Electoral System Faced With Pre-Election Day Challenges
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Office of the AG
HIGHLIGHTS
Electoral System Faced With Pre-Election Day Challenges
Disposed of Efficiently by the Office of the Attorney General
Governor General, Sir S. W. Tapley Seaton, acting on the advice of the Hon Prime Minister, Dr. Timothy Harris, dissolved the National Assembly on Tuesday, 12 May 2020 and on Monday, 18 May, His Excellency issued writs addressed to the Returning Officers of the eleven (11) respective constituencies authorizing elections by which members were to be returned to sit in the Parliament in St. Kitts and Nevis.
Nomination Day was set for Wednesday 27 May, and the voting for elections, Election Day, was slated for Friday 5 June 2020.
Between Nomination Day and Election Day, the Attorney General’s Chambers was faced with three (3) important cases filed in the High Court which challenged the process of the elections. It was a credit to the Chambers that at very short notice, each challenge was met resolutely and discharged so as to protect the integrity of the election process and contributed significantly to the assessment by local and regional election observers that the General Elections in St. Kitts and Nevis were “free and fair, and free from fear’.
Claim No SKBHCV2020/0090 –
Marcella Liburd et al v Attorney General of St. Kitts and Nevis and ZIZ Broadcasting Corporation
The Claimants, Marcella Liburd, Konris Maynard and the Rt Hon Dr. Denzil Douglas as 1st, 2nd and 3rd Claimants and as representatives of the St. Kitts-Nevis Labour Party, filed an Originating Motion, Notice of Application for Interim Relief, an injunction, pending determination of the Originating Motion, and a Certificate of Urgency on the E-Litigation Portal of the High Court on Friday 22 May. These, along with supporting Affidavits, were served on the Attorney General as representative of the State as 1st Defendant and the ZIZ Broadcasting Corporation as 2nd Defendant on Nomination Day, 27 May. The Court set down the matter hearing for the next day, Thursday, 28 May at 10.00am.
The Claimants asked the Court to make some four Declarations and to put in place an Interim Injunction restraining the various agents of the State and ZIZ. The Declarations sought to declare that the Resolution passed in the House of Assembly to extend the State of Emergency under the Constitution to fight the coronavirus pandemic was null, void and of no effect, and that the Emergency Regulations (COVID-19) (No 7) published on 8 May were disproportionately restrictive and discriminatory against the Labour Party among other things and should also be declared null, void and of no effect. They also sought a Declaration that the St. Kitts-Nevis Labour Party should have access, equal time and coverage similar to what the ruling party, Team Unity, had on the state-owned radio and television.
The Originating Motion is attached here
The Claimants were represented by Sylvester Anthony and Angelina Sookoo-Bobb while the Attorney General was represented by Christopher Hamel-Smith SC and Douglas Mendes SC, with Simone Bullen-Thompson, Tashna Powell-Williams and La Shaun Smart of the Attorney General’s Chambers. ZIZ Broadcasting Corporation was represented by Anthony Ross QC.
Following an initial hearing before His Lordship Mr. Justice Eddy Ventose on Thursday 28 May, the Application for the Interim Injunction came on for hearing before Mr Justice Trevor Ward QC on Friday 29 May. This Application was settled by the end of the day when the Parties negotiated a Consent Order and the Application for the Interim Injunction was withdrawn with no order as to costs. His Lordship also gave Directions for the further management of the matter.
The ZIZ Broadcasting Corporation had published a policy which was more advantageous than that prayed for by the Claimants and a schedule of free and paid time slots on ZIZ Radio and TV between specified times daily up to Election Day for all political parties was agreed to. The Attorney General consented to facilitate a meeting between the Police High Command and representatives of the political parties contesting the elections to discuss campaign issues during the COVID-19 response.
Consent Order is attached here
On Saturday 30 May, a virtual meeting was arranged by the Office of the Attorney General and a zoom link was circulated and representatives of the political parties met with Commissioner Brandy and the Police High Command. In attendance was Hon Mark Brantley for the CCM, Eustace Nisbett for the NRP, Chairman Jonel Powell and Natasha Grey of the PAM, Deputy Chairman Craig Tuckett for the PLP and Dr Asim Martin with his lawyer, Sylvester Anthony, for the St. Kitts-Nevis Labour Party. The meeting was chaired by the Attorney General with Solicitor General Simone Bullen-Thompson.
It should be noted that during the period Sunday 31 May to Thursday 4 June, the Unity Movement, St. Kitts-Nevis Labour Party and NRP candidates took advantage of the schedules of free airtime provided and made several appearances on ZIZ Radio and TV.
Claim No SKBHCV2020/0095 –
Timothy Abbott et al v Elvin Bailey, Supervisor of Elections, and Icilma Fyfield, Registration Officer
On Tuesday, 2 June, Timothy Abbott and Maxine Stanley, in their personal capacity and in a representative capacity, filed a Notice of Application for leave to apply for Judicial Review of an alleged irregular removal from the Register of Voters used in the 2015 General Elections of 184 names in that they were not notified of any hearings by the Electoral Officials and that they were not included in the Register of Voters to be used in the 2020 General Elections for Constituency No 4.
The 2 Applicants/Intended Claimants were joined by 4 others in filing Affidavits in support, but purported to represent a list of 178 names included in a schedule to the application. There was no affidavit evidence linking any of these individuals to the Applicants.
The Claim was filed against Elvin Bailey, Supervisor of Elections and Chief Registration Officer and Icilma Fyfield, Registration Officer for the Constituency, as the intended Respondents. The Claim further sought an interim injunction in which they asked the Court to reinstate all 184 names to the Register of Voters in Constituency No 4 and for all of them to be able to vote in the Elections on June 5 pending the determination of the matter.
The matter was served on Wednesday, 3 June and was heard by His Lordship Mr Justice Trevor Ward QC on Thursday, 4 June, the day before Election Day. Appearances were made by Sylvester Anthony, Angelina Sookoo-Bobb and Renal Edwards for the Applicants, and by Christopher Hamel-Smith SC and Douglas Mendes SC, Simone Bullen-Thompson, Solicitor General and Tashna Powell-Williams.
Mendes SC, for the respondents, submitted to the Court that given the short time to respond, the Supervisor of Elections had not had enough time to refute or confirm the allegation that the six deponents names had been removed unlawfully and without due process and conceded that they had met the threshold for leave for judicial review and interim relief. The Applicants/Claimants and the 4 affiants were allowed to be included in the Register of Voters for the Election Day, 5 June. However no concession was made in relation to the 178 names contained in the schedule attached to the application for leave and interim relief.
His Lordship having heard submissions from both sides, stated in a written judgment that “Given the state of the evidence above, I was not satisfied that the applicants had met the threshold in relation to the 178 persons. I accordingly refused to make the orders sought in relation to them.” The Court did not allow any of the 178 names to be included.
Judgment attached here
Claim No SKBHCV2015/0011
Dr Kelvin Daly et al and the Hon Mark Brantley et al and the Constituency Boundaries Commission and the Attorney General of St. Christopher and Nevis
An Application for Permission to Add Parties to the Proceedings and for Further Orders of the Court was filed on 27 May, Nomination Day, in ‘the Boundaries Case’. This matter had been central to the 2015 General Elections when the Privy Council in England ordered that ‘old’ or ‘existing’ boundaries, and not the so-called ‘Douglas Boundaries’, be used in that election.
The Parties were Dr Kelvin Daly, the NRP candidate in the Nevis 9 constituency and Janice Williams, a voter registered in that Constituency, as the 1st and 2nd Applicants respectively; Applicants/Respondents were the Hon Mark Brantley, Dr. Hon. Timothy Harris, Hon Sam Condor, and Hon Shawn Richards; and Respondents/Respondents were the Constituency Boundaries Commission and the Attorney General of St. Christopher and Nevis representing the Governor General.
The two Applicants sought a number of orders and declarations including to be added as parties to the proceedings. They wanted the Court to declare that the Boundaries case was abandoned and an order that the case be struck out as an abuse of the process of the Court or dismissed for want of prosecution. They claimed that no activity had been conducted in the matter in some three years prior to their filing the matter and that the case would be detrimental to their interest.
If the case was struck out or dismissed, they wanted a declaration that the injunction prohibiting the use of the Douglas Boundaries would fall away. A further Declaration was sought to make Proclamation No.2 of 2015, the Douglas Boundaries, legally binding and valid. Finally, they sought an Order that the Douglas Boundaries would have come into effect when the Parliament was dissolved on 14 May 2020 and would have to be used for the 2020 General Elections.
Application to Add Parties is attached here
The matter came for hearing before His Lordship Mr. Justice Trevor Ward QC on 3 and 4 June, the day before Election Day with appearances by Dr. Dorsett of Antigua leading Angela Cozier for the Applicants, Christopher Hamel-Smith SC and Douglas Mendes SC instructed by Talibah Byron for the Claimants, Eamon Courtenay SC, Iliana Swift and Ravi Rajcoomar instructed by Sherry-Anne Liburd-Charles for the 1st Defendant, and Simone Bullen-Thompson, Solicitor General for the 2nd Defendant.
After reading Affidavit evidence filed in response to the Application and hearing arguments from Attorneys representing the parties, the Attorney representing the Applicants, Dr. Dorset, withdrew the Application to be joined as a party but was granted leave to be heard as an interested party.
His Lordship delivered a written judgment and set the matter down to hear an application to amend to the Fixed Date Claim by the Claimants in the substantive matter. This was granted and directions have been given for further affidavits to be filed, submissions to be filed and exchanged. The Trial for the Boundaries Case will be heard on 5 and 6 October, 2020.
Judgment attached here
With an Injunction still continuing and in place against the use of the Douglas Boundaries, the Register of Voters used in the 2020 General Elections was based on the ‘old and ‘existing’ boundaries, the Register used in the 2015 Elections and the Annual Register of Voters published each year between 2015 and 2020.
