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Mark Brantley v. Hensley Daniel et al (Claim No. NEVHCV2011/0130)

Below are the salient findings of Mister Justice Lionel Jones in the historic election petition filed by Mark Brantley of the Concerned Citizens Movement touching and concerning the Nevis Island Assembly Elections of July 11th, 2011. The decision of Mister Justice Jones was handed down on 21st March, 2012 and declared the election in the district of St. Johns invalid and void. The case for the Petitioner was led by Douglas Mendes, SC and that of the Respondents by Anthony Astaphan, SC:

1. “…. The Nevis election was held at a time less than seven clear days after nomination day. The election date should therefore have been July 12th.

My own view however is that the provision is directory as only unjust consequences would follow if an election were to be declared void by holding this provision to be mandatory.

Bearing in mind that the elect ion was held one day early, drives me to the conclusion that no unjust consequences resulted and I am disinclined to attach any weight to this error” (page 32 of Judgment)

2. “To hold Radix v. Gairy up as the answer to any and every complaint about the integrity of an election list after the election is held is wrong. To do so leaves the way open for unscrupulous officials to manipulate the system and release at the last moment lists satisfactory to them for whatever reason.

In the instant case the confirmed election list was published a few days before the election with very little opportunity to pursue legal action” (page 99 of judgment)

3. “It is convenient at this stage to give consideration to the question of the method of postage stipulated in the above Regulations. Before considering the arguments advanced on this issue, I wish to make some observations of my own. There is no dispute that by Regulation 19 the Registration Officer shall “send by registered post or in writing of which there is evidence that it has been received by the addressee a notice …”

The Regulation clearly gives a choice to the Registration Officer to select one or other of the methods. Either choice, having regard to the obligation on the Registration Officer, the intention must be that the addressee receive the notice. In modern society, there are a number of methods that can be used in communicating with persons … The choice made would invariably be the one which in the senders view would achieve that purpose… Should registered mail not serve that purpose, there are always alternative methods. The Registration Officer should therefore choose the method which would give effect to the fundamental right to vote, that is one which ensures receipt by the voter” (page 105 of Judgment)

4. “The Registration Officer, Ms Bernadette Lawrence holds the view and has been emphatic in her response that sending by registered mail requires no more from her than delivering the mail to the Post Office. She claims to have no further responsibility in the matter. The rest is in the hands of the Post Office. In other words, it is not her duty to ensure or be satisfied that the mail has reached the intended recipient …

This extract of Ms Lawrence cross examination puts into clear perspective the conduct of the 3rd Respondent (Ms Lawrence) in the performance of her duties with respect to the determination of objections to the registration of voters. To state that delivery to the Post Office is receipt by the voter is illogical and defies common sense. To hold such a view shows total disregard for the rights of voters and their entitlement to natural justice. In the exercise of her functions, the Registration Officer is expected to act in a procedurally fair manner. She chooses not to send fresh notices when it is obvious that the first notices were out of time. The reason given was that the law permits her to hear matters in the absence of the objectees.

On the evidence some 114 persons could not have received their notices five days before the hearing.

In this case the names of a number of persons were removed from the list following an unlawful process conducted by the Registration Officer. The decisions taken were therefore null and void” (pages 105 and 109 of decision)

5. “It is not unlawful to vote in a constituency in which one does not reside unless there had been a successful objection to ones registration. In the circumstances, there was nothing to prevent those persons from voting in the constituency in which they were registered. But the facts show also that a number of persons had not moved. But in any event, even if they had changed residence, the result would have been the same; the notices could not have reached them before the date fixed for the hearing” (page 109 of judgment)

6. “… the Registration Officer had not understood the importance of sending by registered mail, according it a lower status than sending notice in writing of which there is evidence that it has been received by the addressee. Furthermore, in this case the requirement was that the notice should not only be received by the objectee, but it must reach him five days before the date fixed for the hearing. I hold, therefore that the hearings held by the Registration Officer in respect of the 24 persons who had received no notice, the 14 persons who received notices after the date of hearing and the 76 persons whose notices were stamped April 26th, 27th, 28th and May 4th and 5th who even if they had received notices would also have received the notices after the date fixed for hearing a total of 114 persons were disenfranchised, their names having been removed from the Register without being afforded a hearing and without due process” (page 114 of Judgment)

7. “Notification to a person affected by any decision is also a fundamental tenet of natural justice. The House of Lords decision in Regina (Amefrigeva) v. Secretary of State for the Home Department and another (2004) AC 604 highlights the principle” (Page 114 of Judgment)

8. “There were a number of factors which contributed to the unlawful determination of objections by the Registration Officer… Regulation 19 mandates the Registration officer to send out the notices immediately after receiving any notices of objection. The Petitioner has complained that the Registration Officer had not acted with the type of dispatch required and this was a main contributor to the difficulties she experienced. The Registration Officer had complained about the large volume of objections lodged on this occasion. However, while one can be sympathetic where constitutional rights are involved, there can be no excuses. There are compelling reasons why the exercise should receive the highest priority. Depending on the terms of the objections, objectees must prepare themselves, having available all requisite material, documents etc. to allow them to answer the allegations. (Page 116 & 117 of judgment)

9. “Regulation 21 quoted above mandates the Registration Offices, not later than fifteen days after the posting up of the Register of Voters or Monthly Lists to cause to be affixed on each of two conspicuous buildings in the polling division in the constituency, a list of names of persons for the polling division to whose registration notice of objection has been given and such lists shall remain posted for a period of five days.

The intention of Parliament is obvious. Voters would become aware that their registration had been objected to in advance of the hearing whether or not a notice had been received by mail. In a small country like Nevis, relatives and friends who have viewed the publication will… inform their friends and relatives about it so that they are forewarned of a pending hearing. Political parties will also be made aware of any developments affecting their constituents.

Section 46 which mandates the Chief Registration Officer to make all additions to the appropriate monthly lists and shall make removals therefrom in consequence of any action taken under sections 39 and 45, requires the Chief Registration Officer to publish as soon after the fifteenth day of the next succeeding month and in any case not later than the last day of each such month the corrected monthly lists as the revised monthly list of voters. That is also an avenue by which voters can be made aware of what is happening and permit persons who are of the view that their names were wrongfully removed from the lists to lodge appeals- vide Allistair Hanchell v. Noel Shippings and Ord. – Turks and Caicos Island, Action C.L. No. 25 of 2003.

It is to be noted that Revised Monthly Lists are not published in Nevis contrary to section 48 of the National Assembly Elections Act Chap. 2:01. To suggest that there are other avenues from which the information can be obtained flies in the face of the Parliamentary intention for the enactment of that provision”. (Page 117 of Judgment)

10. “Before moving on, I will like to make special mention of the plight of the eleven overseas voters who had been denied the right to vote in the July 2011 elections. These citizens of St. Christopher and Nevis were struck off the Register of voters by the Registration officer after objections to their registration ostensibly on the ground of non-residence. The National Assembly Elections Act Chap 2.01 makes provision for citizens of St Christopher and Nevis who reside overseas to be able to vote in the Federation in the constituency in which he or she had been registered prior to leaving the Federation- vide section 42.

No notice of objection was received by anyone of them and furthermore because of the non-publication of the list of objections and the Revised Monthly Lists, there was no way they could have become aware that there were objections against them. It is not known what evidence was adduced against them, but they for obvious reasons could not have appeared at the hearings.

On election day, they were turned away at the polling stations, having travelled all the way to Nevis from their respective abodes for the purpose of exercising their franchise.

To say that they too are subject to the objection process, is to oversimplify what is in effect a matter of considerable importance in a country that allows overseas voters.

Maybe the time has come to put in place special rules for dealing with these special citizens and so avoid the unfortunate experience of July 2011. (Pages 117 and 118 of Judgment)

11. “I return now to a topic I had mentioned earlier in this judgment. That relates to the position of persons who had grasped the opportunity to confirm their registration during the 2007-2008 period pursuant to the provisions of the National Assembly Elections (Amendment) Act 2007 intended to reconstruct a new register of voters.

Several persons who had confirmed their registration and had voted in the 2010 Federal Elections were removed from the list in 2011 and were deprived of the right to exercise their franchise. Those who gave evidence including the overseas voters expressed their dismay at this development.

At the time of the exercise the Supervisor of elections, the 2nd Respondent made a statement at an interview on VON Radio. This is what he said:-

“Remember, those names are not going out into the general public until the 15th of next month. Its gonna be out there for about 9 to 10 days so that people can see whose names were being registered. If there objections raised against your name , the Registration Officer will have to send you a summons, uhm, he will have to try the case to ascertain whether the claim against you is right or wrong then that may take another couple of days so you will see it is going to take about a 2-month period. Whereby if you reconfirm, while you do not change your name, change your address or change you’re occupation, you will be confirmed immediately because there will be nothing to say that you would have done anything differently and so we advised that it is far better for you to reconfirm than to register anew because that is what is going to happen to all, that is what is happening to all persons who register for the first timer even though that they may not be aware. It is going to be that.

So even if there is an election in the period when you register and the time factor has not come up for your name to go out in the general public your name will not be on the register list of the Registered List of Voters. So we’re saying to you, while it is very simple, make use of it because it is a shorter period of time”.

In January 2010 at the time of the Federal Elections the 2nd Respondent again addressed the question of the reconfirmed voters. On 12th January on VON Radio he said:-

“Please be advised that wherever you were confirmed or registered there is where you are supposed to vote on polling day. Let me say this again. Please be advised that wherever you were confirmed or registered there is where you are suppose to vote on polling day. Kindly be advised that nobody is going to put you in prison for voting where you are registered, even if you have since moved to another location. Let me explain what I am referring to.

For many years I lived in Sandy Point up to 1993. In June of that same year I moved to Basseterre. In December of 1993 there was a General Election. Not because I was living in Basseterre at that time meant that I could vote in Basseterre. I had to drive back to Sandy Point in Order to vote thereby participating in the Elections and nobody lock me up and that is still the law. So do not let anyone mislead you that you cannot vote where you register because you have moved”.

On this occasion by drawing attention to his own experience, the 2nd Respondent who is the Supervisor of Elections made it plain that persons who were confirmed were entitled to vote in the constituency where they confirmed even if they no longer resided there. The Statement was open ended with no indication that the voters were open to objections in the normal way. His attempt in answer to Mr. Astaphan that he had implied that he went back to his registered address since there was no objection to his name there, I totally reject. The Statement was clear and unambiguous. “

The names of the persons who reconfirmed their registration appeared on the January 2010 list and they voted in the Federal Elections of that year. No doubt comforted in the accuracy of the statement by the Supervisor of Elections, the 2nd Respondent.

Those names also appeared on the January 2011 list but were removed before the publication of the July list. So it is no wonder that some persons who got late notices did not go into the Electoral Office or otherwise raised a hue… and cry about being objected to. The 2nd Respondent had assured them that they can vote where no longer reside. This experience reemphasizes the importance of publication of the Revised Monthly Lists and publication of a list of objections and steps should be taken to fulfill the legal obligation in that regard. It is troubling the relaxed way in which non compliance of the law is regarded. Non compliance has never been a method of repeal. I have read the decision of Belle J in Eugene Hamilton and Robert Charles and Joseph Edmeade- Claim No. SKBHCV 2009/0246-0256 and I agree entirely with his reasoning, but the question here is whether proper procedures were followed with respect to the objections process, not whether persons who had reconfirmed can be the subject of objection on the ground of residence or otherwise. (Pages 118 and 119 of Judgment)

12. “I accept her evidence that attended meetings in the capacity of a financial adviser and did so even when she was employed by the CCM Government. I also accept her evidence that she is a supporter of the NRP. I accept also that she was a polling agent on behalf of the 1st Respondent for the 2007 election and the circumstances under which performed in that capacity.

There is also no doubt that the vast number of objections adjudicated on by the 3rd Respondent, in her capacity a Registration Officer were lodged by the NRP.

The question, however, is whether the 3rd Respondent acted in a biased way against the CCM in the performance of her duties. Her support for the NRP cannot per se, be a basis for a finding of bias against her. Removal of names from the January 2011 list of voters was done under the watch of the Supervisor of Elections and the 3rd Respondent. In fact she was the official who held the objection hearings. The complaints against the 3rd Respondent centered around the issue of notices to the persons against whom objections were lodged and her determination in the absence of those persons.

What is clear to me is that the 3rd Respondent and her Supervisor, the Supervisor of Elections both held the view that once notices were sent out by Registered Mail and delivered to the Post Office, the job of the Registration Officer was complete. It seems to me that that understanding had been established as a policy position of the Electoral Office and that the main reason for choosing Registered Mail was that there would be no need to ensure delivery or receipt by the addressee as opposed to using the regular mailing service method where there must be evidence that it had been received by the addressee or some other available method.

It is unfortunate that the view prevailed and moreover where the law requires the notice to reach the addressee at least five days before the hearing. The 3rd Respondent was firm in the view that that meant that all she was required to do in such a case was to deliver the mail to the Post Office within five days of the hearing.

Even assuming there was a misunderstanding or wrong interpretation of the process of sending by registered mail, the statistics taken from records produced by the 3rd Respondent reveals that in the case of some (114) voters, notices were deposited at the Post Office just before, that is, less than 5 days before, on or after the dates of hearings. It would have been obvious persons who received notices in such circumstances could not have attended. However, the 3rd Respondent, notwithstanding, proceeded to hold hearings on the scheduled dates and made determinations thereat in the absence of the voters. It is difficult to comprehend that a person of the status and intelligence of Ms. Lawrence would proceed in that fashion. This was no accident nor negligence on the part of the 3rd Respondent. This was deliberate disenfranchisement. These decisions benefited the NRP of which the 3rd Respondent was a supporter and any reasonably well informed and fair minded observer would conclude that there was a real possibility that she acted with bias.

Whether or not Ms. Lawrence was actuated by bias, the result or her actions was the disenfranchisement of a number of voters and that in my view was crucial to the outcome of the election.

Similarly the allegations by the petitioner of bad faith and misfeasance do not take the matter much further except to identify the nature of the conduct of the 2nd and 3rd Respondents. The result was the same i.e. by their actions and inaction contrary to the regulations a contrary to the regulations a considerable number of voters were disenfranchised. (Page122 and 123)

13. “As I understand, his (Mr. Astaphan, SC) submission is saying that the process for removing a person’s name from the voting list is statutory in that it involves a hearing by the Registration Officer of an objection raised against the registration of an individual be it on the ground of residence or otherwise. Any person aggrieved with the decision of the Registration Officer has recourse to the Courts for redress. That is the only avenue in such circumstances. (Page 131)

The Petitioner as I understand him is not questioning Mr. Astaphan’s view of the law but is making a distinction. The Petitioner’s case is that a number of persons had been complaining that their names were being removed from the January 2011 Register without being allowed a hearing. All this was taking place behind closed doors. There was no publication of the Revised Voters Lists nor the list of objections or was there in some cases receipt of notices of objection from the Registration Officer. The majority of the persons affected it would appear were persons who had reconfirmed their registration during that exercise, hence the reference to them in the letter from Mr. Amory. If these persons were in fact removed from the list without being heard, then the decision of the Registration Officer was a nullity. In such circumstances it was open to the Electoral Commission under its constitutional mandate to direct the Chief Registration Office to put his house in order. Let us do the right thing as it were. Restore the List as it was at January 2011. This does not prevent objections being raised thereafter. They must now be considered with due process, allowing a right to be heard.

It seems to me that there is nothing improper in the Commission taking the step it took in these circumstances. The Supervisor’s refusal to correct what was clearly a wrong is evidence of a deliberate aim to subvert the rights of voters. He was therefore wrongly advised. (Page 131 & 132 of Judgment)

14. “Mr. Astaphan had questioned the lack of vigilance on the part of the Petitioner to take advantage of the opportunity provided by the regulations to inspect and take extract of the revised monthly lists and list of objections. He contended that had he done so he would have been made aware of changes to the list so that he could give notice to his constituents to take court action where appropriate. Instead of so doing he relied on the Commission to give instructions to the Supervisor of Elections. It is also open to any member of the public to inspect any document at the office of the Registration Office.

The Constitution gives the right to vote to every person who is registered in any constituency, unless that person is disqualified by Parliament from voting in any election.

The right is not given to the candidate and political parties to ensure that their constituents have the information necessary for the protection of that right. The law does not place an onus on the candidate and political party to inform their constituents of objections taken to their registration and other matters affecting them. Of course it is in the interest of candidates and political parties to be aware of anything that might affect constituents.

But Parliament has mandated the Registration Officer to publish list of objections, to notify voters of objections made against them and inform them of dates of hearing. The Chief Registration Officer must also publish Revised Monthly Lists so that voters can inform themselves of matters affecting their registration.

The Electoral officers took it upon themselves to restore two names to the lists after the persons affected had complained directly to the Registration Officer that their names had been improperly removed. There was no court ruling in those cases. Those two persons were allowed to vote in the July 11th election. This was a clear demonstration of the arbitrary nature in which the Electoral Officials carried out their functions.

It is the Electoral Officials to whom Parliament has given the mandate to publish important information for the benefit of voters.

It seems to me therefore that the duty of the Registration Officer to publish lists and send notices cannot be excused by pointing to the availability of the records at the Electoral Office. It is the voter who when he is wronged, has the right to take steps to protect his constitutional right to vote and this does not preclude the candidate from challenging the results on the basis of widespread irregularity of the elections. The constitutional right of a voter must be recognized, respected and protected. Electoral Officials cannot shift their responsibility to have the voter informed to the Post Office or indeed to candidates or political parties.

Candidates or political parties are not agents of the voters. The obligation of Electoral Officials towards voters is not satisfied by pointing to the access to information available to candidates and political parties or even the voters themselves who are not expected to go into electoral offices from time to time to see whether or not there are objections to their registration. The law will not impose on every elector the practically impossible and certainly arduous duty of eternally watching electoral lists in order to guard against official decision against them at peril of being disenfranchised vide Keane and Kirby (1920) 27 CLR449 (Pages 132 and 133 of Judgment)

15. “The Nevis Island Administration operates a nightly segment from 6:00p.m to 10:00p.m on Channel 8 of the Caribbean Cable Co. including a nightly news programme called “Nevis News Cast. No event by the Opposition CCM was ever given coverage. The Petitioner in his affidavit listed some thirty-two (32) events during the period June 22nd to July 10th 2011, all on behalf of the NRP that were carried on the News Cast.

This the Petitioner claims was in breach of his constitutional rights guaranteed under section 12 and 15 of the Constitution and may well have or probably would have been affected the outcome of the election.

I must confess that I had my reservations whether such a claim can be pursued in an election petition. In Frampton v Pinard Domit CV 2005/00149, Rawlins J. as he then was, endorsed the principle of freedom of expression being enforceable in an election petition.

The evidence of the former Permanent Secretary to the Premier under whose portfolio the Department of Information fell, is to the effect that the role of that department was to promote the information of Government. The News Cast presents the vision of the Government. It is a Government Information Service.

It was clear, therefore that the Information Service had no interest in the activities of the Opposition Party and failed to include them in its news reporting.

Judged on the basis of the statement of Rawlins J. as he then was in the Pinard Case, the State run News Casts of the ‘Government Information Service must exist for the use of all political parties and not limited to the activities of the ruling party alone.

In the premises, the Petitioner’s right to free expression and the freedom to campaign on equal terms and without reasonable restrictions were infringed. (Pages 134 and 135 of Judgment)

16. “I have already pointed out that there was reckless disregard by the Registration Officer of the importance of observing the rules of natural justice. The names of the voters who were removed from the list only occurred after hearings which were in breach of the rules. The dates on which notices were lodged at the Post Office as gleaned from the date stamped on the Posting Lists places blame for late deliver not on the Post Office but on the Registration Officer. A notice registered at the Post Office on a date after the date fixed for the hearing can under no circumstances be expected to reach the voter 5 days before the hearing. To point to a change of address by the voter as the contributing factor is a proposition too extreme to maintain.

Furthermore, to point to the conduct of the petitioner as I understand the submission, that he had contested elections in the past when there was as now no publication of list of objections and no publication of Revised Monthly Lists is to suggest that this somehow raises some type of estoppel or that non-compliance with election laws is common and accepted in Nevis has only to be stated to be rejected. (Page 140 of Judgment)

17. “It cannot be seriously disputed that a number of irregularities took place in the period leading up to the election so that the electorate did not have the opportunity of electing the candidate of their choice. Furthermore, the fact of a narrow margin is obviously irrelevant to the question whether an irregularity affected the result – vide Camnsell et al v. Rebecca et al 1987 NWTR 186 (NWTSC). (Page 142)

The irregularities can be listed as follows:-

(a) Failure to publish Revised Monthly List;

(b) Failure to publish the list of objectors;

(c) Failure to send notices to electors in time or at all hearings;

(d) Failure to observe the rules of natural justice in the determination of objections

(e) Failure to notify voters of the results of objection hearings;

(f) Omission from the list of eight voters against whom objection had failed.

18. “I hold that there had been non-compliance with the mandatory provisions of the law. I think the short answer to this petition is whether by the action and/or inaction of the Supervisor of Election and the Registration Officer so substantial a section of the electorate was disenfranchised. (Page 143)

Are the claims of bias, bad faith and misfeasance a relevant consideration? Assuming the 3rd Respondent had done all she had done in good faith, would not the resulting disenfranchisement of so substantial a number of voters inevitable affect the outcome of the election

Whether the 3rd Respondent acted in good faith or otherwise, the principle effect of her conduct was to produce this undesirable result. At the end of the day, the 2nd and 3rd Respondents had statutory duties which they either did not carry out or carried out in disregard of the fundamental obligation to protect and advance the right of the elector to vote. Should the result of the election stand in those circumstances? I think not.

It is clear to me and I am satisfied that a majority of the electors had been prevented from electing the candidate they preferred. The numbers speak for themselves. More than 200 voters were removed from the list and the margin of victory was 14. (Additionally 38 voters testified that had they been permitted to vote they would have voted for the petitioner. I have found that such evidence was admissible and that number alone was sufficient to exceed the margin of victory of the First Respondent. (Page 143 of Judgment)

19. “This case fits squarely into the category of case where there was a substantial departure from election procedures and I am satisfied that the breaches are serious. (Page 144 of Judgment)

20. “The petitioner has taken the unprecedented course to ask that costs be awarded against the Second and Third Respondent due to their conduct in the matter which he describes as egregious, inexplicable and reckless visitation of the law resulting in the disenfranchisement of hundreds of voters. While I share the view that the conduct of the 2nd and 3rd Respondents must be deprecated I do not wish to set a precedent in this case for the very reason why costs were not previously awarded. (Page 145 of Judgment)

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