Constitutional and electoral reform is in the air again. I heard the Minister on the radio some days ago promising that we should see the roll-out of Government’s new draft proposals that it intends to urge on the UK Foreign Commonwealth and Development Office (FCDO), within the next month or two.
When Government publishes the promised draft Constitution, I shall study it carefully. Will it be a version of the constitutional abortion that the AUF Administration in 2019 presented to the FCDO team during the November negotiations? Or will it accord with the 2017 draft that the Constitutional and Electoral Reform Committee presented to the Government of Anguilla (GOA)? Or will it be based on the 2020 FCDO draft that they sent GOA shortly after the 2019 consultations but which Government concealed from us until early 2022? It can be found on the government website. It is based on our locally produced 2017 draft. I suggest that whatever Government proposes, it must be consistent with, if not identical to, the FCDO draft. I wonder why Governments like keeping us in the dark about these matters for so long!
I don’t blame you for not remembering what the previous Administration did in 2019 to ruin our 2017 proposals for constitutional reform. So much time and so many traumatic events have occurred since them, that the memory is hidden under psychological scar tissue. So, I’ll briefly remind you of the assault by the AUF administration on the original reform proposals. Those 2017 proposals (set out in a draft Constitution, Elections Act, and Electoral Boundaries Commission Act, emerged from extensive public discussions in person, on several radio stations, and in widely published newspaper articles and papers, between 2000 and 2017. The AUF administration presented to the FCDO in 2019 their changes to the 2017 proposals with no real attempt to explain their changes to us, far less to secure our agreement with them. These changes gutted the Committee’s 2017 reforms.
Electoral reform was part of the mandate of the 2000 David Carty Committee, the 2006 Commission, and the 2017 Committee. The resulting draft new Elections Act of 2017 was contained in the 2017 Report. The AUF Administration succeeded in 2019 in persuading the FCDO, in effect, to help them sabotage the most vital electoral reform proposals.
The first insult to the 2017 electoral reforms was to remove the provision for regulating campaign financing. The people wanted to bring an end to the old vote-buying system. Each party was to prepare and publish a budget showing where its campaign financing is coming from and how it will be spent. They will go to jail if they are found to have lied.
In some countries, campaign financing legislation prohibits a political party from soliciting funds from the public. Campaign financing laws limit each party’s spending only to the sum of money provided by government to each party. That way, all parties are financially on the same footing. You go to jail if you are found to have cheated. The AUF’s draft Constitution completely omitted any mention of campaign financing.
Another 2017 provision that was left out without explanation was for the regular revision of the Voters List. At present, there is continuous registration with no revision. Once you get on the List, you can practically never be removed. If you emigrate and remain away from Anguilla for forty years, you remain on the List. The List is never cleaned up. The Committee recommended it be revised every ten years after the usual decennial Census exercise. The people demanded it. They left it out.
Yet another provision that was omitted was to reform the Assembly by having thirteen elected seats instead of seven, to abolish the nominated members, and to remove the votes of the two ex-officio members. They merely got rid of the nominated members. The voters were supposed to be more fairly distributed among the constituencies as settled on by the Electoral Boundaries Commission, with nine more or less equal districts and four at-large seats. In 2019, the AUF and the FCDO changed this without warning or discussion with us. They imposed a rushed 2019 Amendment Constitution and an Elections Act that kept the same old unfairly populated seven constituencies, merely adding the four at large seats. They omitted to abolish the position of Parliamentary Secretary, or to remove the voting power of the ex officio members, or to revise the boundaries. They said it was too urgent to discuss.
This abortion of electoral reform missed the entire point of the exercise. If it was designed to keep the incumbent party in office, it failed. They lost the later 2020 elections.
Voters knew that the aim of the popular 2017 reform proposal was to ensure that Government would have six Ministers from the ranks of thirteen elected members of the Assembly. With the proposed thirteen voting members distributed between six ministers, Government backbenchers, and the opposition, the six Ministers would never outnumber backbenchers plus the opposition.
Under the previous system, with four Ministers, a Parliamentary Secretary, and two ex officio members, (seven out of nine) ExCo dominated the Assembly. The opposition hardly had a say in the deliberations. The 2019 change to five Ministers, a Parliamentary Secretary, and two voting ex officio members (eight out of thirteen) did not alter the balance of control in the Assembly. It was no reform at all.
Constitutional reform was the other part of the 2017 proposals to replace the 1982 Constitution. What the AUF did in 2019 to amend the 1982 Constitution, just days before the general elections, was to cut the heart out of them. And this without any explanation, save to assure us that the amendments were too “urgent” for further consultation.
What the FCDO did in 2019 in accepting the AUF’s betrayal of the 2017 constitutional and electoral reform proposals was to shore up ExCo’s domination of the Assembly. With now five Ministers, two ex officio members, and a retained Parliamentary Secretary, ExCo controlled more than half of the thirteen voting members of the Assembly.
An obvious omission made in the AUF’s 2019 Amendment Constitution was the Integrity Commission. This watchdog institution was the most vital of the proposals for ensuring integrity, transparency, and accountability in Government going forward. It may be obvious to us why the AUF omitted it without explanation, but we must insist it be put back in. The FCDO’s draft 2020 Constitution now before us for discussion does so.
The 2017 public finance constitutional reforms were strongly resisted by the previous Administration. In 2019, they circulated a paper claiming that these provisions were unnecessary as they were already present in existing laws. In fact, they sprang from a draft Anguilla Public Finance 2015 Order in Council circulated by the FCO in that year. This essentially proposed that Anguilla’s management of her public finances be turned over to a UK appointed official. He would be empowered to cancel all ExCo decisions and repeal laws passed by the Assembly if he did not approve of them. This caused an almighty stir in the community. The FCDO backed off.
By 2015, because the Government of Anguilla had for so many decades been living beyond its means, its finances were in a disastrous state. There were various statutes and Memoranda of Understanding with the FCDO that were designed to ensure that government spending was conducted in a regulated manner. We never followed any of these statutes or agreements. The FCDO must have been at its wits’ end. That is why they wanted to impose on us by a 2015 Order in Council the rules we were supposed to be following. To ensure the rules were followed, the control of our finances would be entirely placed in the hands of a UK administrator, superior even to the Governor.
What the 2017 Committee proposed was that we introduce the most important contents of the 2015 draft Order in Council into our Constitution. We would, of course, omit the unacceptable provision that a UK bureaucrat could reverse decisions of our Cabinet and laws passed by our Assembly.
The idea behind our 2017 proposal was that if we imposed these financial management rules on ourselves through our Constitution, there would be no need for the UK to take our finances away from us.
Further, by our taking the financial management rules out of the previous long-ignored statutes and rules, and placing them in our Constitution, we would give the rules increased force. Breach of them would be not only against a law but be unconstitutional.
It is essential that whatever our new Government proposes to the FCDO, it must be consistent with, if not identical to, the substance of the 2020 FCDO draft Constitution. This draft came out of the negotiations conducted with the AUF’s negotiating team in November 2019. Through this 2020 draft, the FCDO has redeemed itself from its earlier betrayal of us in 2019. It accepts nearly every one of our 2017 proposals. Only a few provisions remain to be resolved. These are clearly marked in the FCDO draft and should be the only issues remaining for discussion. None of them is particularly difficult. Stay tuned.
