By the Government of the Commonwealth of Dominica
- Much has been said about electoral reform and the current state of affairs following the report of the Observer Mission to Dominica. However, some of the important background facts and events must be properly considered and appreciated in order to place the Mission’s Report and recommendation for a house to house reverification in their proper context.
CHRONOLOGY OF FACTS AND EVENTS TOWARDS REFORM
- February 21, 2011. The Cabinet formally informs His Excellency the President, with a request for the onward notice to the Electoral Commission, of its decision to introduce a national identification card (“national ID Card”) for use in connection with voting. The card will include relevant biometric data and personal details.
- June 15, 2011. The Commission informs the Executive that it is “not averse” to the introduction of a national ID card that can be used for voting and, further, proposes the St. Lucian model.
- July 16, 2013. His Excellency the President requests financing for the issuance and administration of the National ID Card.
- August 20, 2013. The Executive commits to providing finances for the ID Cards and encourages the search for a draughtsman for the legal amendments.
- December 9, 2013. The Honourable Prime Minister, His Excellency, and the Electoral Commission Chair meet to discuss and advance discussions pertaining to the implementation of the National ID Card and the engagement of a legal consultant to facilitate revisions and subsequent amendments to the relevant laws.
- December 1, 2015. Cabinet directs that copies of the Bill for an Act to amend the Registration of Electors Act Chap. 2:03 and the House of Assembly (Elections) Act Chap. 2:01 and the related S.R.O.s be sent to His Excellency for his information and requesting that he forward copies to the Electoral Commission for its consideration, advice, and/or approval.
- December 4, 2015. The Executive submits draft copies of Bills to Electoral Commission for scrutiny and comments: namely the House of Assembly (Elections) (Amendment) Act, Chap 2:01 and the Registration of Electors (Amendment) Act, Chap 2:03.
- September 7, 2016. His Excellency submits to the Honourable Prime Minister, the Commission’s reactions to and recommendations on the draft amendments to the electoral laws and further, advises of the Commission’s availability to discuss the same.
- February 21, 2017. The Executive approves $2,043,108.80 for the procurement of the ID Card management system and a maintenance contract for the same.
- May 2 and 3, 2017. The Executive authorised for expenditure by the Electoral Office:
The sum of $91,402.08 for general staff adjustments at the Electoral Office;
The sum of $3,995,789.49, that is:
- $319,961.45 to employ additional staff required for the confirmation exercise and issuing of ID Cards;
- $274,618.05 to meet the costs associated with clearing the equipment at the port and the installation of the system network;
- $162,408.00 to purchase a passenger bus, pay the cost of premium insurance for the bus, and the maintenance of the same;
- $341,011.58 for the costs of the confirmation exercise to include public relations, subsistence, and rental of property;
- $1,136,546.40 for meeting the costs of travelling to confirmation Centres for confirming overseas-based nationals; and
- $1,761,244.01 to meet the cost of 300 mobile checkpoint units.
- The allocation and expenditures referred to in paragraphs 10 and 11 were all premised on the process of confirmation and ID cards being submitted to and approved by the Parliament.
- May 9, 2017. Cabinet authorises and instructs the creation of legal instruments on electoral reform.
- April 2017. Election expert/Consultant, Miss Pauline Welsh, delivered her Report entitled “Report on Review of Election Law Commonwealth of Dominica”. Miss Welsh was commissioned by the Commonwealth Secretariat to provide technical assistance to the Electoral Commission and Electoral Office in reviewing and advising on the bills. More will be said on this later.
- May 23, 2017. The Executive tables the Bills entitled Registration of Electors (Amendment) Act 2017, and House of Assembly (Elections) (Amendment) Act 2017. These bills provided for among other things
- Codification of the law on bribery and treating;
- The “sanitisation” of the Register by way of a confirmation process which would require persons registered to apply to be confirmed, and show or establish that they in fact had not been absent from Dominica for a continuous period of five (5) years or more immediately preceding the confirmation date; and
- ID Cards with photographs, biometrics, etc.
- May 23, 2017. Gunshots were fired outside Parliament when persons protesting the scheduled debate of the Registration of Electors (Amendment) Act 2017, and House of Assembly (Elections) (Amendment) Act 2017 breached Police barriers and attempted to storm the Parliament. This resulted in the bills not being debated and the premature adjournment of the Sitting of the Parliament.
- May 25, 2017. The Honourable Prime Minister advises the Honourable Speaker of the House that the Government will no longer pursue the debate of the Registration of Electors (Amendment) Act 2017, and House of Assembly (Elections) (Amendment) Act 2017 as detailed in the Order Paper in order “to avoid obvious confrontation that others are seeking.”
- August 8, 2018. The Executive informs His Excellency of Government’s intention to table on September 17, 2018, two revised electoral bills: The Registration of Electors (Amendment) Act 2018 and the House of Assembly (Elections) (Amendment) Act 2018.
- These revised bills removed all references to the law on bribery and treating though the earlier references to bribery and treating sought to do no more than codify the law of bribery and treating consistent with case law authority.
- August 31, 2018. In a radio interview the Leader of the Opposition publicly stated that with the removal of the references to bribery and treating the bills were now in order and that the process can proceed to the required implementation of ID cards and revision of the voters’ list.
- September 7, 2018. An application is filed for various declarations of unlawfulness and/or breach of the Constitution in respect to the Registration of Electors (Amendment) Act 2018, and for an injunction preventing the Government from, in essence, seeking Parliament’s approval to the Bill.
SOME OTHER INDISPUTABLE FACTS
No fraud or fraudulent voting
- There is no record of Dominica having ever had any fraudulent voting.
- There is no report from any Chief Election’s Officer, and the Commonwealth Observers made it clear in their report after the 2014, that there is no record of fraud, personation or fraudulent voting in Dominica.
- Elections petitions were filed by the Opposition after the 2005 and 2009 elections. These petitions were heard and dismissed by the Court. The main allegation, other than the issue of allegiance, concerned the alleged provision of transportation by the DLP to duly registered electors in the Diaspora;
- There was no election petition after the 2014 election;
- The sole “complaint” made over 5 months after the 2014 election in the Magistrate’s Court concerned the alleged offence of treating and two public and open concerts held in Roseau prior to election day;
- There was therefore no allegation or “complaint” of fraud, dead people voting or personation after the 2000, 2005, 2009 and 2014 elections. The current allegations of fraudulent electoral practices: “dead people voting” or personation, made by the Leader of the Opposition and others antagonistic to the Government are wholly unfounded and false;
- The fact that the Leader of the Opposition’s current allegations are false come as no surprise. His allegations have moved through multiple mutations. For example
- Dominican citizens who are duly registered and reside in the Diaspora have no right to vote. The mantra was “vote where you live” and if you do not live in Dominica you have no right to vote: then it was
- Dominican citizens who are duly registered and reside in the Diaspora can vote but they must find their own way home; then
- Roosevelt Skerrit stole 1.2 billion dollars to buy tickets for you to vote. Take the tickets, but if you vote for them that is bribery. But if you vote for the UWP, in good conscience, that is not bribery.
- These are not the only series of mutated allegations by the leader of the Opposition.
- As indicated above, the revised bills provided for a confirmation process, and system for issuance and use of ID cards which the Government and Electoral Commission believed would provide for a fully revised and “clean” list and ID cards as recommended previously by Observers.
- The revised bills were submitted to the Members of Parliament in 2018.
- On the 31st August 2018 the Leader of the Opposition publicly declared that with the removal of the references to bribery and treating the bills were in his opinion in order and that the process to ID cards should proceed. There is no other rational interpretation of his admission having regard to the clear and unambiguous language used by him.
- This unequivocal public admission notwithstanding, the Leader of the Opposition subsequently mutated his position once again to the mantra of “no election without electoral reform”.
The right to vote
- In Parry v Mark Brantley HCVAP 2012/00 the Court of Appeal at paragraphs 49 and 50 said
“The right of enfranchisement
 The constitutional right of enfranchisement is not in doubt. In Russell v Attorney-General of Saint Vincent and the Grenadines, this Court underscored and explained the nature of the rights guaranteed by an almost identical provision in the St. Vincent and the Grenadines Constitution:
“The constitutional right conferred by section 27 is two-fold. The first is the basic right to be registered as a voter in the appropriate constituency. That basic right is granted to every Commonwealth citizen of the age of 18 years or upwards, if he possesses the prescribed qualifications relating to residence or domicile in St Vincent and is not disqualified by Parliament from registration as a voter. The second is the concomitant right to vote in the appropriate constituency. That concomitant right is granted to every citizen who is entitled to the basic right. That concomitant right is a right to vote ‘in accordance with the provisions of any law in that behalf’. This means that although the manner of voting is statutory or customary, the right to vote is inherently constitutional.”
 The Canadian Supreme Court has emphasized the importance of the right to vote, not only as it relates to the system of democracy which it underpins, but also as an expression of the dignity of the individual. The South African Constitutional Court has made the point that the vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. The provisions of the Act governing the exercise of the right to vote may be said to have a constitutional pedigree. In applying the law and the regulations, preference must be given to recognition of the right to vote, and the legislation must be construed in a manner which promotes enfranchisement and guards against disenfranchisement. These concepts and principles apply to the states and territories of the Eastern Caribbean no less than they do in Canada and South Africa.”
- This Government has been, and is guided, by the paramount constitutional principle that in making or applying the law and the regulations, preference must be given to recognition of the right to vote, and the legislation must be construed in a manner which promotes enfranchisement and guards against disenfranchisement.
The Commonwealth Observers and allegations of voter fraud
- There has been much noise on allegations of fraud. This myth, this unfounded allegation, dealt with by the Commonwealth Observers were in Dominica during the 2014 election. At page 12 to 13 of their report the Observers said,
“The Mission notes that within the confines of a small close-knit society as Dominica, verifying the identity of a voter is not a major issue, a view supported by the fact that historically cases of voter fraud have not been recorded in the country.”
The Commonwealth Observers and state of the current Register
- The Commonwealth Observers also addressed the state of the Register at page 20 of their report where they said
“The Mission concludes that, despite its aforementioned shortcomings, the voters’ list did not materially affect the credibility and transparency of the election process and of the results. The list is however widely and publicly discredited and despite, in the Mission’s view, being accurate and appropriate in the eyes of existing legislation, the Mission does not believe it necessarily reflects the reality or the wishes of Dominican society.”
- Despite their finding that the Register was accurate and appropriate under the law and did not affect the election, the Observers repeated, surprisingly, allegations of opinions or wishes of those who met with them, notwithstanding they were not supported by evidence, and contradicted the Observers own findings. Nevertheless, the Observers findings on the integrity and accuracy of the Register are indisputable.
The confirmation process under the revisited bills
- As indicated earlier, an Election expert/Consultant from the Commonwealth, reviewed the respective bills and commended the provisions concerning the confirmation of electors both domestically and in the Diaspora, and the process for issuance and use of national ID cards in her Addendum to Report entitled “Addendum to Legal Consultant’s Report on Review of Election Law. The Election expert/Consultant highlighted the fact that the confirmation of electors and process for issuance and use of national ID cards as set out in the bills provides for a full reverification/confirmation process which gave effect to recommendations of Observers, and reflected international best practices.
- There ought to be no doubt therefore that under the existing bills if a person fails to apply to be confirmed, or is not able to satisfy the Electoral Office that he or she in fact has been present in Dominica for any period in the immediately preceding five years, that person will not be confirmed. Consequently, that person’s name as well as everyone who fails to apply to be confirmed will not appear in the new Register following the confirmation process.
- The Election expert/Consultant reviewed proposed new sections 30 and 31 of Registration of Electors (Amendment) At pages 22 and 23 of her Addendum Report she wrote,
“Comments and Observations
The insertion of this new section 30 is critical to the achievement of a voter’s register which reflects the voting population with some degree of accuracy and correctness. Coupled with proper administrative and other guidelines from the Commission, the achievement of the creation of an acceptable voter’s register can become a short to medium term objective of the Commission. This amendment fulfils one of the important recommendations made in the earlier report for a full reverification/reconfirmation exercise. The amendment requires verification of the electors living overseas at embassies, missions and at other places as designated by the Commission. In order to achieve this overseas verification, wide scale logistic planning will be required. There are several countries that have successfully implemented similar programmes from which the Commission may seek to adopt best practices and lessons learned. Case in point the Dominican Republic employed Voting Coordinators to operate overseas to effect registration. Mexico adopted a similar approach as is being suggested. It means therefore that there are several international cases best practices that the Commission may rely on in order to inform itself how best to give effect to section 31. Such an exercise if not managed and administered properly can become a logistic nightmare. There are examples of jurisdiction where overseas registration was poorly managed and the exercise had to be eventually abandoned.
The Electoral Commission may wish to seek further assistance in this regard from the breadth of existing Commonwealth expertise.’
- Significantly, and it is worth repeating, Election expert/Consultant said in her Addendum Report,
“This amendment (for the confirmation process) fulfils one of the important recommendations made in the earlier report for a full reverification/reconfirmation exercise.”
43. The words “full reverification/reconfirmation exercise” cannot be ignored.
The Observer Mission
- The Government of the Commonwealth of Dominica invited an Observer Mission to Dominica. Following discussions with stakeholders the Mission recommended what is no more than a conditional house to house reverification process because the Mission made it clear that certain persons, even if not met or verified, will not be removed from the Register during this process. In other words, it would not be a “full reverification/reconfirmation exercise.” For example,
- This recommendation places the burden on the Commission, Chief Elections Officer and enrolment or registration officer to go and seek out electors through every village hamlet, town, and constituency who may or may not reside in their place of registration or Dominica. Persons not found, who are disputed or who do not co-operate, would not be removed from the Register during this reverification process;
- The recommendation requires the publication of a list of those not verified inviting them to apply or attend for reverification. However, if those persons do not apply or attend as invited they will still not be removed during this process. This means that at the end of the process, we will not have full reverification or a clean list;
- In stark contrast to the Mission’s recommendation, the confirmation process provided for under the revised bills places the burden on the elector, and at the end of this process, the Register will be fully updated and “clean”. There is no need under the confirmation process to seek any one out. They must apply to be confirmed, and meet the qualifications requirements for confirmation;
- Further, the Mission’s recommendation will require far greater resources, personnel, and time, than required under the confirmation process. As shown above, significant allotment and expenditure of funds for the confirmation and ID card process have already been expended. In any event, no justification was given by the Mission for this additional expenditure;
- Finally, there was no discussion of the contemplated bills or the detailed and critical analysis and recommendations by the Election expert/Consultant. Absolutely no good or valid reason was advanced for not considering the bills and the Election expert/Consultant’s recommendations.