Modern Slavery in Anguilla?

 

This is an essay on the development of a form of modern slavery in Anguilla.  Up to the date of publication, the Labour Department has not responded to an invitation to comment.  That is not to suggest they have any obligation to comment, nor that they are in any way complicit in the evils described in the following pages.

We must not turn our heads away from the benefits of pouring sunlight on our festering wounds.  Blocking sunlight prevents one of the surest cures of infection and encourages further festering.

In Antigua and Barbuda, for decades, a minority of politicians, police, and immigration officers controlled the illegal drugs, brothel-keeping, and gambling industries of that country.  Generations of police and immigration officers have retired on pensions having spent their careers doing little more than ferrying trafficked foreign girls through the airport, and using official vehicles to transport contraband and brown paper bags full of money from place to place.  They shut down and destroyed human rights activist and journalist Tim Hector and his newspaper, The Outlet, which specialized in revealing public corruption in Antigua and Barbuda.

In Montserrat, for decades, a minority of locals and corrupt British officers conspired together to defraud the UK's Department for International Development (DfID) and the Montserrat people.  Millions of dollars, intended for the aid of the people of this volcano-ravaged island, were diverted into the pockets of corrupt foreign and local actors, until in 2020 the entire Department had to be closed.  The corruption was covered up and its extent has never been fully revealed.  Montserrat can claim the unique achievement of having been responsible for the shutting down of one of the most influential British Government Departments ever to have existed. 

We will not touch on the British Virgin Islands.  The state of public corruption in that Overseas Territory is too raw and embarrassing even for mentioning.

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Anguilla’s work permit law and practice appear to be fostering a new form of oppression.  Some Anguillian employers appear to have created new avenues for exploiting the labour of their foreign workers.  They do this by abusing the work permit regulations.  They do so with impunity. 

It is the same in every country.  Anguillians generally won’t do the lower paid jobs in their own community.  The demand for manual labourers, housekeepers, gardeners, security guards, nurses, and carers for the elderly, far outstrips the domestic supply.  Would-be employers must turn overseas to fill these jobs.  Work permits are required.  Their issue is discretionary.  The discretions have multiplied.  Discretions are open to abuse.

Under the old, now repealed Control of Employment Act, and the Work Permit Regulations made under it, the relationship between the foreign worker and the employer at first appeared clear cut.  That Act has now been repealed and replaced by the new 2018 Labour (Relations) Act.  The original Regulations remain unchanged.

Some employers have not been slow to exploit the opportunities for abuse offered by the law and the system.  Some of our more unscrupulous Anguillian employers exploit their workers in the murky area of work permits.

The provision that the foreign worker is obliged to stay out of the island until the permit is granted or renewed was originally stringently observed.  The rule was frequently ignored.

Sometimes an employer illegally encouraged a foreign worker to enter the island pretending to be a visitor.  The employer then illegally put him to work while the application for a work permit was processed.  The worker did not dare complain if he was treated unfairly.

Sometimes the employer illegally delayed the application for several months.  Meanwhile he exploited the labour of the foreign worker who was too afraid of the consequences if he complained.

A work permit is not transferrable.  Where a worker is being exploited, he may understandably want to switch employers.  The law requires him to first leave the island until his new work permit is granted. 

The practice has now arisen that the permission of the first employer and the cooperation of the Labour Department are required to switch employers.  There are no apparent guidelines or standards establishing the circumstances when a foreign employee may be allowed to remain while the new permit is being processed. 

This need for the consent of the original employer to leave his employment provides more opportunities for exploitation by unscrupulous employers.  The rule about first obtaining the consent of the original employer is sometimes overlooked.  The rule about having to leave the island for a period is never enforced, out of an alleged feeling of humanity.

Where a particular employer is not in favour with the authorities, the system can be made to work against him.  The foreign employee then suffers discrimination due to no fault of his own.  Unconstrained administrative discretion is the enemy of policy and principle.

Before a permit can be issued by the Minister, the Labour Department is required to certify that there is no Anguillian willing to do the job.  Some Commissioners were of the highest integrity, some were not.

The law requires that the employer show that the post was been advertised before he can apply for a work permit.  There is a discretion to ignore the failure to advertise the position.  Innumerable and ingenious reasons are now offered to the Labour Department for the omission.

The employer was originally responsible for the cost of the work permit.  He could not deduct those costs from the employee’s wages.  This rule is now sometimes ignored.  The law is vague on who must pay.  I am told that an informal “rule” has now arisen that the employer can deduct one half of the cost of the permit from wages.  The worker is in too vulnerable a position to make a complaint to the Commissioner.

Originally, only in rare cases was a foreign worker permitted to bring in a spouse or other family member.  Certainly, children were rarely allowed as they were an unnecessary burden on the social services.  This has changed now.  It is said the old system was inhumane.  But the result is that a heavy burden is being placed on our education, welfare, and health systems.

Sexual favours were sometimes asked for and granted if you wanted to keep your job or to get your work permit - or your husband’s or your brother’s work permit.  The feudal droit du seigneur seems to have returned to Anguilla.  Complaints to the Minister or the Labour Department fall on deaf ears.

Previously, once a work permit expired, the employee was obliged immediately to leave the island.  If the employer showed that the job was advertised, and there were still no Anguillians qualified and willing to fill the position, the work permit might be renewed, and the worker would be allowed back onto the island.  The system was inconvenient, but it reminded the worker that he was here temporarily to work.  It was not intended to be a back door to permit economic immigration.

The employer was and is not permitted to hold the employee hostage by detaining the employee’s passport during the term of the employment.  This rule is now occasionally breached by the more abusive employers.  Passports are now occasionally held by some employers and, contrary to law, not returned to the holder after the permit has been issued.  The worker is kept in a form of servitude.

The applicant for a work permit is supposed to deposit a sum of money to cover the return fare at the end of the employment.  This requirement is now discretionary, with all the evils this entails.  I have known cases where unscrupulous employers bring in foreign workers on a promise that they will be covered by a work permit which is then never applied for.  As a result, no security deposit is asked for or paid.  The illegality works relatively smoothly so long as relations are happy.  It is only when the foreign worker, often illiterate and speaking only Spanish, falls out with the employer and is fired that problems arise.  Having no money, he must then depend on a kindly local person to give him housing and food until some charity can come up with the air fare to get him back home.  He can be marooned in Anguilla for months while barred from working.  The fraudulent employer is never prosecuted so far as I know.

Many of these unfortunate foreign workers whose work permits expire without renewal, stay on illegally in Anguilla.  Due to their illegal status, they are deprived of most of the social, medical, and educational services available to those legally on the island.  They are too terrified of being penalised by the authorities to complain, or to take advantage of the amnesties government offers from time to time.

The Minister has a discretion whether to allow the work permit or not.  There were and are no firm rules or guidelines published governing how the Minister must decide whether to grant the permit.  Sometimes it was granted, and sometimes it was not.  Some ministers were honourable, some were not.  There is no point complaining, especially if you are not an Anguillian.  The system is stacked against you.

Where there is an unregulated discretion granted to a government official, abuse is often not far behind.  As there were and are no published rules or guidelines for the granting of a work permit, suspicions soon grew that the system was tainted.

In Anguilla it sometimes seems that all public standards tend to deteriorate over time.  A social version of the Second Law of Thermodynamics seems to apply.  As every schoolchild knows, this Law says that any closed system will always move away from order towards disorder.  The result is that the entropy of Anguillian society continually increases.

My fear is that if work permit standards are not properly established and published, Anguilla may become another Antigua or Montserrat, governed by tribal systems and rotten to the core.

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.

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.

Beyond Walls

The 37-page paper a copy of which you have before you does not deal with the important issue of political independence for Anguilla.  It is not about the horror of a West Indian people living under the abusive system of colonialism.

I entirely agree with those who say that there is only one road for Anguilla.  There is only one road for any community which finds itself subject to the dictates of foreign, non-elected and unaccountable people of a different culture.  That is, for the people to seize their inalienable right to self-government.  The only justification for colonial rule is racism, which is itself unjustifiable and universally condemned.  The system of colonial rule is itself inherently corrupt.

Let us now see a show of hands from all the Anguilla United Movement supporters in this room who would be happy for the Anguilla United Front to take us into independence.  The answer is …?

Now, hands up from all the Anguilla United Front supporters in this room who would be happy for the AUM to take us into independence.  The answer is …?

Do the results of this little poll mean that there is no one in this room who is interested in achieving political independence from the British Crown?  The answer, I am certain, is No.  The silence my question has received does not mean that.  It just means that we crave freedom itself more than we crave freedom from British colonial rule.

So, what is my paper about?  It is about the failure of the British Government, and in particular that Department called the Foreign and Commonwealth Office, up to the end of the first decade of the 21st century to provide our colonial people with the constitutional framework that would give us a chance to achieve full political independence with some certainty of freedom from local tyranny.  I argue that unless there is a paradigm shift in the attitude and methods of the FCO, the likelihood is that we shall grow increasingly weary of an apparently brutal and arbitrary colonial rule.  History has shown that we shall then demand and be given political independence.  History shows that we shall, shortly after the euphoria of Uhuru has worn off, descend into an even more brutal period of self-imposed, local tyranny.

The paper, a copy of which is before you, is based on my experience.  I am an old-age pensioner now, having been born in St Kitts in 1946.  I lived in Trinidad when it gained political independence in 1961 under the tyrannical rule of Dr Eric Williams.  His administration became so corrupt and oppressive that there was an armed uprising which was put down only after CIA and US State Department infiltration of the rebels.  Eric Williams gave my St Vincent-born father Trinidadian citizenship in gratitude for the role he played in supplying his company’s aeroplanes to follow and observe the rebels from the air so that the forces loyal to Dr Williams could defeat them.

I have lived through a Jamaica dominated in the early 1970s by the charismatic but cruel and confiscatory reign of Michael Manley.  My father died in Jamaica in 1973.  Prime Minister Michael Manley flew in to attend his funeral in his army helicopter, frightening all the children for miles around with the noise it made as it landed in the churchyard.  All my life I have listened from close up to the rhetoric of popularist West Indian politicians, and I have observed with an intense sense of outrage their use and abuse of the power entrusted to them by the people.

I have observed an Antigua and Barbuda dominated in the 1960s, 70s, 80s, and 90s by the oratory of a corrupt and venal Vere Cornwall Bird.  After he died, his country continued to be run by kleptocratic politicians supported by a corrupt police force whose main reason for its existence appears to have been to supply and distribute cocaine throughout the country.  That is, when their soldiers are not running the whorehouses and local gambling dens from which they have made themselves wealthy on for the past 50 years, as Tim Hector exposed so many years ago before they burned down his printing press and shut him up.  There are one or two retired police officers I know of who have spent their entire career doing little else but carry brown paper bags of money from one person to another.

I have been concerned about a St Vincent and the Grenadines dominated by two political parties whose only purpose in life appears to have been to enrich and empower their leaders at the expense of the people.  These political parties’ idea of constitutional and electoral reform is to remove yet more of the freedoms of the people and to hold them back in poverty and ignorance.  My father was born in St Vincent, and I am entitled to citizenship of that unfortunate country.  I have lived and worked in it and speak from personal knowledge.

I have lived through the era that saw the rise and fall of Eric Gairy of Grenada, one of the most venal and corrupt of West Indian political leaders.  He flourished under the very same colonial regime that we are subject to in Anguilla at this time.  His wallet grew fat in stolen wealth, and his reputation slimy from the many young women he debauched.  I say that about Grenada even though my father’s roots were in Grenada, and under the Grenada Constitution I am entitled to apply for, and to hold, a Grenadian passport.

My paper argues for a paradigm shift in colonial governance if we Anguillians are to enjoy a future where our system of government will be strengthened by institutions that offer the people a way to hold our leaders to account.

The term “paradigm shift” was coined by Thomas Kuhn in his influential book The Structure of Scientific Revolution, published in 1962.  It describes a change in the basic assumptions, or paradigms, within the ruling theory of science.  Once a paradigm shift is complete, a scientist can no longer, for example, reject the theory of evolution and revert to the clerical theory of the divine creation of species.  A doctor can no longer reject the germ theory of disease and go back to the medieval theory that it is a “miasma” that causes disease.  In a non-scientific context the term describes a profound change in a fundamental model or perception of events.  That is the sense in which I use it in the paper before you.

The paper argues that the present Westminster model Constitution we in the BOTs have inherited is inadequate to provide the protections necessary for a colonial people on the verge of being sent out into self-government and eventual independence.  In the paper, I contend that the structure of our present colonial Constitution is misshapen and unworkable in providing good governance.  Part of the explanation, I posit, is that our 21st century fundamental rights and freedoms unevenly overlie the skeleton of an 18 th century colonial structure of administration, now reduced to writing.  What we have as a written Constitution is the unwritten British parliamentary model, but with none of the institutions or structures that exist in Britain, whether inside or outside of the legal framework, to ensure that the whole works smoothly and evenly.

To give a few examples, typically Tenders Boards are not established by our colonial Constitutions.  In many territories they are not even governed by legislation.  They are generally ad hoc committees appointed by a Minister or by the Governor.  Public contracts are routinely awarded on the basis of family and friendly relationships.  Statutory Boards and government committees are staffed with unsuitable political supporters on the basis of “the winner takes all” after every general election.  Land Development Planning Committees and Building Boards have their policy-based decisions subject to reversal by politicians.  Immigration Department orders and Work Permit decisions are made by politicians on the basis of unpublished and unknown policies.  In some cases in Anguilla, the local statute specifically permits political interference in the administration of government policy.  The result is that, with a Minister of Government on my side, I can safely ignore every regulation that had originally been put in place presumably for the public good.

I argue that there is no integrity in a system such as we have in Anguilla that permits a personal appeal to a Minister to overrule the decision of a Board or of a public officer carrying out the national policy.  Victimisation and discrimination are the inevitable result.  And, indeed, that is precisely the system of government that most of us labour under, supervised by the Governor and the FCO.  There are innumerable examples, some of which I set out in my paper, of the mechanisms that have been put in place by Commonwealth law-makers to ensure that the system is self-correcting, and that corruption is winkled out and punished.  Corruption will always exist, as it does in British politics to this day, as we have seen in the Parliamentary expenses scandal of last year.  The question is do we continue to shrug our shoulders at it as we do now?  Or, do we do like the British and demand that practical steps be taken to catch it and to nip it in the bud?

We, the citizens of the BOTs, do not accept that our islands are too small for high standards similar to those that are expected in the outside world to survive and work here.  No matter how small our territories are, we are entitled to expect that our governments will be of laws and not of men.  The solution suggested in the paper before you is for the FCO to establish in our Constitutions the necessary checks and balances, to encourage us to pass the necessary enabling laws, and then to assist us in formally educating the public and the leadership in the principles of good governance.  It seems desirable that this constitutional reform occur, and time be given to permit it to show it can work, before we turn over our lives and our freedoms to the unsupervised, sticky fingers of our local political leaders.

In my paper I set out some of the time-proven mechanisms that the FCO needs to give attention to, if they are really serious about “good governance”.  Most of these mechanisms have been introduced into law in Britain itself.  All of them are to be found in one Commonwealth country or the other.  I express in the paper regret that the FCO seems to feel no urgency about introducing them into their remaining BOTs.  They have not done so in Montserrat, nor do they propose to do so for the TCI in the constitutional recommendations published in 2010.  So, why should we expect them to think any differently of us in Anguilla?

I conclude my paper by voicing the fear and concern that if the sleight of hand and trickery that was apparent in the September 2010 process of constitutional reform in Montserrat, and that is threatened for 2011 in the Turks and Caicos Islands, is perpetrated in Anguilla, then there is no hope for us.  We shall be destined to reject colonial rule and to take our independence in due course, burdened with the same defective constitutional and legal mechanisms as our cousins in Trinidad, Jamaica, Barbados, Grenada, St Vincent, St Lucia, Dominica, Antigua and Barbuda, and St Kitts and Nevis did.

Thank God I am too old to experience all over again what that will mean in practice for the freedoms and liberties of another one of our West Indian people.  If what I fear should come to happen, I shall observe it in silent desperation from the side-lines.  I shall take no pleasure in repeating to myself the maxim that, “If we do not know where we are coming from, then most likely we will not know where we are going to.”

An oral presentation made at the University of the West Indies Anguilla Conference held at the National Bank of Anguilla Conference Room on 28 April 2011 on the circulation of a full-length paper with the title, “New Perspectives in Oppression: The British Foreign and Commonwealth Office and the West Indian Colonies in 2011” which proved too lengthy to read.