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I have been around for so long that I can remember
the Mighty Sparrow when he was a teenager.
I was a 10 year-old student in Trinidad in 1956 when he won his first
Road March with “Jean and Dinah”. I was
12 years old when the West Indies Federation, now only a distant memory, was
formed, and I was 16 when it broke up.
When I was a
youth growing up, my Grenadian father worked for Tate & Lyle, a
multinational corporation with sugar interests in Trinidad and in Jamaica. Though neither Eric Williams nor Michael
Manley was a regular visitor to our home, my father’s involvement with them and
their governments was a topic for discussion around the lunch table. As early as the 1950s, my father and Dr
Williams represented employers and labour respectively at ILO meetings in
Geneva. Towards the end of our residence
in Trinidad, in the 1970 State of Emergency caused by the Black Power Uprising,
my father served on Dr Williams’ National Security Council. Dr Williams needed his company’s
pest-spraying aeroplanes to keep an eye on the mutinying army and to report
back to the loyal government forces that eventually overcame them. In later years, he told us many stories of
the outcomes of some of those National Security meetings.
I am sure that,
to the day he died earlier this year, Geddes Granger (Makandal Daaga), the 1970
leader of the Black Power Movement of Trinidad, was unaware of the role played
by the American CIA in defeating him.
They sent a black agent, sporting a huge afro hairstyle, to lead a mob
in smearing human excrement on the inside walls of the Cathedral of the
Immaculate Conception in Port of Spain.
This sacrilegious act was guaranteed to turn the mainly Roman Catholic,
urban, black middle-class resolutely against the Black Power Movement, ensuring
its collapse within weeks. I heard the
details of the story, brought back to the dinner table by my father from National
Security Council meetings, and recounted many times.
After he
negotiated the sale of Caroni Ltd by Tate & Lyle to the Williams administration,
my father was persuaded by Dr Williams to accept Trinidad and Tobago
citizenship for him and my mother as a gift from his Government.
In 1971, Tate
& Lyle transferred my father to Jamaica where, as Managing Director of the
West Indies Sugar Company, he ended his career selling the company’s assets to
the Michael Manley Government. The month
after he concluded negotiations for the sale of WISCO to the Jamaica government
in 1973, my father died. I well remember
the Prime Minister’s dramatic attendance at his funeral in Kingston. He arrived at the church by helicopter,
scattering the curious children who had come running into the churchyard to
find out what all the noise was about.
In addition to
what I learned of the foibles and cupidity of our governments at my father’s
lunch table, I have lived and worked as lawyer and judge in all nine countries
of our OECS, from Grenada in the south to Tortola in the north. To this day, I still read the digital
editions of one or more daily and weekly newspapers from most of them. I have been an observer of government in all
our nations, both independent and those still colonies. I have been honoured to have served as the
chairperson of a Constitutional Reform Commission in 2006 and a Constitutional
and Electoral Reform Committee in 2015, both established by Governments of
Anguilla. I hope the recounting of this personal
history persuades you that I have some basis of experience on which to comment
on our system of governance.
This is a
mighty mansion of a topic, and I do not pretend to be as qualified as some of
you in this room are to explore the depth and width of the many rooms and halls
of the structure. For the purpose of
this talk, I limit myself to a specific area of my concern. Why did independence go so wrong for so many
of us? What was the principal cause of
our national failure in constitution-building, and what, if anything, can be
done to remedy the situation?
To lay the
background to my premise, that our independence Constitutions have failed the
man on the St Georges’ mini-van, let me briefly compare what the US fathers of
their Constitution did to what the fathers of our West Indian Constitutions
did. And, in doing so, I will take some
liberties with accuracy in the interest of conciseness. For my purposes, I will paint the picture of
our state of affairs with a broad brush and with bright colours, eschewing
pastels and fine shading.
Between the Declaration
of Independence of 1776 and the adoption of the US Constitution in 1787,
and of the Bill of Rights in 1791, some 15 years of continuous debate
and amendment to the Articles of Confederation took place. The result of this concentrated, intellectual
focus is the present-day US Constitution, acknowledged to be the pre-eminent
exponent of the separation of powers and the rule of law. Today, the President nominates Supreme Court
Justices, but they are not appointed until the Senate approves. The President selects his Cabinet, but they
do not sit in Congress. The President
nominates them, but their appointment is subject to approval by the
Senate. In addition to legislative
checks on the Executive, there are legislative checks on the Judiciary. The Executive branch is vested with powers to
supervise both the Legislative and the Judicial branches. And, the Judicial Branch with its power to
declare laws unconstitutional, and to review actions of the government, is
possessed of checks on the Legislative and on the Executive branches. It is a written constitutional system that
has lasted, with amendment from time to time, for longer than any other written
Constitution in the history of the world.
By comparison,
what did we in the West Indies do? From
Jamaica and the Bahamas in the north to Guyana in the south, commencing in the
year 1961, we have stumbled from one unsatisfactory Constitution to the
other. With little or no public
involvement or public education, the Foreign Office bestowed our
Westminster-style Independence Constitutions on our unsuspecting people. Despite tinkering with the peripheries of the
system, our Constitutions have proven to be inadequate and unsatisfactory. Far from being confederated, our West Indies
are still divided, quarrelsome, ineffective, and ill-governed.
In my
submission, the principal defect in our institutions of governance has been a
lack of checks and balances in our Constitutions. The result has been universally acknowledged
poor government in all our states and territories. Where there is bad governance, it is the
people who suffer. The venality,
incompetence, and hubris, not to mention complicity in sacrilege, shown by our elected
leaders, cause outside observers to hold us in quiet contempt. The people demand that the system be changed,
and measures that guarantee good, accountable government introduced and
enforced through our Constitutions.
There are
three elements universally accepted as essential for good government. They are integrity, transparency, and
accountability. In the absence of
conventions promoting good governance, only the legal system can ensure
it. The highest form of law in our
region is the Constitution. We require
good governance institutions to be put in place protected by constitutional
guarantees.
Let us now look
at each of integrity, accountability and transparency.
Integrity in public life is an elusive objective at the best of
times. In the UK, parliamentarians have
gone to jail for fiddling their expenses, and, in the US, congressmen have been
indicted for accepting bribes. You will
search our islands largely in vain for any punishment meted out to politicians
known to have left office hugely enriched by their public service.
No sensible
person would suggest that our politicians are persons who naturally lack
integrity. However, the system of
government that we have inherited seems almost designed to encourage us to give
up our natural integrity. The obvious
solution is for our Constitutions to put in place ‘watchdog institutions’ that
are designed to ensure integrity in our systems of government. What are some of the most obvious ones? They are independent Interests Commissioners; professional Tenders Boards with security of tenure; constitutional restrictions
on dealing in public assets without
parliamentary approval; independent Appointments Commissions to review
all Ministerial appointments to Boards and Government Committees; and enforceable
Codes of Ethics for all persons in public life.
The Interests
Commissioner, sometimes called the Integrity
Commissioner, is intended to receive declarations and reports from public
officers of their assets and liabilities.
In most of our territories there is no requirement that public officers declare
their interests. And, if there is such a
requirement, there is no obligation for the declaration to be available for
public inspection. And, if the
declaration is not filed, there is often no punitive consequence. It is essential for us that this filing be
done before, during and after taking up office.
In the exercise of her functions the Integrity Commissioner is not to be
subject to the direction of any other person or authority. The appointment should be made by the
Governor-General after consulting the Prime 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
Constitution must provide that a Minister can be removed from office, with a
right of appeal, if the Integrity Commissioner finds that he or she has
breached the Code of Ethics for public life, or if he or she has failed to
comply with the registration of interests requirement on two separate
occasions.
We need Tenders Boards to be enshrined in our
Constitutions, and protected from outside influence. Much of our 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. In my island, I know of one contractor who
boasts that he has a “mole” in the Tenders Board who, for a commission, feeds
him information that will ensure that he or his partners are successful in any
bid. We must insist on the highest
standards and procedures in relation to procurement and tendering. We need appropriate laws and regulations to
set out how public contracts are to be awarded.
The Integrity Pacts recommended by Transparency International
would carry the process upwards to an entirely new level.
The third
requirement for ensuring integrity in public life is the constitutional
protection of public assets, mainly
land, mineral, and fishing rights. In
many of our territories, Crown lands and national assets are dealt with behind
closed doors. Since every matter
discussed in Cabinet is treated as a state secret, there is no public awareness
of proposals for the disposition of public assets. There is no accountability. The integrity of dealings in public lands
ought to be enforced by having a provision in the Constitution that any resolution
to deal in any significant public asset, say a half acre or more of land, is
required to be brought to the legislature for public debate and approval.
The British
have bequeathed to us a “winner takes all” system of appointments. Immediately a
new government is appointed, 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 new administration. We watch as they dismantle the Boards
governing Social Security, Public Utilities, Public Health,
the Tourist Board, Carnival Committee, and even the Poor Law
Board. We call it “enjoying the
fruits of office”. This system of
replacing one set of incompetent political appointees with another set makes a
mockery of the whole notion of good governance.
Either the Legislature or a constitutionally protected Appointments Commission should be
empowered to vet all appointments to government Boards, Committees and
Commissions before they take office.
Codes of Ethics for persons in public life should be put in
place and strictly enforced. The British
Cabinet Office has developed a series of handbooks to guide public servants and
ministers on the correct protocols to be followed by incoming Ministers. Other Commonwealth countries[1]
have excellent handbooks for Ministers, Legislators and other public
officers. These could easily be adapted
for our use. Workshops for incoming
Ministers, Boards of statutory corporations and public servants should be a
regular feature of the administration's drive to achieve good governance. All of persons in public life can benefit
from compulsory attendance at seminars and workshops on the meaning of
nepotism, cronyism, and conflicts of interest. If Judges and Lawyers can subject themselves
to Codes of Ethics, why not all public servants and politicians?
The second
area of checks and balances that promote good governance 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 are traditionally considered to be the Complaints Commissioner; a Freedom
of Information Act; and a functioning Public
Accounts Committee.
The Complaints
Commissioner is another name for the Ombudsman. Without an Ombudsman, the citizen must rely
for enforcing his rights against an unfair or biased public officer on going to
Court. And, we all know how expensive and
unsatisfactory that can be. We also need
an independent Police Complaints
Authority. Complaints by the public
against the conduct of a police officer are usually heard and determined in
private by the Commissioner of Police.
This system is not transparent, and leads to public distrust. Some progress is being made. Bermuda, Jamaica and St Lucia have introduced
statutory civilian oversight bodies, though these may only make recommendations
to the Commissioner who retains the primary duty to take disciplinary action
against officers. In the UK the Independent Police Complaints Commission[2]
has the power to take over a police complaints investigation and to make binding
recommendations to the relevant Chief Constable. What is certain is that it is no longer
satisfactory for complaints against police officers to be handled internally
and in secret as presently occurs.
We need to
consider constitutionally providing for a Human
Rights Commissioner: Today, the
citizen’s fundamental rights can only be protected by the individual at great
personal cost. The solution is to place
the protection of the individual’s rights in the hands of a publicly funded
institution. This is sometimes called
the Human Rights Commissioner or the Administrative
Justice Board.
In most of our
countries, it is nearly impossible to obtain any information on the programmes
or activities of any department of government, or to discover what files government
departments hold on us. Constitutionally
mandated Freedom of Information Acts are long overdue. There is no surer mechanism for guaranteeing transparency
than a FOI Act and the various regulations that make it work.
The Public
Accounts Committee is perhaps the most effective mechanism designed by our
Constitutions to enable Members of the Legislature to question and investigate
the manner in which public officers have spent the monies voted by the
Legislature. The PAC exists in theory in
all of our Constitutions, yet, due to lack of political will and lack of
training, it functions properly in few of our Territories.
The third key
element of good governance is transparency. It is the lack of transparency in our systems
of government that cause so many of our ministers’ actions to be wrongfully
categorised as corrupt. Contrary to
public opinion, most politicians are not engaged in making back-room deals and
accepting under-the-table packages. Only
the insecure and the deceitful among our elected leaders are afraid of showing transparency. The self-confident and the honest welcome
it: The introduction of mechanisms and
techniques for guaranteeing transparency would give them the tools to
demonstrate their honesty, effectiveness and integrity.
Systems that increase
transparency include the appointment of civil servants, teachers and the police
by truly independent Service Commissions;
the exercise of the prerogative of mercy by Mercy Committees; the regular revision of electoral boundaries by independent
Boundaries Commissions; and opening
up Cabinet Meetings and all government
committee meetings to the public.
Unless all
appointments to the teaching service,
the police service, and the public service generally, are constitutionally
placed in the hands of professional and independent Public Service Commissions, governed by appropriate laws and
regulations, and trained in the exercise of their functions, there will be no
public confidence in the independence and integrity of the public service.
In most of our
territories, the Governor has the constitutional power to function without any
local Mercy Committee to advise him on what to do about early releases
from prison. In some, the Prime Minister
can do it on a whim. This is a most
unsatisfactory state of affairs.
Independent,
politically balanced Boundaries
Commissions are essential to guarantee public confidence in our elections
systems. There is no reason why the
modern practice of having the electoral boundaries re-examined after every
population census should not apply universally.
Open Meetings legislation allows public access to government
meetings, and ensures that their decisions are transparent and publicised. There is no reason why the Constitution
should not contain a clause requiring all governmental meetings such as those
of Building Boards, Land Development Committees, Boards of Governors of Schools
and Hospitals, and Cabinet itself, to be open to the press and public, within
reason. The old, discredited practice,
probably deriving from an outdated British Official Secrets Act, of
hiding every decision and action of a department of government has proven
itself not to be conducive to good governance.
Departments of
government are generally expected to publish Annual Departmental Reports for laying before the legislature. This requirement was strictly enforced during
the earlier colonial period, but seems to have fallen into disuse in many of
our territories. These reports, even when they are prepared, seldom reach the
public eye. They should be insisted on,
and required to be published on government websites for the public to have
access to them at will.
If a common
sense approach to good government is ineffective, then the Constitution should
mandate that Cabinet meetings are opened up to the public whenever
possible. Post-Cabinet Press Conferences encourage public confidence in the
functioning of government.
In Anguilla,
we are taking integrity, accountability, and transparency a step further. The Constitutional and Electoral Reform
Committee, established by government to prepare a new Constitution and a new
Elections Act, has taken recommendations from the public. Anguilla wants to see a provision for a maximum
two-term limit for the Premier; a power for the electorate to recall an elected representative who
is felt to be performing unsatisfactorily; and for there to be a fixed date for general elections.
Too many of our Premiers and Prime Ministers develop a God-delusion, and,
worse, a sense of entitlement and ownership of the country if their party
continues to be elected to office beyond two terms, invariably resulting in a
deterioration in their integrity. The
Americans have cured this defect by instituting a maximum two-term limit after
the death of 3-term President Franklin Delano Roosevelt, and we can learn from
this salutary provision. Elected
representatives, particularly after they are appointed Ministers, sometimes lose
their awareness that the public placed confidence in their promise to
serve. A power of recall should serve as
a reminder of their vulnerability if they are seen to betray the confidence of
the public. A fixed date for general
elections is another obvious constitutional precaution against abuse of the
electoral system by a Prime Minister who becomes more conscious of his power
and privilege than of his promise to serve the public good.
In conclusion,
it is generally accepted that any form of government that does not encourage
public participation is the opposite of good governance. Since the introduction of universal suffrage
in the West Indies after the Second World War, democracy has flourished in
these islands. If bad government now seems
entrenched in our islands, we have no one to blame but ourselves. Our politicians may not always be of the
highest integrity, morals or standards. But,
by ensuring genuine accountability to the electorate, their greater excesses
can be restrained.
A public speech delivered at the Annual Law
Week of the Grenada Bar Association in St Georges, Grenada on 3 November 2016.
[1] See, eg, the excellent
series published by the Government of Queensland titled, The Queensland
Ministerial Handbook, The Queensland Cabinet Handbook, The
Queensland Legislation Handbook, The Queensland Protocol Handbook,
and Welcome Aboard: A Guide for Members of Queensland Government Boards,
Committees and Statutory Authorities.
