—Dr. Derek O’Brien, Reader in Law, Oxford Brookes University
St Kitts and Nevis is the smallest federation in the world. Even by Commonwealth Caribbean standards it is tiny, with a population of just over 50,000 and a combined land mass of just over 100 square miles. Yet the events leading up to and immediately following the most recent general elections in St Kitts and Nevis, in February 2015, have caused many political leaders in the Commonwealth Caribbean to be concerned about their potential to tarnish the entire region’s reputation for democratic government and commitment to the rule of law.
For the last 20 years St Kitts and Nevis has been governed by the St Kitts and Nevis Labour Party (SKNLP), led by Denzil Douglas. Recently, however, the SKNLP has struggled to hold on to power, with increasing discord within the SKNLP resulting in the resignation of the deputy Prime Minister, Sam Condor, and the dismissal of another senior government minister, Timothy Harris, in early 2103. In this blog post I wish to explore just how far the SKNLP was prepared to go in its struggle to hold on to power and to consider why it has aroused so much concern among the region’s political leaders.
I. Avoiding a vote of no confidence
One of the distinguishing features of the Westminster model is the principle that the executive is formed by and is, ultimately, accountable to the legislature through the convention of collective ministerial responsibility. This means that a government which loses a vote of no confidence in parliament is expected immediately to resign. In St Kitts and Nevis this principle is enshrined in s.52(6) of the Constitution which provides that:
The Governor General shall remove the Prime Minister from office within three days after a resolution of no confidence in the Government is passed by the National Assembly and the Prime Minister does not within three days either resign from his office or advise the Governor General to dissolve Parliament.
A motion of no confidence was first submitted by members of the opposition in St Kitts and Nevis, in December 2012. However, despite an assurance by the Speaker that it would be heard as soon as possible, and despite numerous requests by members of the opposition, the motion had still not been debated by April 2013 when members of the opposition filed an originating motion in the High Court seeking, inter alia, an injunction requiring the Defendants–who included the Prime Minister, his Cabinet and the Speaker of the National Assembly–to take whatever steps were necessary to ensure that the motion of no confidence was debated as soon as may be practicable. Almost immediately, following the filing of the originating motion the Defendants filed separate applications to strike out the motion and for a number of declarations. Though these were dealt with as preliminary legal issues, they raised jurisdictional questions of considerable constitutional significance, being concerned with nothing less than the boundaries that separate the respective jurisdictions of the courts and parliament.
In defining these boundaries the Court held as follows.
Firstly, that where a country like St Kitts and Nevis has adopted a written Constitution based on the Westminster model, the principle of parliamentary privilege has to be modified to permit the Court to intervene to ensure that the actions of the National Assembly are consistent with the Constitution.
Secondly, that where the Constitution provides for a motion of no confidence each member of the Assembly has an implied and substantive right to request that a motion of no confidence be debated and voted within a reasonable time as a matter of priority. In support of this right the Court has the power to intervene and to declare a breach of the Constitution where the motion of no confidence has not been debated and voted within a reasonable time. In most, if not all cases, such a declaration should be enough on its own to achieve all that is needed. Indeed, where the breach concerns the internal procedure of the National Assembly it would only be in the rarest of cases, and only where every other course had failed, that a Court would consider the grant of an injunction to preserve the sanctity and dignity of the Constitution.
Thirdly, that it is not the job of the Court to determine whether a motion before parliament is of the right kind or not. It is the duty of the Speaker to place the motion before the National Assembly and to let the Assembly decide. Fourthly, it is the duty of the Speaker to regulate the conduct of the proceedings in the Assembly and not the Prime Minister or his Cabinet. Since there was nothing in the pleadings to ground an allegation that the Prime Minister or members his Cabinet had prevented the Speaker from tabling the motion of no confidence for debate the proceedings against the Prime Minister and his Cabinet would be struck out, but the claimants would allowed to proceed with their substantive motion against the Speaker.
Immediately following the judgment both sides claimed victory. The opposition claimed that the judgment had vindicated their right to have the motion of no confidence debated before parliament, while the Prime Minister argued that the dismissal of the proceedings against himself and his Cabinet was a victory for the Government.
The judgment did not, however, stem the tide of criticism of the Government’s conduct and the continued failure to hold the no confidence debate by other political leaders in the region.
Lester Bird, for example, the former Prime Minister of Antigua and Barbuda, himself no stranger to allegations of constitutional impropriety (see D O’Brien, The Constitutional Systems of the Commonwealth Caribbean (Hart Publishing: Oxford: 2014) pp.s 87-88) , declared that:
the democratic process in St Kitt and Nevis is being undermined.
The Prime Minister of St Vincent and the Grenadines, Ralph Gonsalves, also noted that
a motion [of no confidence] ought to be deliberately considered and determined by the legislature in the shortest time practicable…That is an established constitutional convention in parliamentary democracy.
Such criticism however, made little impression upon Denzil Douglas or his Government. Moreover, as Ralph Gonsalves himself noted, in many ways the launch of legal proceedings by the opposition had played into the Government’s hands as it allowed the Prime Minister to declare that he was happy to sit back and await the outcome of the opposition’s substantive motion, knowing that there was absolutely no prospect of either the claimants’ substantive motion or the motion of no confidence being heard prior to the 2015 elections.
II. Rushing through boundary changes
In the meantime, upon learning that the Government was proposing to introduce certain boundary changes recommended by the Constituency Boundaries Commission (CBC) prior to the elections in 2015, lawyers acting on behalf of the opposition parties immediately notified the Prime Minister of their intention to challenge the recommendations on the ground that they did not comply with the requirements of Schedule 2 of the Constitution, which provides for an equal number of inhabitants in each constituency as far as is reasonably practicable always having regard, inter alia, to the need to ensure adequate representation of sparsely populated rural areas.
This set off an extraordinarily rapid sequence of events, all of which occurred within the space of six hours.
It began with the signing of a draft report by a majority of the CBC at 2pm on 16th January (the opposition members of the CBC having refused to sign the draft report). This was followed by an emergency meeting of the National Assembly, at about 4:35pm, to approve a draft proclamation giving effect to the CBC’s report. The draft proclamation was then signed by the Governor General at about 6:20pm (the ‘impugned proclamation’) at the same time as the Governor General signed a proclamation dissolving Parliament, with effect from 16th January, and providing for a general election to be held on 16th February 2015. Some time between 6:30pm and 6:50pm, an announcement was broadcast by the Prime Minister on television and radio that the impugned proclamation had been “gazetted” (in accordance with s.119 of the Constitution) and that Parliament had, accordingly, been dissolved.
The speed with which the Government acted in having the draft report approved by the National Assembly and then proclaimed by the Governor General can be explained by reference to the ouster clause contained in s.50(7) of the Constitution. This provides that once a proclamation has been ‘made’ by the Governor General after it has been approved by the National Assembly the validity of the proclamation cannot be enquired into in any court of law. The Government clearly believed, therefore, that if they could get the report containing the proposed boundary changes approved by the National Assembly and proclaimed by the Governor General before the opposition parties became aware of it the latter would, thereafter, be prevented from mounting a legal challenge to the boundary changes by reason of the ouster clause.
Notwithstanding the existence of the ouster clause the opposition parties immediately applied for and were successful in obtaining an interim injunction at 7:38pm, prohibiting the Governor General from making the impugned proclamation until the determination of the applicants’ legal challenge to quash the CBC report. The interim injunction was, however, subsequently discharged by the Eastern Caribbean Court of Appeal on the ground that the impugned proclamation had been ‘made’ by the Governor General before the interim injunction had been granted.
The Government’s efforts to rush through the boundary changes were ultimately, however, to no avail. This was because upon the opposition’s appeal to the Judicial Committee of the Privy Council (the ‘JCPC’) (Brantley and others v CBC and others  UKPC 21), which still remains the final appellate court for the majority of countries in the region, it was held that the impugned proclamation by the Governor General had not been ‘made’ in accordance with s.50(6) of the Constitution until it had been published in the Gazette, in the sense of a hard copy of the Gazette being available to the public; broadcasting the proclamation on the radio and television presumably being insufficient to satisfy s.50(6). On the basis of the unchallenged evidence adduced by the appellants, this was not before the 20th January 2015 at the earliest.
Since s.50(6) also provides that a draft proclamation by the Governor General, approving a CBC report, only comes into effect upon the next dissolution after it has been ‘made’ it followed that the dissolution of Parliament, which took effect from the 16th January 2015, predated the ‘making’ of the impugned proclamation. As a result the impugned proclamation, even if valid, would only take effect on the dissolution of the Parliament that was elected on 16th February 2015. This meant that the election which was due to be held on 16th February would have to be fought on the basis of the boundaries existing before the purported alteration on 16th January 2015.
III. Delay in announcement of the outcome of the February 2015 Elections
The elections that were held, following the judgment in Brantley and others, and which were won by a coalition of the People’s Action Movement, the People’s Labour Party and Concerned Citizens Movement, which between them won 7 out of the 11 available seats, have been described by one eminent Caribbean commentator, Sir Ronald Sanders, as a ‘fiasco’ due to the failure of the Supervisor of Elections to declare the results until two days afterwards. As Sir Ronald Sanders noted, there were only 30,000 voters in the election and even if the votes had been counted twice for accuracy, as the Supervisor of Elections had claimed, a final count should have been available by midnight on the day of the election at the latest. The former Prime Minister of St Kitts and Nevis, Kennedy Simmonds, was even more stinging in his criticism:
What we are seeing here…is totally unprecedented…we are once again being made the laughing stock all over the Caribbean and the world.
The Prime Minister of Trinidad and Tobago, Kamla Persad-Bissessar, was also concerned about the implications of the delay for the region’s reputation for democracy and for free and fair elections:
As a region we have to be very careful of the messages that we send and that which is emanating from St Kitts and Nevis is not the kind of message we want to send to our people and to the world.
The common thread that runs through all of the above events is the extraordinary power of patronage over the key actors in the unfolding constitutional drama that was vested either directly or indirectly in the Prime Minister by the Constitution of St Kitts and Nevis. For example, the Speaker is elected by a majority of votes in the National Assembly, but since the Government controls a majority of the votes in the National Assembly the Prime Minister’s preferred candidate is inevitably elected as Speaker. The Speaker was essentially, therefore, no more than a convenient scapegoat for the Prime Minister’s unwillingness to face a vote of no confidence.
The CBC too is dominated by members appointed upon the recommendation of the Prime Minister. It is hardly surprising, therefore, that it is not perceived by the opposition parties to be politically neutral or that they were suspicious of its motives when recommending boundary changes so close to the election. The Governor General also is appointed upon the recommendation of the Prime Minister and holds office at the Prime Minister’s will. The final character in the drama, the Supervisor of Elections, is also appointed upon the recommendation of the Prime Minister, thereby giving credence to the suspicion, however ill founded it may have been, that the delay in announcing the results of the elections was ultimately due to the Prime Minister’s reluctance to relinquish power.
These powers of patronage are not exclusive to the Prime Minister of St Kitts and Nevis: they are common to Prime Ministers throughout the region. Rarely, however, has there been such a concatenation of events, highlighting so starkly the potential for the abuse of these powers by a Prime Minister determined to remain in office. If nothing else, events in St Kitts and Nevis should serve as a wake up call and should cause political leaders across the region to look to their own constitutions and to consider whether or not their own powers of patronage need to be reined in if the region’s reputation for a commitment to democracy and the rule of law is to be preserved.
Suggested Citation: Derek O’Brien, Westminster in the Caribbean: The Problem of Prime Ministerial Patronage, Int’l J. Const. L. Blog, June 26, 2015, at http://www.iconnectblog.com/2015/06/westminster-in-the-caribbean-the-problem-of-prime-ministerial-patronage