Thursday, September 21, 2017

Time Kendall Speech

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.
·        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.