I have been around for so long that I can
remember the Mighty Sparrow when he was a teenager. When he won his first Road March aged 18 with
“Jean and Dinah” I was a 9-year old student.
When the West Indies Federation was formed I was a 12-year old. And when it broke up I was 16 years old.
Geddes Granger
was the 1970 leader of the Black Power Movement of Trinidad. It is likely that to the day he died last
year Makandal Daaga, as he preferred to be called, was unaware of how the
government destroyed his Movement. At
the urging of the Eric Williams Administration the CIA sent in a black agent sporting
a huge Afro hairstyle to infiltrate the Movement. He led a Black Power mob in an invasion of
the Cathedral of the Immaculate Conception in Port of Spain. They smeared human excrement on the inside walls. This was guaranteed to turn the mainly Roman
Catholic, urban, black, middle-class citizenry resolutely against the Black
Power Movement. You will not be
surprised to learn that this “black ops”
strategy was so successful that the Movement entirely collapsed within
weeks. I heard the details of the story brought
back to the family dinner table by my father from National Security Council
meetings he attended. He told the story and
others like it many times over the years.
The politician
Bhadase Maraj was the leader of the sugar workers’ trade union. My father was the managing director of a
large Trinidad sugar company. They had
to negotiate with each other over wage increases every year. At the time I was naively shocked to learn
that they secretly met together late at night to agree what would be the result
of the coming negotiations. The company
and the labour leader agreed in advance when there would be a strike and what
the outcome of the strike would be. Mr
Maraj was a very successful elected politician and labour leader over many
years.
In addition to
what as a boy I learned of the tricks and stratagems of our nations’ political leaders
I have lived and worked as lawyer in two, and as a judge in all nine, of our
OECS countries from Grenada in the south to Tortola in the north. To this day I still enjoy reading the digital
editions of one or more daily and weekly newspapers from most of our island
countries. A very few of them are
occasionally brave enough to publish revelations of government misconduct. As a result I feel I have some basis on which
to comment on our system of governance.
Let us start
by considering why the US Constitution, by contrast with ours, has been so
successful over two centuries in providing corrections for their instances of bad
government? What did the mothers and
fathers of our Commonwealth Caribbean Constitutions miss when our
constitutional arrangements were being carved out of the mass of available
precedents?
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 original Articles of Confederation took place. The result of that concentrated, intellectual
focus is the present-day US Constitution.
It is 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.
And the
Judicial Branch with its power to declare laws unconstitutional, and to review
actions of the government, is a check on the Legislative and Executive
branches.
It is a
written constitutional system that has lasted longer than any other written Constitution
in the history of the world.
By comparison what
did we West Indians do during the early independence period?
·
With little or
no public involvement or public education the Foreign Office bestowed its
Westminster-style Independence Constitutions on our unsuspecting people with
the willing collaboration of our leaders.
·
Since then from
Jamaica and the Bahamas in the north to Trinidad and Guyana in the south we
have stumbled from one unsatisfactory new Constitution to the other with little
or no sustained public debate or participation.
In my
submission the principal defect in our institutions of governance has been the
absence of checks and balances in our Constitutions. The result of this lack has been universally
acknowledged poor governance in all our states and territories. Where there is bad governance it is the
people who pay. The daily demonstrations
of venality, incompetence, and hubris shown by our leaders cause the ordinary
person to hold our constitutional arrangements in quiet contempt.
The people
demand that the core of the system be changed.
Measures that guarantee good government must be introduced and enforced
through our Constitutions. What use is a
law that states that a national Budget must be presented to the House of
Assembly each year by a certain date?
That provision must be in the Constitution for a citizen to be empowered
to take steps to enforce it. It is only
if checks and balances reside in the Constitution that corrective measures will
be safe from sabotage and the average concerned citizen will be able to seek
the help of the court to ensure compliance.
Antigua and Barbuda is not the only
West Indian country where a Judge of the Supreme Court can retire from the
bench and move smartly into well-paid employment by one of the most frequent
litigants who appeared before him previously.
What confidence can our people have in
the rule of law when our judges are willing immediately after they have brought
their judicial career to an end to take up employment with a litigant who
repeatedly appeared before them? Such
conduct brings the judicial bench on which he swore to serve to the best of his
ability into public contempt. When that
happens we should not be surprised if the disappointed litigant wants to go
back and look at the judgment the judge delivered against him even while he was
contemplating taking up such a questionable post-retirement career.
Antigua and Barbuda is not the only
Caribbean country where Ministers of Government retire as millionaires after a
few years of allegedly public service.
We accept it as part of the perks of
office that a Minister can, with apparent impunity, both divert public
resources for his or his friends’ benefit and accept gifts or ‘campaign
donations’ for the award of government licences and permits. What
type of public leadership do we have when our Ministers act as what in Sicily
is known as the “Capo di tutti capi”?
Antigua and Barbuda is not the only OECS
country where a police officer can spend his entire career having done nothing
more onerous than moving brown-paper bags of money and contraband from one part
of the country to the other.
What guidance do we offer our youth
when they view law enforcement as nothing more than a drugs gang, an armed one operating
with the full force of the State behind them?
As the late Tim Hector explained in
‘The Outlet’ many years ago when he questioned how Immigration Officers could
meet Santo Domingo ladies at the plane door and escort them to their places of
work all while wearing their official uniforms, ‘First they start by providing
protection services; then they realise
they can make more money owning the business’.
In my view a concern over whether the
Senate should be abolished, or an elected Chamber put in its place, or whether
there should be a unicameral parliament, is a mere tinkering with the trappings. Changing from a Monarchy to a Republic,
desirable though it undoubtedly is, does not improve our system of
government. Replacing the Privy Council
by the CCJ, though long overdue, does nothing to improve the common man’s
perception of whether he will get better justice. When lawyers and politicians discuss these
questions, and claim they are aiming for “constitutional reform”, the public
lose interest and public apathy reigns.
These issues do not touch on the real question that concerns the average
citizen: the absence of effective
measures to rein-in the kidnapping of the instruments of governance over the
past 50 years.
There are
three elements universally accepted as essential for good government: Integrity, Accountability, and Transparency. We require good governance institutions to be
put in place, protected by constitutional guarantees. Without entrenchment in the Constitution good
governance provisions can be easily avoided by changing the law.
So let us now look
briefly at each of the three preconditions of Integrity, Accountability and Transparency.
Integrity in
public life is an elusive objective at the best of times. US and UK public servants succumb to temptation
just as frequently as ours do. The
difference is that in the UK parliamentarians have gone to jail for fiddling
expense accounts. In the US congressmen
have been indicted and jailed for accepting bribes. You will search our islands’ law reports in
vain for any punishment meted out to public servants known to have left office
hugely enriched by their public service.
The solution
is for our Constitutions to put in place ‘watchdog institutions’ designed to
ensure integrity in our systems of government.
What are some of the most obvious ones?
The Interests Commissioner, or 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 where there is such
a requirement it is usually not enforced.
If the obligatory declaration is not made there is no compulsory
punitive consequence. If a declaration
is filed there is usually no obligation for it to be available for public
inspection. It is kept secret by the
Speaker and is of no use to the public.
An obvious way
to give the provision teeth is for the Constitution to provide that a public
officer is automatically removed from office with a right of appeal, if the
Integrity Commissioner determines that he or she has failed to comply with the requirements
for registration of interests.
The
Constitution should provide a mechanism to ensure that the office of Integrity
Commissioner receives the resources needed to carry out its functions, free of
any political control.
Our Constitutions should require that Codes of Ethics for persons in public life are put in place
and strictly enforced.
Other
Commonwealth countries have excellent handbooks to guide Ministers,
Legislators, and other senior public officers on the correct protocols to be
followed as they enter into office. This
is how you teach ethical conduct. We
could easily adapt these handbooks for our use.
All persons in
public life can benefit from compulsory attendance at seminars and workshops on
the meaning of nepotism, cronyism, and conflicts of interest before taking up
office.
The
Constitution should provide that a serious breach of the Code of Ethics for
Persons in Public Life as determined by the Integrity Commission should result
in immediate removal from office, subject to a right of appeal to the court.
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 opportunity for those who wish to corrupt the process and illegally
enrich themselves. After all, as the
public officer ‘on the take’ explains, “The cow must feed where she tie.”
Procurement
and tendering require the highest standards and procedures. The Integrity
Pacts recommended by Transparency
International would carry the procurement process upwards to an entirely
new level of integrity. The solution is
to enshrine our Tenders Boards in the Constitution and protect them from
outside influence.
An important 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 by Ministers and Permanent Secretaries secretly,
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. The integrity of dealings in public lands and
assets must be guaranteed by having a provision in the Constitution that any proposal
to deal in any significant public asset, say a half acre of land or more, or
the grant of an oil prospecting licence, must first be brought to the
legislature for public debate and approval.
It is
generally accepted that any form of government that does not encourage public
participation ensures the opposite of good governance. Since the introduction of universal suffrage
in the West Indies after the Second World War a type of democracy has
germinated in these islands. It is still
only a slip of a plant, not yet a mature tree.
Bad governance everywhere, flowing from the concentration of power in
the hands of a few, has held back a full flowering of our democracy and
national development.
Self-discipline,
and a strong sense of public service, are as essential for good governance as
is the limiting of the power of the executive to dispense patronage at the
public expense. Self-discipline is in
short supply everywhere. The British bequeathed
to us a “winner takes all” system of appointments that is ripe for abuse. Immediately a new government is appointed,
the first order of business is the wholesale termination of the previous
political appointees. The new
administration then shares out the various directorships among their own principal
supporters. We watch helplessly as they
dismantle the Boards governing Social
Security, Public Utilities,
Public Health, the Tourist Board, Carnival Committee, and even the Poor Law Board. They call
it “enjoying the fruits of office”. We
think it is normal but it isn’t. This
system of replacing one set of incompetent political appointees with another
set makes a mockery of the whole notion of good governance.
Congressman
Sergeant’s much repeated ‘bon mot’
dating back to the 1820s that “He who appoints can disappoint” is neither a
validation nor a justification for the wholesale looting of the organs of
government that we in the Caribbean have to suffer every time there is a change
of administration. The solution is to
ensure in the Constitution that either a Committee of the Legislature, or a
constitutionally protected Appointments Commission, is empowered to vet and
approve, or disapprove, all appointments to and removals from government
Boards, Committees and Commissions. No
person should be appointed to a public board by a Minister without being first
certified as competent to perform the functions of the office
The second
area of checks and balances that promote good governance is that of
accountability. At present the only
device we the public have for ensuring accountability in our government is the
right to remove them from office every 5 years. By itself general elections have proven
ineffective as a means of ensuring good governance. In all our countries the Opposition promises
to bring clean government once elected.
One candidate in recent a foreign election famously promised if elected
to “Clean the Swamp”. He was so
convincing, dishonest, unstable, and immoral though he is, that the people
elected him. We see the consequences
today.
Everywhere in
our islands the Opposition and the Administration laugh at us behind our backs
as they take it in turn to plunder our resources for their private enrichment while
protecting each other from prosecution as each takes his turn at the trough. We have to find more effective alternatives,
watchdog institutions, to ensure that government is truly held accountable for
its actions and omissions.
Without an effective,
properly resourced, 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 the process, and
how unsatisfactory the outcome, frequently is.
There is no accountability for perverse or biased administration in the
absence of a properly resourced Ombudsman.
Complaints by
members of the public of abuse by police officers are usually heard in private
by a Commissioner of Police or his Deputy.
This is not a satisfactory grievance process. It is not transparent and even when honestly
conducted leads to public distrust. Without
an independent and constitutionally protected Police Complaints Authority the
public cannot be faulted for believing that police officers are not accountable
for their acts of misconduct. It must be
no longer satisfactory for complaints against police officers to be handled
internally and in secret as presently occurs.
Today the
citizen’s fundamental rights can only be protected by the individual bringing a
law suit at great personal cost. One
solution as in Ghana and other Commonwealth countries is to place the
protection of the individual’s rights in the hands of a publicly funded
institution whose terms and conditions of service are protected by the
Constitution. This is the Human Rights
Commissioner or the Administrative Justice Board. Such a provision guarantees accountability
when public officers abuse the rights of a member of the public.
In most of our
countries it is nearly impossible to obtain any information on what files government
departments hold on us. There is
frequently no public information on the programmes or activities of any agency
of government. The result is a lack of
accountability in government. Constitutionally
mandated Freedom of Information Acts
are long overdue. There is no surer
mechanism for guaranteeing accountability than an FOI Act and the various Regulations
that make it work. No administration has
ever been in favour of freedom of information.
That alone is a telling point in its favour.
The Public Accounts Committee is perhaps
the most effective mechanism enabling Members of the Legislature to monitor and
oversee 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, deprivation of
resources, and a lack of training, it functions properly in few of our
Territories. We must demand accountability
from the public officers who are entrusted with the collecting and spending of
the public’s money by ensuring there is a properly functioning Public Accounts
Committee.
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. There are watch-dog type provisions that can
be entrenched in the Constitution to improve transparency.
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 proper exercise of their functions, and with no
political input, there will be no public confidence in the independence and
integrity of the public service.
The lack of
transparency in the exercise of the prerogative of mercy is a most
unsatisfactory state of affairs in most of our countries. The Governor or the Prime Minister usually
has the constitutional power to function without any local Mercy Committee to advise him on what
to do about early releases from prison.
They can do it on a whim.
Independent,
politically balanced Boundaries Commissions are essential for guaranteeing
public confidence in our elections systems.
Unlike in Antigua and Barbuda there is no provision in Anguilla for a
Boundaries Commission. The boundaries
have not been revised in over 50 years resulting in gross imbalances. The modern practice of having the electoral
boundaries re-examined periodically to ensure voter balance should be universal
in the Caribbean.
The old,
discredited practice of hiding every decision and action of a government agency
in the dark has proven not conducive to good governance. It is axiomatic that the best medicine
against infection is sunlight and fresh air.
A constitutionally mandated Open
Meetings provision would enable public access to all government meetings
and promote transparency. 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. This would ensure that their decisions are
transparent.
Departments of
government are generally expected to publish Annual Departmental Reports. This requirement for transparency in the
public service was strictly enforced during the earlier colonial period but
seems to have fallen into disuse in many of our states and territories. These reports, even when they are prepared
today, seldom reach the public eye. The
Constitution should insist on it and require them to be published on government
websites for the public to have free access to them.
Too many of
our Premiers and Prime Ministers develop a God-delusion. Worse, if their party continues to be elected
to office beyond two terms, they develop a sense of entitlement and ownership
of the country’s assets. Elected
representatives particularly after they are appointed Ministers sometimes seem
to forget that the public placed confidence in their promise to serve. A power of recall in the Constitution would be
as a constant reminder of their vulnerability if they are seen to betray the
confidence of the public. They would be
encouraged to act with transparent honesty if only out of a sense of
self-preservation.
A fixed date
for general elections is another obvious constitutional precaution against
abuse of the electoral system by a Prime Minister who is always at risk of
becoming more conscious of his power and privilege than of his promise to serve
the public good.
Effective provisions
for the management of public finances need to be entrenched in the
constitution. A sound, modern West
Indian Constitution would include requirements that,
·
The macro-economic
and fiscal policies of Government are formulated for the sustained long-term
prosperity of the people;
·
Public funds
are managed on principles of value for money;
·
Government
must formulate a Fiscal Framework, approved by the legislature, setting limits
to public debt relative to public revenue, and setting levels of reserves;
·
Every 6 months
the Minister of Finance must report to the House of Assembly on the performance
of Government in implementing the Fiscal Framework and on the state of the
public finances and the economy;
·
Where an
Appropriation Act will not return a surplus budget the Minister must lay before
the Assembly a statement explaining the reasons;
·
Where an Act
authorises a person to vary a tax that person must report to the Assembly every
6 months;
·
At least 6
weeks before the new financial year, to give time for public discussion, the
Minister must present to the Assembly the estimates of revenue and expenditure
·
Discussion on
the Budget must include an assessment of performance against debt
sustainability as set out in the Fiscal Framework;
·
All borrowing
must be authorised by an Act and be in accordance with the Fiscal Framework;
·
The Minister
must report to the Assembly every 6 months as to the total indebtedness, and
servicing of loans;
·
Any agreement
by Government to give a loan must be of no effect unless approved by the
Assembly;
·
The Public
Accounts Committee and the Appropriations Committee must have power to summon
witnesses to testify on oath in public hearings;
·
Six-monthly
reports of the Appropriations Committee and the Public Accounts Committee on
their activities relating to the public finances must be promptly published on
the government website;
·
Since a
Commission that has fallen out of favour is likely to be neutralised by the
Administration starving it of funds, the provision of resources for
Institutions of Good Governance must be removed from the control of the
political directorate and placed directly in the hands of the Assembly;
·
The
remuneration of Members of the Assembly must be governed by statute. Any Bill for increasing the allowances of
members of the Assembly must first be recommended by the Integrity Commission,
and published; and finally
·
All reports of
the Chief Auditor must be laid before the Assembly for debate, and promptly
published.
If bad
government now seems entrenched in our islands, we have no one to blame but
ourselves. The press, the media
generally, members of the public, the Bar Association, and the judiciary, all
have to admit our share of responsibility for the lack of standards of
government. We have failed to demand and
to achieve genuine transparency, integrity and accountability by our
governments to our people. Our
politicians may not always be of the highest integrity or morals. But, by our ensuring there are effective
watchdog institutions enshrined in our Constitutions, their greater excesses
can be restrained.
This is a revised edition of the speech I have given several times in recent years on the need for checks and balances.
It was designed to be the Time Kendall Public Lecture, intended to be
delivered at a meeting of the Antigua and Barbuda Bar Association at a public
function on 21 September 2017 at the Commencement of the new Law Term, but
which was cancelled due to the effects of Hurricane Irma, and instead
circulated to all members of the Bar.
