Don Mitchell's Published Papers: Fixed Date Elections

Wednesday, December 04, 2019

Fixed Date Elections

Anguilla’s general elections are constitutionally due in the first part of next year, 2020. That will be five years since the last general elections held on Wednesday 22 April 2015 and the present Administration taking office. So, what will be the date for the next elections in 2020? That is the question people are asking me.

The exact date is for the Premier (formerly Chief Minister) to select. There are some constitutional rules which apply to set the outside date. He is always free to tell the Governor to call the elections at an earlier date if he sees some advantage for his party.

Sections 63 and 64 of the 1982 Constitution of Anguilla tell us what the latest possible date is. They read as follows, where relevant:

Prorogation and dissolution

63. (1) . . .

(2) The Governor, acting after consultation with the Chief Minister, may at any time, by Proclamation published in the Official Gazette, dissolve the Assembly.

(3) The Governor shall dissolve the Assembly at the expiration of five years from the date when the Assembly first meets after any general election unless it has been sooner dissolved.

General elections

64. There shall be a general election at such time within two months after every dissolution of the Assembly as the Governor shall by Proclamation appoint.

The previous Assembly was dissolved on 4 January 2010. Elections were held that year on 15 February. Five years later, the Assembly was dissolved again on 26 February 2015.[1] Elections were held on 22 April 2015. The Assembly held its first sitting on 11 May 2015.

So, under the sections 63 and 64 rules, the Governor must dissolve the Assembly, at the latest, at the expiration of five years from the date when the Assembly first met, ie, by 10 May 2020. The general elections must be held at the latest within two months, ie, by 9 July 2020. These sections of the 1982 Constitution have never been altered or amended. They remain good law.

On Tuesday 23 July, the Anguilla House of Assembly passed into law a new Elections Act.[2] This gave a fixed date for the next general elections. The section in question is section 34. This reads where relevant,

Fixed date for general elections

34. (1) Polling day for the next general election after the passing of this Act will be the first Monday after the 5th anniversary of the last general election.

(2) . . .

(3) The Governor, acting on the advice of the Premier, may by Proclamation provide that the polling day for a general election in a specified calendar year is to be earlier or later than the day determined under subsections (1) or (2), but not more than 2 months earlier or 2 months later.

The first Monday after the fifth anniversary of the last general election (22 April 2015) would be 27 April 2020. If this were good law, that would mean that the latest date for the next general elections to the Anguilla House of Assembly would be on Monday 27 April, 2020 (subject to the discretion given to the Premier to pick a date up to two months earlier or two months later, ie by 26 June at the latest). But, this new section 34 of the new Elections Act conflicts with sections 63 and 64 of the 1982 Anguilla Constitution which are set out above.

Hon Pam Webster has repeatedly pointed this out both in the House of Assembly when the Bill for the new Elections Act was being debated, and in articles written in the Anguillian Newspaper. See for example, her article “We have Fixed Date Elections – The AUF Lies Again – Pam’s Update – 16 August 2019” in The Anguillian Newspaper for 19 August 2019.[3]

The reason for the error is clear. The new draft Constitution is what will authorise elections to be held on a fixed date. That provision has not yet been passed into law. If the new Constitution had been adopted, the old Constitution would have been replaced in its entirety and section 34 would have been valid.

An Act of the Anguilla House of Assembly cannot alter or amend the Constitution. Section 34 of the Act is ultra vires the Constitution. It is null and void. At some point, the Administration will have to go back to the House of Assembly, with egg spilling from its face, to repeal section 34. What an embarrassment!