The election petitions will fail

EDITOR: Like nearly all countries in the world, democratic or not, St Vincent and the Grenadines, has a representative system of government which means that citizens occasionally vote to elect people to protect their interests and promote their concerns.

Because they are infrequent, national elections are seen as nearly sacrosanct: they represent the only opportunity, save for some rare legal action against the government or an even rarer referendum, for the citizenry to hold their elected representatives to account. Accordingly, it is critical that these elections ensure that the will of the majority is guaranteed.

This guarantee is somewhat problematic because elections are usually held several years apart which means that many if not most of the appointed personnel conducting them are people with little or no previous experience doing so. Further affecting this guarantee is the complexity of election regulations as a reading of our own election legislation, the Representation of the People Act of 1982 (RPA), would instantly show.

The unfortunate result is that unintentional errors are as normal in our elections as they are around the world with one notable exacerbating caveat. In a developing country like our own where the skill of election officials leaves much to be desired, such errors are compounded, as the evidence in the trial clearly and depressingly revealed.

These features were well known by the framers of the 1982 RPA. Like its Caribbean counterparts, provision was deliberately made to make it very difficult to overturn the results of elections for the very reason already given: though mistakes are inevitable, the electoral will of the people must rule because of how limited it becomes once an election is decided. The worst outcome would be for some court to overturn the results of an election that actually reflected the desire of a majority of the electorate.

This principle of voter supremacy holds even if many law-breaking errors occur in the conduct of the vote and the tabulation of the results, keeping in mind the provision that election officials could be criminally prosecuted for breaches of the Act. This is crystal clear in the 1982 RPA which states:

“Notwithstanding anything contained in the provisions of this Act, no election shall be declared invalid by reason of non-compliance with the provisions of this Act or of the rules thereto or of the regulations made thereunder, or any mistake in the use of the forms prescribed under this Act, if it appears to the court having cognizance of the question that the election was conducted in accordance with the principles laid down in this Act, and that such non-compliance or mistake did not affect the result of the election.”

None of the examples of “non-compliance” or “mistakes” offered by the petitioners, separately or in total, affected the result of the election.

The leadership of the NDP, an organization with several trained lawyers, fully aware of all these considerations, launched the petitions only to keep their base of voters energized until the next election seemingly indifferent to its huge legal and social costs for the country as a whole.

According to lawyer and Senator Kay Bacchus-Baptiste in a statement made seven months before the trial:

“As far as I am concerned, — let me speak politically — politically, we have already won in relation to what we set out to do for the petitions.”

Translation: “Politically, we have convinced our supporters that two seats were stolen even though this would be impossible to prove in a court of law.”

Equally telling, when Ms. Bacchus-Baptiste used the words, “Regardless of what happens on the 21st [of March], we have won those cases” at a recent post-trial rally, she meant that NDP brass realistically expects a loss.

When Stanley John, lead counsel for the petitioners, tried to use the abstract and unstated declarations of the Constitution to challenge the election results in Central Leeward instead of the detailed requirements of the 1982 Act he also reflected the hopelessness of the NDP’s case because he knows more than anyone how high a bar the Act has set for overturning elections.

The NDP long ago declared that its two failed 2015 candidates would appeal any negative decision. It has a legal right to do so. But the Party’s chances of a reversal of Judge John’s expected decision range between zero and none, as similar cases have shown. When it comes to election petitions, legal precedent is paramount.

The founder of the NDP, Sir James F. Mitchell, one of the most successful politicians the Caribbean has ever produced, warned the Party about how harmful these petitions were for its future electoral prospects when he said:

“But one thing I know, the courts can’t say is that ULP lost the seat [in Central Leeward] and when you are finished an election, in my book, number one, you have to concede defeat.”
His once glorious Party, lost in the wilderness since 2001, has stubbornly ignored this sage advice.

C. ben-David