Courts should be given a time limit within which to resolve election challenges

It is now almost two years since the New Democratic Party (NDP) launched its legal challenge to the legitimacy of the results of the general elections of December, 2015.

Today, the challenge remains mired in a legal black hole of motions and counter-motions, with no end in sight. It is therefore perfectly possible that the Government could complete its five-year term, or that fresh elections are called without a judicial resolution of the NDP’s challenge to the 2015 elections.

We do not believe that the framers of our electoral laws could have contemplated or desired that a legal challenge to an election would go unresolved for such a long time.

Two elements inform this thinking. First, the Representation of the People Act gives candidates 21 days after the returning officers have made their returns to file petitions challenging the results of general elections. Second, an electoral term lasts no more than five years; hence, absent an expeditious resolution to the legal challenge, the country’s political stability remains compromised.

The aim of the electoral laws is to confirm the legitimacy and strength of our electoral system. Prolonged, unresolved legal disputes to the elections run in the opposite direction.

What then can we do to escape this trap?

There are two remedies. First, we need to change our laws. We obviously cannot do so in the midst of a legal challenge. The rules of the road are currently set and both parties have a right to fully avail themselves of all legal instruments to make their case before an impartial judiciary. But it is completely within the realm of reason for a future Parliament to enact legislation that mandates the East Caribbean Supreme Court (ECSC) to resolve all legal disputes to our elections within three months. In short, if petitioners are given a time within which they must issue their challenge to an election, the Court too must be given a time-frame to render a judgment on that challenge.

We can take as a model the disputed US presidential election of 2000. Within two weeks, the US Supreme Court rendered a judgment. If the legitimacy of our election is of supreme value to our people, then our laws must instruct our courts to treat these elections with equal measure of devotion.

The second thing we need to do is to change our technologies of voting. All voting mechanisms seek to do one thing and one thing only: allow the voters to securely and anonymously express their electoral preference. And our lawmakers have constructed an entire domain of law, focused on the protection of the ballot in fine detail, instructing on the use of counterfoils, signatures, and the protocols of casting and counting the ballots. In fact, the dispute before the Court is very centred on the interpretation and application of those processes.

New voting technologies, however, could erase many of these controversies and render these laws meaningless. It is perfectly possible for us to use ballots which are read by machines and which provide absolute security and anonymity to the voter. Many countries are using such ballots. It is also possible for us to use touch screen computerized ballots, which also provide complete anonymity and security to the voter. Again, many countries are already using these technologies. In any of these choices, the word counterfoil would disappear from our election lexicon. Of course, computerized voting systems introduce other questions and would require years of voter education and trials before they are fully accepted.

However, none of these changes to law and technology would make the losers of all future elections less unhappy. But moving from an eighteenth century system of laws and technology to a 21st century legal and technological framework is a step we need to take as soon as this current legal challenge winds its way to an end.