Constitutional Reform Again

 

Constitutional and electoral reform is in the air again.  I heard the Minister on the radio some days ago promising that we should see the roll-out of Government’s new draft proposals that it intends to urge on the UK Foreign Commonwealth and Development Office (FCDO), within the next month or two.

When Government publishes the promised draft Constitution, I shall study it carefully.  Will it be a version of the constitutional abortion that the AUF Administration in 2019 presented to the FCDO team during the November negotiations?  Or will it accord with the 2017 draft that the Constitutional and Electoral Reform Committee presented to the Government of Anguilla (GOA)?  Or will it be based on the 2020 FCDO draft that they sent GOA shortly after the 2019 consultations but which Government concealed from us until early 2022?  It can be found on the government website.  It is based on our locally produced 2017 draft.  I suggest that whatever Government proposes, it must be consistent with, if not identical to, the FCDO draft.  I wonder why Governments like keeping us in the dark about these matters for so long!

I don’t blame you for not remembering what the previous Administration did in 2019 to ruin our 2017 proposals for constitutional reform.  So much time and so many traumatic events have occurred since them, that the memory is hidden under psychological scar tissue.  So, I’ll briefly remind you of the assault by the AUF administration on the original reform proposals.  Those 2017 proposals (set out in a draft Constitution, Elections Act, and Electoral Boundaries Commission Act, emerged from extensive public discussions in person, on several radio stations, and in widely published newspaper articles and papers, between 2000 and 2017.  The AUF administration presented to the FCDO in 2019 their changes to the 2017 proposals with no real attempt to explain their changes to us, far less to secure our agreement with them.  These changes gutted the Committee’s 2017 reforms.

Electoral reform was part of the mandate of the 2000 David Carty Committee, the 2006 Commission, and the 2017 Committee.  The resulting draft new Elections Act of 2017 was contained in the 2017 Report.  The AUF Administration succeeded in 2019 in persuading the FCDO, in effect, to help them sabotage the most vital electoral reform proposals.

The first insult to the 2017 electoral reforms was to remove the provision for regulating campaign financing.  The people wanted to bring an end to the old vote-buying system.  Each party was to prepare and publish a budget showing where its campaign financing is coming from and how it will be spent.  They will go to jail if they are found to have lied.

In some countries, campaign financing legislation prohibits a political party from soliciting funds from the public.  Campaign financing laws limit each party’s spending only to the sum of money provided by government to each party.  That way, all parties are financially on the same footing.  You go to jail if you are found to have cheated.  The AUF’s draft Constitution completely omitted any mention of campaign financing.

Another 2017 provision that was left out without explanation was for the regular revision of the Voters List.  At present, there is continuous registration with no revision.  Once you get on the List, you can practically never be removed.  If you emigrate and remain away from Anguilla for forty years, you remain on the List.  The List is never cleaned up.  The Committee recommended it be revised every ten years after the usual decennial Census exercise.  The people demanded it.  They left it out.

Yet another provision that was omitted was to reform the Assembly by having thirteen elected seats instead of seven, to abolish the nominated members, and to remove the votes of the two ex-officio members.  They merely got rid of the nominated members.  The voters were supposed to be more fairly distributed among the constituencies as settled on by the Electoral Boundaries Commission, with nine more or less equal districts and four at-large seats.  In 2019, the AUF and the FCDO changed this without warning or discussion with us.  They imposed a rushed 2019 Amendment Constitution and an Elections Act that kept the same old unfairly populated seven constituencies, merely adding the four at large seats.  They omitted to abolish the position of Parliamentary Secretary, or to remove the voting power of the ex officio members, or to revise the boundaries.  They said it was too urgent to discuss.

This abortion of electoral reform missed the entire point of the exercise.  If it was designed to keep the incumbent party in office, it failed.  They lost the later 2020 elections.

Voters knew that the aim of the popular 2017 reform proposal was to ensure that Government would have six Ministers from the ranks of thirteen elected members of the Assembly.  With the proposed thirteen voting members distributed between six ministers, Government backbenchers, and the opposition, the six Ministers would never outnumber backbenchers plus the opposition.

Under the previous system, with four Ministers, a Parliamentary Secretary, and two ex officio members, (seven out of nine) ExCo dominated the Assembly.  The opposition hardly had a say in the deliberations.  The 2019 change to five Ministers, a Parliamentary Secretary, and two voting ex officio members (eight out of thirteen) did not alter the balance of control in the Assembly.  It was no reform at all.

Constitutional reform was the other part of the 2017 proposals to replace the 1982 Constitution.  What the AUF did in 2019 to amend the 1982 Constitution, just days before the general elections, was to cut the heart out of them.  And this without any explanation, save to assure us that the amendments were too “urgent” for further consultation.

What the FCDO did in 2019 in accepting the AUF’s betrayal of the 2017 constitutional and electoral reform proposals was to shore up ExCo’s domination of the Assembly.  With now five Ministers, two ex officio members, and a retained Parliamentary Secretary, ExCo controlled more than half of the thirteen voting members of the Assembly. 

An obvious omission made in the AUF’s 2019 Amendment Constitution was the Integrity Commission.  This watchdog institution was the most vital of the proposals for ensuring integrity, transparency, and accountability in Government going forward.  It may be obvious to us why the AUF omitted it without explanation, but we must insist it be put back in.  The FCDO’s draft 2020 Constitution now before us for discussion does so.

The 2017 public finance constitutional reforms were strongly resisted by the previous Administration.  In 2019, they circulated a paper claiming that these provisions were unnecessary as they were already present in existing laws.  In fact, they sprang from a draft Anguilla Public Finance 2015 Order in Council circulated by the FCO in that year.  This essentially proposed that Anguilla’s management of her public finances be turned over to a UK appointed official.  He would be empowered to cancel all ExCo decisions and repeal laws passed by the Assembly if he did not approve of them.  This caused an almighty stir in the community.  The FCDO backed off.

By 2015, because the Government of Anguilla had for so many decades been living beyond its means, its finances were in a disastrous state.  There were various statutes and Memoranda of Understanding with the FCDO that were designed to ensure that government spending was conducted in a regulated manner.  We never followed any of these statutes or agreements.  The FCDO must have been at its wits’ end.  That is why they wanted to impose on us by a 2015 Order in Council the rules we were supposed to be following.  To ensure the rules were followed, the control of our finances would be entirely placed in the hands of a UK administrator, superior even to the Governor.

What the 2017 Committee proposed was that we introduce the most important contents of the 2015 draft Order in Council into our Constitution.  We would, of course, omit the unacceptable provision that a UK bureaucrat could reverse decisions of our Cabinet and laws passed by our Assembly.

The idea behind our 2017 proposal was that if we imposed these financial management rules on ourselves through our Constitution, there would be no need for the UK to take our finances away from us.

Further, by our taking the financial management rules out of the previous long-ignored statutes and rules, and placing them in our Constitution, we would give the rules increased force.  Breach of them would be not only against a law but be unconstitutional.

It is essential that whatever our new Government proposes to the FCDO, it must be consistent with, if not identical to, the substance of the 2020 FCDO draft Constitution.  This draft came out of the negotiations conducted with the AUF’s negotiating team in November 2019.  Through this 2020 draft, the FCDO has redeemed itself from its earlier betrayal of us in 2019.  It accepts nearly every one of our 2017 proposals.  Only a few provisions remain to be resolved.  These are clearly marked in the FCDO draft and should be the only issues remaining for discussion.  None of them is particularly difficult.  Stay tuned.

Mission Accomplished?

Let me say at the outset that I have great respect for the Hon Cora Richardson-Hodge as a person and a professional.  In my interactions with her I have always found her to be an honourable and decent person.

I was listening to Radio Anguilla’s morning news two Fridays ago when I heard her making a speech.  She claimed as one of her accomplishments during her term as Minister of Home Affairs that she brought us constitutional and electoral reform.  That claim is so upsetting to me that I am forced to put pen to paper.

Anguilla has not had reform.  We have had betrayal.  Betrayal of the most hurtful form.  As I reflected on her cynical boast, I became more and more distressed.

The constitutional and electoral reforms we want are set out in the 2006 Report on Constitutional and Electoral Reform (“the 2006 Report”) and the subsequent 2017 Report to Government (“the 2017 Report”).  [The links are live if you have the electronic version of this paper].  We want to see an improvement in accountability, transparency, and integrity in public affairs.  There were two principal public demands, increased democracy, and improved standards of public life.  We got neither.

What we got was the AUF Administration’s boast that they gave our foreign grandchildren Anguillian status, created four new Island-wide seats in the House of Assembly, and the Chief Minister could now call himself Premier.  They hoped these boasts would help them to get them re-elected in 2020.

So far as I am aware, there is no continuing discussion on constitutional and electoral reform for Anguilla.  Neither the local Administration nor the FCO appear to have any interest in any of the real reform proposals that were so laboriously set out in the 2006 and 2017 Reports.

When a Report is presented to Government, there is no expectation that every proposal in it will be accepted without question.  Government is free to select what parts of the Report they will accept.  But we all expected that if they intended to make any alterations to the package of reforms proposed, they would come back to the people and explain what they want to do.  They had an obligation to be transparent about the alterations, and to attempt to get our approval.

I listened from my hotel room in Antigua back in September 2019 to the Minister and her assistants explaining in the Teachers’ Resource Centre the provisions of the draft new amendment to the Constitution and the draft new Elections Act.  The public meeting occurred on the very day the draft appeared for the first time on the government website.  No one had a chance to read it.  In case you are interested, I discuss the events here:  Constitution - Government Proposals.

In this first and in the few subsequent town hall meetings, the government representatives made no effort to point out to the unaware members of the public what was being omitted.  They offered no explanation at any time as to why the main reform proposals were not being carried forward.  They pretended that what they were proposing was what the Reform Committees had recommended.  That lie so often repeated was a hurtful part of the betrayal.

The British FCO joined with the Administration in enabling this betrayal.  That was particularly painful.  The FCO team visited Anguilla for discussions in November 2019.  I was a reluctant member of the Anguilla team that negotiated with the FCO.  They assured us that the remainder of the proposed reforms which we had agreed on would be in a draft new Constitution.  They promised to send us a draft in December 2019.  When December passed, I asked them directly.  They offered no explanation for the delay.  I assume the Administration has pleaded the Covid-19 excuse.  I fail to see any relevance of Covid-19 to legislative reform.  The FCO seems to be playing along with the delay.  More betrayal.

It is not just the Administration’s failure to implement any meaningful kind of constitutional and electoral reform that hurts us.  They have failed Anguilla in so many other ways.  The Minister in the same speech boasted that she had brought us labour reform.  She referred to the new Labour (Relations) Act of 2019.  She warned the opposition parties.  If they ever gained power, they must not touch this reform she was so proud of.

Listening to her speech, I felt myself getting more irritated.  This new labour law brought no reform.  There is no minimum wage regulation despite the promises.  Labour protections have been weakened.  This law is a betrayal of Anguillian workers.

There were a few failed start-up trades unions, but there is no real one in Anguilla to stand up for workers’ rights in the private sector.  There is only the Labour Commissioner and the Minister of Labour.  What these two offices did over the past twenty years was to remove all the workers’ protections that Ronald Webster introduced in his last term in office.  I previously explained how Ministers and Labour Commissioners illegally permitted workers to be treated as gig workers in Ronald and Labour, published on my blog in December 2019.

Workers at some of the major hotels began, at first illegally, to be classified in their contracts as gig workers.  A gig worker is an independent contractor, not an employee.  None of the original workers’ protection applies to gig workers.  Employees, but not independent contractors, are entitled to sick pay when they become ill.  Compulsory workman’s insurance does not apply.  Holiday with pay does not apply.  Social security contributions from the employer are not technically payable, though since the new Act I have heard that Government has twisted the arms of employers to force them to make the contributions voluntarily.

The original Fair Labour Standards Act and Labour Department Act became disembowelled.  Ministers and Labour Commissioners allowed employers to terminate their workers each year.  The workers would then be taken on the following year and put on a new one-year contract as an independent contractor.  Earlier administrations started the process.  The Minister and this present Administration finished off the job.  The new law now authorises employers to classify workers as independent contractors.  More betrayal.

The Minister oversees immigration.  Our immigration and work permit laws are supposedly intended to protect Anguillians from outside forces.  But our laws have not protected us for decades now.  Various Ministers of Immigration and Home Affairs have gutted the immigration laws of Anguilla.  In this endeavour the Ministers were ably assisted by various Labour Commissioners.

Under various Administrations, foreign-owned stores have spread all over Anguilla.  They have in time displaced our uncompetitive little local retail groceries, dry goods, and hardware stores.  Our immigration laws were passed to protect us and our vulnerable little businesses.  The law failed to do so in this case.

The foreign-owned hotels are in a different class.  They represent hundreds of millions of dollars of foreign direct investment which has given jobs and advancement to Anguillians.  Foreign-owned restaurants that raise the standard of cuisine are part of the attraction of Anguilla to tourists.

By contrast, dry-goods stores and groceries add nothing to our economy or culture.  But, because they are slightly cheaper, unpatriotic Anguillians flood into them, abandoning the slightly more expensive local ones.  Some of the older local groceries, dry goods stores, haberdasheries, and hardware stores are nearly empty of customers.  It will not be long before they go bankrupt and close.  This Administration has delivered the coup de grace to the local retail business.

And, now, just before elections, seems to come the final betrayal.  In 2018 the British Government gave Anguilla £60 million, or EC$300 million, in reconstruction aid.  The money was intended to put Anguillians to work rebuilding the schools, port facilities, and other public buildings devastated by Hurricane Irma towards the end of 2017.

Our men could have done with the work in 2018 and in 2019.  They had bills to pay and families to feed.  Did the children have to be put through the continuing discomfort of attending damaged school buildings in morning and afternoon shifts throughout 2018 and 2019 and going into the future?  We saw the effect of the discomfort in the lowered grades achieved by our students over the last two years.  Reconstruction should have commenced immediately after the plans were approved.

It would be a shame if the delay was so that the Administration can boast, “See, we have you at work now.  If you want to see more work like this, you must vote for us.  This is no time to switch horses.”  If this was the reason for the delay, Anguillians are quite capable of seeing through the smoke screen.

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!

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[1]              http://theanguillian.com/2015/02/anguilla-house-of-assembly-dissolved-general-election-date-in-due-course/

[2]              There is no copy of the Act presently online.  However, the Bill that was passed into law can be found at: http://www.gov.ai/documents/electoraloffice/Bill%20for%20Elections%20Act%202019%20Final%20for%20Ministry%20July%2012%202019.pdf

[3]              http://theanguillian.com/2019/08/we-have-fixed-date-elections-the-auf-lies-again-pams-update-16th-august-2019

Apologies to Lord Ahmad

Government published its draft new Constitution on its website on 24 September.  It is a perverse and distorted version of the original recommendation by the Constitutional and Electoral Reform Committee.

At the time of Government’s publication, they announced that there would be public consultations at the Teachers’ Resource Centre on 30 September and 1 and 10 October.  All members of the public were invited to attend.  They gave us just 2 weeks to register our objections and comments.  Then, it appeared, they intended to send it off to London with the good news that we all agreed to it, so could it please be now signed into law by the Privy Council.  There was no suggestion that the FCO was interested in speaking to the Opposition, far less the people, before bringing the new Constitution into effect.

A breath of fresh air, a point of light in the darkest tunnel of botched constitutional reform, has now appeared on the horizon.  It is found in a speech of the Chief Minister (by now dubbed the Premier) on 30 September reported in the 4 October 2019 issue of “The Anguillian” newspaper at page 2:

Premier Banks disclosed that a number of technical officials from the Foreign and Commonwealth Office would be coming to Anguilla, in the middle of November, to participate in another round of public consultations.  He said constitutions were very complicated documents with far-reaching implications, and certain elements of the constitution must be in sync with the laws on our books.

This is the first indication we have that the British were not entirely hoodwinked by Government into passing Government’s draft new Constitution.  They would be coming to see for themselves what our attitude is to Government’s proposals for constitutional and electoral reform.

Three things need to be noted from the above announcement by Premier Banks.

1.   He says that the British technical officers will be coming to participate in another round of public consultations.  He must mean that the FCO’s lawyers are coming to Anguilla.  He seems to be suggesting they will sit in on the existing two-week period for “public consultations.”  That is hardly likely to be correct.

2.   When the FCO visits an Overseas Territory to discuss constitutional reform, they constitute what in Anguilla’s case will be called something like “The Anguilla Constitutional Conference.”  They expect their negotiating team to meet with a local negotiating team.  They invariably demand that the local team consist of representatives of government and the Opposition.

The two teams meet across the table from each other to negotiate.  The FCO do not consider only the representations of Government’s team.  They expect the local team to be fully briefed on local expectations for reform.  The local team must be able to put forward the public’s expectations.  The FCO team will have their own demands. 

Their proposals for reform may include new matters that the local team has never considered before.  They may, for example, be quite strong on rights issues that will be new to the locals.  These will include freedom from discrimination in marriage, and the right to a clean environment, and to education.  Yes, they will want gays and lesbians to have the right to marry.  This is because that right is now recognised everywhere as the fundamental right not to be discriminated against on the basis of one’s sexuality.

3.   The Premier seems to have been misled into believing that the new Constitution will need to be “in sync” with the 2019 Amendment Order.  This is a mistake.  The coming new Constitution will set aside the 1982 Constitution along with all amending Orders in Council.  A similar erroneous suggestion was made by the Hon Minister of Home Affairs in the last meeting of the House of Assembly.

This error is our clue that the draft new Constitution published by Government on its website was not prepared by qualified legal draftspersons.  These would know that there is no need for a new Act or Constitution to be “in sync” with a previous one.  This is especially so when we are speaking about a previous amendment.  These would know that a well-drafted new instrument sweeps aside all previous instruments.  The lawmaker is not constrained by any earlier legal provision, particularly an amendment to an instrument that is being replaced.

All the evidence indicates that the new Elections Act, the Anguillian Status Commission Act, and the new Constitution on Government’s website were drafted by persons who are not experts in drafting legislation.  We can hope and demand that the FCO will insist that they all be replaced with properly drafted instruments.

It appears that both Government and the Opposition underestimated Lord Ahmad and the Foreign and Commonwealth Office.  It seems the UK officials recognise the need to consult with a representative body of Anguillians, not just a partisan incumbent Government, before making fundamental constitutional changes.  This is what the FCO normally does. 

Over the past months I have repeatedly accused Lord Ahmad of betraying Anguillians by ignoring the expected consultative procedure and going along with Government’s unilateral proposals.  This accusation may have been true about the 2019 Amendment Order.  It appears the FCO will do the right thing for the remainder of the reforms.  For doubting Lord Ahmad’s integrity in insisting on this procedure, I personally owe him an apology.

Meanwhile, a great deal of damage has been done by the 2019 Amendment Order and the Elections Act 2019.  But, if the FCO is now coming to Anguilla to meet with the Opposition as well as the Government to finalise a new Constitution, it is not too late to correct the errors.

Any new Constitution will set aside both the old Constitution and all amending Orders in Council.  The opportunity to restore the integrity of the 2017 Report’s draft Constitution and its attendant draft Acts is there. 

It is much to be hoped that the FCO will also insist that the missing Acts necessary for giving effect to the watchdog institutions be prepared and put in place immediately after the new Constitution comes into effect.  These include (a) an Integrity Commission Act, (b) a Freedom of Information Act; (c) a Public Service Commission Act; (d) an Appointments Commission Act; (e) a Complaints Commissioner Act (or Ombudsman Act); (f) an Act for the Remuneration of the Speaker and the Members of the House of Assembly; and, (g) an Anguillian Status Commission Act.

The Constitution states that these provisions in the Constitution depend for their efficacy on the related Acts being passed into law.  Accompanying these Acts would be the Regulations and other statutory instruments necessary to make the Acts work.  Without them, no substantive reform will have been achieved.

Dr Ellis Webster, as leader of the biggest opposition political party, and his team including his legal advisers, should be invited.  Mr Sutcliffe Hodge, as leader of the third party, and his advisers must be there.  Mrs Pam Webster, as the Leader of the Official Opposition in the House of Assembly, and her advisers must be included.  Without each of them being present at the table, no eventual solution will be acceptable.

If the FCO is wise, their team will insist that any proposed new Anguilla Constitution that is negotiated must be submitted to the people for their acceptance before the draft is signed into law.  That is the only sure way to achieve a peaceful acceptance of what up to now has been a highly contentious and acrimonious process.  That acceptance or otherwise can be easily shown in a yes/no referendum.

At-Large Seats

The Great “At-Large Seats” Trick

Anguilla’s population is approximately 13,000.  Demographically, Anguilla is a typical developing country.  A majority of the population consists of school children and babies.  These are not included on a Voters’ List.  The Voters’ List supposedly contains only persons who were resident in one of the electoral districts at the time they were registered.

In the 2015 general elections, there were 10,908 registered voters.  It must be questionable that, with a majority of the inhabitants being children, Anguilla could muster 10,908 voters out of a total population of 13,000.  It is evident that a large number of registered voters must reside outside of Anguilla.  It must be questionable whether they ever qualified to be included on the Voters’ List.

In 2015, some 7,978 persons voted.  These included plane-loads of supporters flown in from overseas the day before the poll.  They voted for 7 representatives from 7 districts.  The AUF won 6 districts with 54.47% of the votes cast, thus forming the government; the AUM won no districts with 38.24% of the votes; and Pam Webster won her seat with 5.92% of the votes, thus becoming the sole member of the opposition in the House of Assembly.

When the Constitutional and Electoral Reform Commission of 2006 (and the succeeding Committee of 2015) was established and began its work, it was soon agreed that Anguilla’s representative arrangements for the House of Assembly were undemocratic.  One of the major tasks set by the Committee in its 2017 Report was to restore Anguilla’s representative system to a reasonably democratic state.  Why is the representative system of Anguilla said to be undemocratic?

First, there are two Nominated Members who sit and vote in the House.  They are nominated by the Governor, who can sometimes be under the undue influence of a persuasive Chief Minister or Premier.  Nominated members are a hold-over from the ancient colonial period when the governor nominated all the members of the House.  They have no place in a modern democratic system.

After the 2015 elections, 2 members of one influential Island Harbour family that generally supports the AUF party were nominated to fill both Nominated Member positions.  After a shaky start, both Nominated Members demonstrated their total and unwavering support for the AUF administration, and their rejection of every opposition initiative in the House. 

Further, in most of the electoral districts in Anguilla, success in general elections depends on a combination of how many family members reside in the district and how many (disqualified) supporters the candidates have infiltrated into the Voters List.  The numbers of voters in each is so small that few are unrelated to one or more of the candidates.  Elections are more a matter of tribal alliance than issue based competition.

Second, the 2 ex-officio members of the House (the Attorney-General and the Deputy Governor) have a theoretical vote, though they seldom exercise it.  They sit in the House as full voting members even though no one elected them to the House.  That is clearly anti-democratic.

Third, there are 7 elected seats in the House, and 4 of them supply Ministers to fill the government.  That meant that Cabinet Ministers formed a majority of the 2015 elected members of the House of Assembly.  The result is that when proposals from Cabinet come to the House for a vote, the House is at best a rubber stamp for the decisions taken by Cabinet.  That arrangement is clearly anti-democratic.

Constitutionally, the House is supposed to be an equal branch of government, not a rubber stamp.  In any event, 4 Ministers of Government cannot effectively handle all the portfolios of a modern government.  There is a long-standing demand for the number of Ministers to be increased from 4 to 6.

Fourth, the people of Anguilla are entitled to more or less equal representation in the House of Assembly.  However, the 10,908 registered voters are unevenly distributed among the 7 districts as follows.  There are 1,696 in District 1;  964 in District 2;  2,005 in District 3;  2,355 in District 4;  1,187 in District 5;  1,718 in District 6;  and 983 in District 7.  This is very uneven representation and is anti-democratic.

Equal representation can be achieved by having the boundaries of the 7 districts periodically adjusted to ensure there are more or less similar numbers of residents in each district.  This is common throughout the Commonwealth Caribbean.  It is achieved by having the House of Assembly from time to time accept the recommendations for new boundaries proposed by an independent Boundaries Commission.  Anguilla has never, since modern government began in 1971, had an independent Boundaries Commission.

It is noticeable that in the 2015 elections, 3 of the 7 districts won by the AUF contained over 6,078 voters, more than half of the 10,908 voters on the List for all 7 districts combined.  Each district elects only one representative, so the voters of those 3 districts can be said to be underrepresented in the House.

Fifth, with only 7 elected seats, there is bound to be a scarcity of talent in the House.  There are not enough voices to raise the level of debate.  Many important issues never get an airing because there are just not enough representatives to take hold of the issues.  There is a need to increase the number of elected representatives, if only to raise the quality of debate in the House.

The result of these weaknesses in Anguilla’s House of Assembly is what has been called “Anguilla’s democracy deficit”.  There is no real democracy in Anguillia’s system of government.  Whoever can trick the system wins.

It was to solve these democracy deficit issues that the 2017 Report of the Constitutional and Electoral Reform Commission recommended (1) nominated members be abolished; (2) the ex-officio members be deprived of a right to vote; (3) the number of Ministers be increased from 4 to 6 and never exceed 50% of the membership of the House; (4) the boundaries of the districts be adjusted periodically so that each district contains approximately the same number of voters as the other districts; (5) the number of representatives be increased to 13.  That last was to be achieved by increasing the number of districts from 7 to 9 and introducing 4 “at-large’ seats which would be voted for by the entire voting list, so that the number of elected representatives would be increased from 7 to 13.  This is a total package for reform.  It is not amenable to being split up.  You cannot introduce one of the reforms, and omit the others, and at the same time achieve progress.

And then somebody did the arithmetic.  If the party that controlled the 2 Valley Division districts could persuade the British to introduce the 4 at-large members into the Constitution, while keeping the existing fraudulent Voters List, and retaining the original 7 districts, with no revision of the boundaries, then the voters from these 2 districts (plus any support from others) would be enough to win the 4 at-large seats in the 2020 elections.  The Opposition might win the vast majority of the districts, but they would never win a majority of seats in the House.  The party controlling the 2 Valley districts would be guaranteed 6 representatives in the House, and control of government after 2020.

In late 2018, without any discussion with the Anguillian public, an appropriate representation was secretly made to Lord Tariq Ahmad, Minister for the Overseas Territories in London.  He agreed to the proposal.  Once this proposal was revealed (by publication of the draft Order in Council), the united Opposition in Anguilla protested about the malign effect of allowing the administration to cherry-pick the Committee’s recommendations for political advantage.  Lord Ahmad, however, had already succumbed to pressure from the local administration.  The result is the Anguilla Constitution (Amendment) Order 2019 which was signed into law in February.

This Order in Council allows the Elections Act to be amended to introduce the 4 at-large seats without any of the other related reforms.  This instrument represents Lord Ahmad’s betrayal of the constitutional and electoral reform project in Anguilla.  It is a betrayal by the British Government of the promise of good governance for the people of Anguilla.  The Elections Bill 2019 published on the government website is their attempt to carry out this trickery.

The Elections Bill 2019 is an election gimmick.  If the British government was serious about good governance in Anguilla (which all the evidence indicates we should doubt) it would never be signed into law.

Voters' List

The Voters’ List Will Never Be Cleaned Up – By Don Mitchell

Dear Mr Editor,

I was going to send you the letter below for anonymous publication.  It is written satirically.  It is my effort to understand and to explain through satire why the administration is attempting to pass the new Elections Bill, while secretly and surreptitiously omitting from it the Voters’ List and campaign financing reforms recommended by the CERC.  

It is written from the point of view of an imaginary, long-serving Member of the Anguilla House of Representatives.  I imagine him giving his reasons for not accepting the reforms of cleaning up the Voters’ List and regulating campaign spending, and for keeping quiet about leaving out these reforms from the Bill for a new Elections Act published on the government website for discussion.

But, I have been persuaded that the letter by itself would be counter-productive.  It is said that many Anguillians don’t do figures of speech.  They read irony and sarcasm literally.  Metaphors and similes, it seems, cause them confusion.  Double entendre, even in calypso, is lost on literal-minded people.  That is what happens to the brains of people who believe the fantastical fables of the Old Testament to be literal truth.  It seems that sadly we have a lot of those in Anguilla.

So, to avoid misunderstanding, I am happy to let your readers know that I have written the anonymous letter below.

Yours sincerely,

Don Mitchell

--------------------------------------------

“Dear Editor,

Don Mitchell is an idiot.  Whatever made him think we would allow the List to be cleaned up?  Does he have any idea how many years, decades, I have struggled to get family and friends who live in the USA onto the List, so they can come to Anguilla at election time to vote for me?  I have children born in the USA.  They have never resided in Anguilla.  But they come to vote for me whenever I buy them a ticket.  He wants to tell me my own children are not qualified to vote for me?  I will never agree to that.

It gets worse.  He says that under the Constitution my children were never qualified to be on the List in the first place, as they never resided here.  And, now he wants to make it even more difficult for me to get them on the List by saying they have to be “ordinarily resident”?  That means they have to live and work in Anguilla before they can get on the List.  How does he expect me to win the next election, if all my family and friends who live overseas are taken off the List?  Is he crazy?

Does he have any idea how much money I have invested over the past decades to get these supporters on the List?  Does he know how I had to beg and solicit funds to be able to pay to win my seat?  I paid for my supporters to fly in to Anguilla and fill out the form to be put on the List in the first place.  Every election I pay for them to fly in to Anguilla to vote for me.  And, now I must waste all that money and effort I have invested, and have to start all over again?  Never happen!

Ten years ago we managed to get the old system of periodic enumeration replaced by the present system of continuous registration.  Under the old system every five years the old Voters’ List was abandoned, and the new one was prepared from scratch.  We and the Opposition both agreed the old system was cumbersome and expensive.  We knew that once we could trick the electoral office into registering all our disqualified supporters, and we abolished the enumeration process, they could never be removed from the List until they died.  Even after they died, we could keep them on for years more.  Now he wants us to abandon all that investment and face the uncertainty of a cleaned up List?  No way!

We incumbent politicians love our Voters’ List.  Leave our Voters’ List alone!

And, no, we are not going to the public to explain anything to them.  Anguillians don’t want to know.  They are mushrooms; they like being kept in the dark.

Yours Sincerely,”

[Name of the author withheld at his request]