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Where law and politics meet


Judgement day has arrived.

Today, Justice Esco Henry will say if the election petitions filed by the opposition New Democratic Party (NDP) will go forward, or if they will be struck out. Both of these decisions have far-reaching consequences.

If, indeed, the learned judge strikes out the petitions, as the Government has argued should be done, on the legal principle that the petitioners had failed to meet the conditions necessary for petitions to go forward, the substance of their case will never be heard. At the heart of that case is the claim that the Government, through electoral malpractice, illegitimately held on to power.

In such an instance, the petitioners (NDP) are unlikely to give up on their claims of a fraudulent election, because it has been a rallying cry for the past 18 months. Such a decision will not bring closure to the political divide; it may in fact, serve to deepen it. There is, therefore, clear value in having the court rule on the legitimacy of the election itself.

This value, however, is constrained by an unnegotiable burden: time. This present process has already taken 18 months. If the judge indeed rules in the favour of the NDP that the merits of the case be heard, it is beyond doubt that we can expect a new set of submissions by lawyers for the petitioners and the respondents and the inevitable appeals.

Our electoral system, however, has a finite capacity. Governments do not last more than five years and can in fact call an election at any time. It is therefore certain that by the time this process runs its course, if allowed to go forward, we would be deep into the five-year mandate that the Constitution allows.

What this therefore means is that there is virtually no circumstance under which a decision contrary to the position of the Government does not end up in a general election being called.

What we have here, is the intersection of law and politics. In this kind of collision, there is no path forward which comes without a price.

At the end of the day, we are a nation of laws and whatever the court rules, that is precisely how we must proceed.