Senior Counsel Mendes Brings It home!

January 25, 2012

After a day’s break, court resumed on the Election Petition Trial brought to the High Court by Mark Brantley challenging the results of St. John in the July 11^th, 2011 Nevis Island Administration elections. This trial has become the sole focus of the citizens and residents of Nevis; because it will literally determine the fortunes of the Nation for a generation. Today saw the Petition giving its oral summations. Testimony had ended with the Registration Officer on Monday. Senior Counsel Douglas Mendes presented for the Petitioner.

Mendes began by laying before the Court that Statute Law must be interpreted to confirm with Constitutional Rights; and that any such Law must be disregarded if it does not concur with the Constitution. He referred to a case in South Africa where it was argued and established that the vote of every citizen has value and dignity. Further, that any law dealing with the right to vote must lean toward enfranchisement, rather than disenfranchisement. He laid out further that the Constitution of St. Kitts and Nevis provided that the High Court shall offer redress and have jurisdiction over the validity of the election of Representatives. And that the National Assembly Act provides that a petition may be brought to the High Court. Also that the Privy Council ruled that it doesn’t matter how the Court is moved, so long as the Court is moved. Thereby, S.C. Mendes established that the Petitioner was not only in the right church, but also in the right pew.

With regard to the non-allowance of the CCM on NTV in the weeks and months leading up to the election, Mendes referred to a case in Sri Lanka where it was established that the State media must not be used to preserve the party in power. With regard to the situation in Nevis he said that the evidence is clear and accepted by all. P.S. Angelica Elliott confirms the policy of covering the campaign of the NRP to the exclusion of the Opposition (CCM). He argued that everyone should have access to State assets; and that one should not have to ask for the news to be covered. He argued further that because NNC is the only local televised news service, it must have had some impact on the identifiable portion of the populace who use this as their only source of news. And that in the context of a margin of victory declared at 14 votes, it may have been reduced or reversed if the CCM had been given access to NNC. He stated that these were two instances that involved the Premier because he advises the Governor General on when the elections be called; and also because he presides over the Ministry that is responsible for NNC and it’s policies. He pointed out to His Lordship that the Premier has not come to give any evidence, so the Judge can make what inferences he might.

With regard to proper registration, S.C. Mendes read from the Statute to establish that, overseas voters can register in the Constituency;

• Where they lived
• Where their mother lives or lived
• Where their father lives or lived

He stated that this impacted on the delivery of notices as sending notices to these addresses would be futile. He offered that this placed a premium on the publication on the publishing of the list of objection so that persons may know that their name has been objected to. Also, that the list of removed voters must also be published so that person will not waste time and resources coming to Nevis for an election in which they cannot vote. Mendes put before the Court that the Supervisor of Elections, having encouraged persons to reconfirm rather than re-register, that persons can only be removed by process of Law. That Law however must be interpreted to promote enfranchisement, rather than disenfranchisement.

He referred to testimony of Mr. King, giving evidence on behalf of Leroy Benjamin in a 2004 Petition. Evidence given on behalf of the current Supervisor of Elections states that a list is published in January; objections are received and hearings heard; a revised list is published in March. Revised monthly lists are produced and published. Deleted names are also published and sent to identifiable/potential candidates if a writ of election has been issued. This is done so that persons aggrieved can approach the Court for redress.

“For some reason”, Mr. Mendes told the Court, “this whole system collapsed in 2011”.

S.C. Mendes went on to contend that the list used in the election of July 11, 2011 is not the list that should have been used. Section 48 of the Regulations provides that is should be the Revised January List plus the revised monthly lists up to the last published. Evidence from Leroy Benjamin established that no revised monthly lists were prepared or published in 2011 before the election. That something was printed off for the purposes of answering the subpoena; and that he himself (Benjamin) was seeing for the first time.

He argued that if there is no B (Revised Monthly List), then there is only A (January List); and that “we know that 203 from the January list were excluded from the election”.

Benjamin had argued that the last revised monthly list would have been April as the election writ would have been issued on June 22^nd, so no one could be added after. Mendes put to the Court that by the same procedure, because no list of objections had been issued by that time (or anytime for that matter), those 203 persons removed in St. John should have been included on the final voters list. Further, that because no revised monthly list had been published or been compiled, the voters list for the July 11, 2011 elections should have been the January 2011 list. Mendes pleaded the Court: “People cannot be disenfranchised because of the incompetence of the Electoral Officers”.

Tackling the issue of the Notices of Objection, Mendes advised the Court that the law states that the issuance of those notices should be immediate. However the evidence showed that the objections, thought collected on Feb 10^th; were not stamped until March; and not sent until April. He argued further, that the large batch that was completed on April 21, 2011 showed that it could be done. That the registration Officer has staff on which she could rely. All she had to do was sign.

To the argument that this was only a part time job on the part of the Registration Officer, Mendes said emphatically that this was not the objectees’ business. He told the Court that the State must organize itself that the Regulations can be complied with; and the Regulation state that the objection notices must be completed by the end of the next month.

To the argument by the Registration Officer Mrs. Bernadette Lawrence that her only obligation was to take the notices to the Post Office, Mendes quoted the Regulations which stated that the Notices must be sent in writing (hand delivered) or by registered post. He went on to establish that according to the Post Office procedures, a mail is not ‘registered” when dropped off at the Post Office; but when it is written up. And the posting list, stamped by the Post office showed, (and admitted to by Mrs. Lawrence), that notices for 114 persons were registered on the 27^th and 28^th April and 4^th May for a hearing on April 29^th, 2011. These persons could not have possibly received the notice of objection by the hearing date or in the 5 days required by law.

He moved the Court that if there is no evidence of receipt, one (the Registration Officer) has not complied with (her) obligations.  Further, that Mrs. Lawrence acted in bad faith, proceeding with the hearing knowing that the notices had not been received by those objected to.

Mendes then moved on to the process of removal of names from the voters list and cited the following violations by Mrs. Bernadette Lawrence, et al:

• Failure to publish the list of objections
• Failure to send out notices of objections immediately
• Failure to send notices in time, or at all
• Failure to serve notice, and
• Failure to publish revised monthly list

S.C. Mendes maintained that these violations were clear, established and egregious. He referred at this point of a ruling of Justice Mario Michel, ruling that the process was not complied with, as due process was not given; despite a hearing and a decision, because the notices were late.

Mendes maintained that it cannot be the case to disregard the procedures set out by Parliament, and the decisions made in the disregarding of those procedures be allowed to stand.

The Respondents argue that even if it is all as stated by the Petitioner it should be of no consequence. The Petitioner should have moved the Court before the election. Mendes pointed out however that had the revised lists been published as required by law, persons would have known that their names were off the list, and would have had those remedies. This was not the case. Names removed were discovered by default; the Petitioner having to manually go through the list issued on July 2^nd and contrast with what was there before.

To prove bias on the part of the Registration Officer, S.C. Mendes reminded the Court that on cross Mrs. Bernadette Lawrence –

• Admitted being an advisor to the NRP
• Being a polling agent for Hon. Hensley Daniel
• Attending an NRP Executive meeting in September of 2007 and being appointed to her position on October 2007, (a month later)
• Being a supporter of the NRP

Also that

• Mrs. Lawrence demonstrated her hostility to Hon. Mark Brantley and the CCM
• She did not demonstrate her capability to be impartial
• Mrs. Lawrence prepared a list of objections but does not publish it
• That there was proven deliberation between Mrs. Lawrence and Leroy Benjamin
• That the objection letter were known by Mrs. Lawrence not to be received but she did nothing, and
• Mrs. Lawrence held hearing knowing that the objection notices could not have been received in time, or as prescribed by law

Mendes concluded:

“This is not a simple matter! You are dealing with people’s right to vote! You are dealing with people’s right to determine the direction of their country! You are dealing with people’s human rights and dignity! This is malfeasance in public office!!

Might if have made a difference? We know that 203 were taken off. The margin of declared victory was 14. Me Lord, there were persons who received no notice. There were persons who received notices late. If you add them up Me Lord, it is more than 14. But you don’t have to speculate, because those who gave evidence stated that they went to the polls; they were denied the right to vote. Had they been allowed to vote, they would have voted for Mark Brantley. It is more than 14.

Nalina Singh. The woman who was supposed to be deceased came on her own to give evidence. When asked by Mr. Astaphan who she would have voted for, she said Mr. Brantley. That is one more.

Election is more than the day of voting. It is all the events and procedures leading up to polling day. If you remove someone’s name from the list, you have to tell them. And the Regulations say so! Decisions should be made public and inform the candidates.  Mr. Benjamin doggedly refused to perform his duties, and as such deprived them of their redress (the Court)!”

Mendes then asked the Court, in light of all evidence presented, to nullify the elections in St. John. Court adjourned at this point. Mendes and Brantley again exited the courthouse to applause and cheers.

Tomorrow at 9:00 am it is expected that Mr. Anthony Astaphan, Lead Attorney for the Respondents will make his oral summations.

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