Could Grenada’s 2018 voting be declared unethical and illegal?

by JK Roberts (Sound Public Policies Advocate)

Many of the congratulations and commendations from various circles and institutions, extended to Prime Minister Dr Keith Mitchell on his record-making success in Grenada 2018 general elections, is not without diplomatic qualms. In fact, the results of the elections have been attracting many analyses, sentiments and commentaries; and the motivations for and deductions of most of those feedback point to an election which was not conducted ‘clean and fair’ but produces many lessons.

Both initial reports of the Caribbean Community (Caricom) Election Observation Mission and the Organisation of American States (OAS) Electoral Experts Mission are telling, especially in respect of the integrity of the voting process on the elections day. The OAS also focused on the process of voters registration and Caricom also focused on the process of the tabulations, communications, verification and publicizing of the voting results. The recommendations on these issues would not have been enunciated so serious, if ‘just and decent’ conduct was had for the elections, to reflect the ‘substance and spirit’ of the pertinent laws as well as the constitutional democracy which the nation is ascribed to.

Indeed, there have been blatant abuses and breaches of the principal law governing the elections in Grenada; that is, the Representation of the People Act (RPA) Cap. 286A. The officials and the electors for the 2018 elections acted contrary to the law. Whilst the electors must be excused based on having been uniformed and wrongly informed, it seems that the officials erred in many respects (by commissions and omissions) intentionally. Could the voting then be proven to have been conducted in an ‘unethical and illegal’ manner, and furthermore must be declared ‘null and void’? Is there any statutory limitation on bringing constitutional and/or legal challenges to voting, and/or to elections?

The Supervisor of Elections has been asked in correspondence last month, to present a public report on the performance of the Parliamentary Elections Office (PEO), in its conduct of the 13 March 2018 elections; review the internet-circulated article “Open Letter for Verdict on Grenada’s Parliamentary Elections Office”. Note though that any questionable performance of the PEO would also implicate the office of the Attorney-General (OAG) since it could be argued that the PEO may have been legally counselled and directed by the OAG; this office being the principal legal advisor to the Government.

A similar call is now placed to the other key players or stakeholders in the elections. As the main parties, both the National Democratic Congress (NDC) and the New National Party (NNP) also need to be investigated in the interest of the general public, especially the patriotic persons who have voted, to ascertain what role they had to determine the elections outcome; each needs to answer about its knowledge of the elections law (RPA, Cap 286A), as well as about the application with effect of this law.

There would be concerns as to whether or not the NDC is also culpable for the many irregularities which occurred on elections day; apparently by it having no knowledge and wisdom on the provisions of RPA Cap 286A, or by having ignored the importance of observing and protecting those provisions strictly. How vigilant and proactive, or how ignorant and unprepared, was NDC in ensuring a ‘free and fair’ elections; or was the party also playing ‘the game’ but was just outplayed or outsmarted by NNP?   It is atrocious for politicians to exploit ‘serious’ loopholes and shortcomings in the national laws and systems to their aggrandisement and pomposity, at the expense of the nation’s welfare and image; and particularly for them to engross in elections fraud, aware that judicial review is tedious and quite futile.

Unquestionably; NNP’s political leader, Keith Mitchell, knows the value of winning an elections and how to win (by whatever the means). He also appears to know how exactly an elections process can be manipulated, so as to ensure a win. Whatever had been the basis (whether intimidation ploy, manufactured suspicion, natural aggression, prudent preparations, or the case may be), Mitchell then in opposition, invited Trinidadian politician and former Attorney-General and Legal Affairs Minister, Ramesh Lawrence Maharaj, to lead a team of local and regional lawyers to monitor the proceedings of Grenada 19 February 2013 election day, on behalf of his party. According to the Trinidadian Guardian Online news-item of 19 February 2013 captioned “Ramesh heads legal team for Grenada elections”, Ramesh revealed that he was meeting with “polling officers and other election-day functionaries to ensure there are no irregularities”. Again; experienced Senior Counsel Ramesh was influential for the 2018 elections on NNP’s campaigns, apparently giving legal advice and oversight, and political moves.

On the other hand, it appears that NDC has been complacent with confidence, relying on ‘transparency and honourableness’ in the execution of the elections, to the extent that it may not have even educated properly and thoroughly its candidate-agents for the polling stations, on their roles and rights on elections day. The advice by one of NDC’s losing candidates in the recent elections, Rae Roberts, for “Only people with the Parliamentary ID Card must be allowed to vote”, in an article by the same name and circulated in the local newspapers on Friday, 6 April 2018, may be speaking about his perception of an absence of pertinent provisions on the ID Card in the elections law (RPA, Cap 286A), or of a non-enforcement of the pertinent provisions in the law. If the latter is true, then what recourse is he anticipating to be had in the future, if the amendments suggested are made but sullied, that cannot be attempted now on what is already provided in the law?

Some of the pointed questions on the due process, or the ethical and legal aspects, of the voting which took place on 13 March, is mainly pertinent to sections 24, 58 and 59 of the Principal Act. Section 24 commands for the Supervisor of Elections to issue to every person duly registered as an elector a voter identification card. What is the logical and official ‘importance, purpose and application’ of this card?  Is a duly registered elector legally mandated for, or entitled to, the card; and thus, can such a person take legal action when the card is not issued to him or her, and/or when the opportunity is not given to honour the issuance of the card for the implied or intended purpose? Could it be concluded that it is an outrageous conspiracy of deceit and betrayal for the PEO to delay the issuance of cards, and to advise and announce to the Grenadian public that the Voter Identification card (I.D. Card) is not necessary for voting at elections; and emphasising that the principal elections law, RPA Cap. 286A, does not say so?

Section 58 subsection 2 of the RPA states, “… a person who is qualified and registered to vote, shall on polling day, presents his voter identification card to the presiding officer”. Is there any conditionality and technicality of legal interpretation and/or of human rights for this provision? On whom is the burden of responsibility for presenting the card?   Is contravening this provision a crime? Could action be taken by the office of the Director of Public Prosecution for the contravention of this provision?

Section 59 of the said law speaks about “question to be put to voters and identification on card”. Particularly, subsection 2 instructs that the presiding officer shall also request that person (applying for a ballot paper to cast his/her vote) to produce his or her voter identification card. For clarity and certainty, both sections 58(2) and 59(2) are expanded by section 59(5) to give the precise factors for the opportunity to vote. On whose authority for the 2018 voting would the presentation of another form of personal identification, such as a passport, be accepted? Was any presiding officer negligent on duty, or was he/her schooled not to request for the required voter identification card?

A pointed question is on the type of training and guidelines given to the elections officers and the other persons, such as the registration/returning officers, the presiding officers, the poll clerks, and the political candidates and agents. The PEO repeatedly assured the press and public that it is always in the readiness mode for elections. One of its officials reported to The New Today newspaper in April 2017 that training is an ongoing process because … amendments are always changing. “We still have the pool of Presiding Officers who are highly trained also to choose from and even with them training does take place, especially as we get into the heat of an election. Training is ongoing because we do train our Electoral staff, our Presiding Officers, our Poll Clerks and so forth”, as he elaborated on his assurance.

The principal elections law, RPA Cap 286A, originates from section 32 of the 1974 Constitution of Grenada; this section provides for the qualification and disqualification of persons desirous of registering to vote, in an elections of members of the House of Representatives. Unfortunately, persons were facilitated by Justices of the Peace (JPs) for registering and voting in the last elections, in such a manner which may be seen as ultra vires of the RPA Cap 268A, as well as The Magistrate Act, Cap 177 (Revised Edition, Laws of Grenada) as relates to the appointments and obligations of JPs (sections 10 – 15). Moreover; the upsetting experiences of most genuine voters on the elections day range from the misuse (or no use) of their voter identification cards to the abnormality of the voting ballot papers (of transparent quality), thereby compromising or putting at risk the security and secrecy of the voting population in the exercise of its fundamental franchise on election day, 13 March 2018 in Grenada.

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