is not the issue. The question is are they published, or are
they kept secret? Members of the House
of Assembly ought to be more vigilant in insisting that Ministers expose the
workings of their Ministries and Departments to the people. Governors and Deputy Governors should insist
on publication. It would help ensure
good governance if the Constitution mentioned the requirement.
C(vi) Cabinet Press Conferences: Cabinet meetings should be opened up to the
public whenever possible. At the very
least, post-cabinet press conferences should be regularly and diligently held
so that the public may be informed as to decisions taken in the public
interest.
C(vii) Director of Public Prosecutions
(DPP): It is not acceptable for the
Attorney-General to be the prosecutor in all serious charges tried in the
criminal assizes. In Anguilla, the A-G
also sits in Cabinet and rubs shoulder with the Governor and his Ministers. It is generally accepted that it is not in the
interests of good governance to have the prosecutorial arm of government under
the control of a Cabinet member. Such a
state of affairs offends against the doctrine of the separation of powers.
Political considerations
should never affect the enforcement of the criminal law. Prosecutions of serious criminal charges
should be separate and independent of government. This is achieved by entrenching the DPP in the
Constitution and guaranteeing that his actions are to be performed
without interference from anybody.
When the rebelling
colonists in the Thirteen Mainland Colonies in America contemplated an
independence Constitution, their leaders placed “checks and balances” in
it to guarantee their freedom. So, the
President nominates a Supreme Court Justice to fill a vacancy in the highest
level of the judiciary. But only the Senate
Judiciary Committee can confirm his appointment. The President nominates a Secretary of State
to the Cabinet. But only the Senate can
approve this appointment to the highest level of the executive branch of
government. Sometimes, these checks and
balances frustrate a President in achieving his goals. But the fathers of the American
Constitution considered this a reasonable price to pay to ensure that there
could never be a dictatorship in the United States.
We deserve our own
constitutional checks and balances to guarantee good governance when
independence comes, as it inevitably must.
We must prove to ourselves that we can run a transparent and democratic
government by a transfer of some of the present powers of the Governor to local
institutions, prior to advancing to independence. These must be put in place in a new Constitution,
and they must be shown to function effectively, before there is any referendum
on independence.
Further debate in Anguilla
will reveal what other mechanisms than the ones I have set out above are
considered equally vital.
I look forward to
discussing these ideas with you at any time you should desire to do so.
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Mr Webster’s Reply, Published in the Anguillian
Newspaper of 11 July 2014
Let
me first thank you for your letter to me of 14 May, which I have read with
great interest.
I
agree with you that our peoples’ distrust of governors and politicians is so
great that they must be protected by including in our next Constitution all of
the watchdog institutions you recommend. While our older generations of politicians are
discredited, I have confidence that a new generation will come who will rise
above petty name calling and political intrigue. They are the ones I am depending on to take
the government of this island to the next level. Anguilla definitely needs a change in every
sense of the word, politically, socially, and culturally, to name a few. We need to strengthen the reins, not tighten
them.
In
1969 we were in a plight. We had a
mandate granted by referendum to change the government of the Associated State
of St Kitts, Nevis and Anguilla to one of an independent republic. The British intervention of that year changed
the plans, until we are now back to full colonial status. Over the intervening period of time, that has
served a purpose. Now we need to move
from youth to adulthood. We have to
continue the struggle, for the benefit of the history and people of Anguilla
who are still growing up.
Since
1980 we have had no explanation from the British government on what we ought to
do from here on. They signed an Order in
Council in 1982 between us and them as an agreement, but with only them signing
it. We are now at a stalemate. I want us to move away from that situation,
and for us to discuss with an open mind what is needed for our protection and
our progress in the future.
Now
that we are about to have new elections, it is important that we at least have
an idea of what is actually needed for us to progress politically. We can remain a dependent territory if we want
that. We cannot go back to the old
Constitution of 1976. We have passed
that. We do not want the British to sit and feel that we are not going to
develop politically. We are ready to
open a new chapter. We need to go beyond
the 1982 Constitution. It is
antiquated’. We need to pick up from
where we stopped in 1969. We want to
move on from where we are now and where we were before, not stand still.
There
must be no doubt about what we want or where we want to go. We have to progress
up the hill. There must be a
continuation of the struggle, not an acceptance of the status quo. Any new Constitution short of independence must
be just a new chapter to get us to where we want to go. I want to make sure that whatever is done, the
British Government understands we still remain the Queen‘s loyal subjects so
long as she wants us. But, we will one
day have to decide for ourselves where we go from here. We need a new
Constitution that takes us forward. Full political independence is the ultimate
aim for a future day.
Yours sincerely,
J Ronald Webster
Cc: HE the Governor, Ms
Christina Scott
Hon
Hubert Hughes, Chief Minister
Mr
Victor Banks, Political Leader of the AUF
Hon
McNiel Rogers, Leader of the Opposition
Hon
Edison Baird, Independent
Ms
Palmavon Webster, Independent
Rev
Dr Clifton Niles,
Mr
Sutcliffe Hodge
Public
Media
