Roseau, Dominica (TDN)
The Caribbean Court of Justice (CCJ) has ruled that “…there remain areas of grave concern about how the process of these elections [2019 General Elections] was conducted. Future elections in Dominica ought not to proceed with these or similar taints.”
The ruling by the justices of the CCJ came in the case brought by Glenroy Cuffy, Dayne Oswald George and Atherley Robin (Appellants), against Melissa Skerrit, Prime Minister Roosevelt Skerrit, the Attorney General of Dominica, the Commissioner of Police, and members of the Dominica Electoral Commission.
On 5 July 2022, at about 1:30 P.M the CCJ gave its decision. The Court was asked to rule in the very narrow matter of whether the Court of Appeal erred in not hearing the appeal brought by the appellants against the failure of the high court to hear election petitions.
Following the 6 December 2019 General Election results, the Appellants (at that time the Petitioners) claimed that in ten constituencies, the candidate declared to be the winner had not been validly elected. They alleged that the elections were plagued with election offences, breaches of electoral laws and other irregularities. However the High Court Judge struck out the petitions.
The decision of the High Court judge was immediately appealed to the Court of Appeal by the Petitioners. The Court of Appeal, however, found that the High Court judge did not decide the petitions on their merits and therefore his decision was not final. The Court of Appeal then declined jurisdiction to hear the appeal.
The CCJ ruled that the Court of Appeal was correct in not hearing the appeal because the High Court had not heard the case and therefore did not make a final ruling. In the absence of a final ruling by the High Court there was nothing that the Appeals Court could do.
Notwithstanding this ruling, the CCJ castigated the Court of Appeal for not giving a hearing to the appellants on constitutional grounds. “ …in relation to the electoral lists issue and the related preliminary conclusions of the trial judge on the pleadings as to unlawfulness, the Court of Appeal arguably may have had jurisdiction on constitutional grounds, irrespective of whether the decision was considered, in the contexts of ss 40(6) or (7), final or not,” the CCJ opined.
“There can be no doubt that this particular decision [by the Court of Appeal] conclusively pre-empted any further inquiry into arguably unlawful conduct by the election authorities that potentially went to the root of free and fair elections.”
In other words in the view of the CCJ the petitions were sufficiently serious as to call into question the validity of the elections. As such notwithstanding the errant actions of the trial judge, the Court of Appeal should have intervened to hear the appellants on these egregious issues.
Most of the opinion of the judges centered around the very disturbing picture painted in the petitions by the appellants. Although not obliged to, they were sufficiently troubled and as such spent a significant amount of time dealing with the ‘taints’ or the many breaches of the election process.
Of particular concern was the reported failure of the Electoral Office to provide updated and ‘clean’ lists for the 2019 election. The CCJ noted that “electoral lists are central to legitimate and lawful elections. The duty to maintain the integrity of lists of electors falls to the Electoral Commission.
One complaint in these matters is that: ‘The polling clerks, returning officer, and Chief Elections Officer failed to use the revised annual list and the supplementary register as the register of electors of the polls’ (‘the list complaint’). Of the ten petitions filed, nine contained the list complaint.”
The CCJ was clearly troubled by the total disregard for the sanctity of the electoral lists, which allows for the removal of persons who have died and those who do not qualify under the residency criteria.
“In principle, the integrity of the electoral lists is also what is really at stake. The view of this Court is that non-compliance of electoral laws in this regard is an eventuality that ‘the court must resolutely set its face against,” the CCJ noted.
The CCJ pointed to established case law which notes that, “if the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected or not.”
Further, “an election that is not in substantial compliance with the law is one where there is such a departure from the law as to the conduct of the elections that the election may be condemned as a sham or a travesty,” the CCJ observed.
It is important to note that the CCJ did not throw the case back to the High Court since in their considered opinion it would be too late to remedy the 2019 election. They were however very clear that future elections in Dominica should not be similarly conducted.
Finally, the CCJ dismissed the Appeals Court ruling which charged costs of the defendants to the appellants.