Independence!

The airwaves and the local newspapers this past week have been filled with talk of the need for Anguilla to seek independence from the United Kingdom. Anguillians have always been the most independent-minded West Indians, so the discussion is a healthy one. From the earliest days of colonialism we have had to make do on our own. Why not now?

No metropolitan power ever ruled us directly, until after the British Invasion of 1969. Alone among the seventeenth and eighteenth century colonies of the Leeward Islands, Anguilla elected its own Governor who was then approved by the Governor in Chief in Antigua. In the other islands, the Lieutenant or Deputy Governor received a patent from the Monarch. Not the Anguillian Deputy Governor.

No expatriate colonial elite, unlike our richer neighbours, lorded it over us. Our flocks of goats and fishing boats during the colonial period were at our own disposal. We were, the truth be told, throughout most of our history, too beggarly-poor. It took a long time before we had our own formally appointed Executive Council. Our first ExCo was established after the 1976 Constitution. Not even after we acceeded to rule by St Kitts in 1825 was there any real interference in the activities of the local Vestry that had always run Anguilla's public affairs.

No British Governor sat in any government house in Anguilla until Charles Godden was appointed Anguilla's first Governor in the early 1980s. Whatever gains we have made socially and economically in recent decades, it has all been done right here in Anguilla.

Today, it is arguable that Anguillians are better off and more economically and socially independent than some of the so-called independent States in the region. Though we are a British Overseas Territory, once we follow the law and the regulations, the British leave us alone to conduct our affairs.

Why then the loud boasts that we raise all our own revenue, and that he who pays the piper should call the tune, and, in recent days, the call that British supervision should be ended? Why all the hysterical talk now from certain quarters of the need to seek political independence from Britain?

The answer is: smoke screens and camouflage. According to what we have been reading in the press and hearing on the radio, the British Foreign and Commonwealth Office seems to take the view that our governmental leaders have not been following any of the Constitution, the law, or the conventions of government in relation to borrowing. Their view appears to be that the new administration has ignored the rules, and gone off on a frolic of its own. The result has been an unfortunate division that has in recent days arisen between Government House and the local administration.

The British Minister for the Overseas Territories has been in Anguilla.  He has asked for an explanation of the Chief Minister's signing a letter, apparently not authorised by the Executive Council or by the House of Assembly. This 9 July letter authorised our Social Security Board to negotiate a US$200 million loan. The government of Anguilla by law guarantees all Social Security borrowing. Such a guarantee of a loan requires conformity with the Borrowing Guidelines agreed years ago between Anguilla and the Foreign and Commonwealth Office. Anguilla has exceeded its borrowing limits and is presently in breach of the Guidelines. The Minister is supposedly quite miffed at our irresponsible actions.  It is this incident that appears to have caused the UK Minister to question the actions of our government, and that has caused the resulting reaction by our leaders.

Whenever a country's leadership acts outside the law, when it has been shown to be self-destructing, when it becomes desperate to stir up a misguided following in its support, then the cry arises, “Let us join together against the foreigner in our midst. They are all traitors and will betray the nation! Out with the British!” A call for nationalism against “the other” is then seen as a unfiying force. The madness of it is that such ploys, obvious as they are, are so often successful. Then, confusion and chaos prevails over reason and common sense.  Every sensible Anguillian hopes that is not what is happening here.

The call to patriotism, to standing united against the brutal British, has all the ring of the revolutionary catch-phrase, “Liberté, egalité, fraternité!” And of Hitler's insane tirades against the Jews. Few thinking persons in Anguilla really believe that we are fighting against some reactionary evil foreign regime. Anguillians will forget Dr Johnson's warning, “Patriotism is the last refuge of a scoundrel” at our peril. Have no fear. Most of us realise that the call for independence is no more than false patriotism, a smoke-screen designed to hide defects in governance.

So, let me answer boldly, and with no concern for the inevitable labelling of being a neo-colonial lackey, and a running-dog of the imperial British. No, Anguilla is not ready for political independence. Yes, the people of Anguilla are independent-minded and normally we can run our own affairs. No, this is not a normal time. No, the call for independence being made now is not being made to advance our interests. Yes, it is more likely being made to hide the incompetence and wrong-doing of our politicians. And, I mean the politicians of all parties, past and present.

Anguilla will be ready for full internal self-government, and subsequently for independence, only after we have put in place the essential building blocks of democracy. We will be ready to hand our fates over to our local politicians, of whatever stripe or colour, when the British at last permit us to place in the Constitution the checks and balances and the watchdog institutions that will permit the people to hold those political leaders to account when they go astray. It isn't enough that the Constitution be amended in some hurried “reform”, and some legislation be cobbled up and passed without real discussion. These institutions must be working and functional. In my view, they must be proven to work for at least one full generation before we go independent if we are to be sure of our civil rights.

Until that has happened, we would prefer not to bare our necks to the sword of vindictiveness held above our heads by small-minded politicians who derive pleasure from lording it over us the ordinary people, knowing that we have little or no redress under our present system of government.

If we want to learn what victimisation really is, let us go independent like Antigua and Barbuda or St Kitts and Nevis did without a Constitution designed to protect the citizen against political and administrative abuse.

Until that time, when we have the institutions of democracy in place in our Constitution and in our law, we surrender what little protection being a British Overseas Territory affords us at our peril.

No, we are not receiving any grant in aid from the British government and taxpayer, and, yes, we raise all our own revenue ourselves. Yes, the piper calls the tune. But, no, we do not have to join the chorus when the song is out of key.

No, we are not yet at that much-to-be-desired point of being ready for political independence from the United Kingdom.

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Due diligence

 

Integrity

 

Self-government

Montserrat 10

The draft Montserrat Constitution does not entrench an Interests Commissioner.  Section 106 provides at best a hope that there will be a continuing Interests Commissioner and an effective Integrity in Public Life Act, after it comes into effect.  This is not satisfactory. 

The Constitution should entrench the office and make it clear that the provisions are to apply to all members of the Legislature, the Cabinet, Statutory Boards and Committees, and their immediate families.  The disclosures to be made by public officers should not be secret.  They should be public, and failures to obey the law should be subject to serious penalties. 

Integrity, accountability and transparency require this.

Montserrat 2

In my view it is shameful what the FCO are doing to the Montserratian people:  We are going to spend the next couple of posts looking at the new draft Constitution 2010 that the FCO is proposing to implement for Montserrat. 

I have come to the conclusion that the draft is bereft of any sign of an interest in good governance on the part of the FCO.  It is devoid of any of the principles of integrity, accountability or transparency, as I shall attempt to show.  These principles are routinely touted by the same FCO as the three pillars of good governance.  The draft Constitution of Montserrat has missed the opportunity to contribute to this movement.

The concentrating of power in the Governor’s hands, as proposed by this draft Constitution, tends towards arbitrary, one-man rule.  It may be true that a good governor is better than a bad local Cabinet.  We cannot be confident that our Governors will always be good.  Experience, especially in the case of Montserrat, teaches otherwise. 

A new Constitution should rather be trying to develop local democratic institutions that will involve the people in their own governance.  It is preferable that the Constitution should encourage responsible government in the Overseas Territory, rather than destroying it.  Responsible government is a better guarantee of democracy, justice, and fairness in government than one-man rule.  The draft Constitution provides for absolute power to be concentrated in one person, subject only to the oversight of the Secretary of State far away in London. 

In this respect the draft Constitution increases the deficit of democracy in Montserrat.

TCI 4

We continue to look at Kate Sullivan's initial recommendations for Changes to Constitutional and Electoral Arrangements in the Turks and Caicos Islands.  You can download and read them by clicking on the link above.  I continue at paragraph [12] of the paper I originally sent to the Editors of the TCI Journal:

[12]      Recommendation 8 was like a breath of fresh air.  It provides for local supervision of the political directorate, and is entirely commendable.  She is proposing that a minister can be removed from the ministry if the Integrity Commission finds that he or she has breached the Code of Conduct for persons in public life or that the minister has failed to comply with the registration of interests requirements on two separate occasions. 

This is exactly the sort of development that we should be looking for if we are to see local institutions taking control of good governance issues.

To be continued …

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Integrity Law

Members Interests

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Code of Conduct

Fresh Air

Publicising the work of the Executive Council:  The historical lack of transparency in the government of Anguilla is not so much a constitutional flaw, but a public relations disaster.  There is no organized and systematic disclosure to the public by any government press officer of the work of government, particularly of the Executive Council.   

        Sporadically, the Governor discloses some development that is of interest to him.  Very occasionally, the Chief Minister drops a hint or remark about the workings of government.  All the rest of the workings of the government of Anguilla is left to the rumour mill.  Only when there is a crisis or an emergency in government is any effort made to give out information.  That information is usually biased in the direction desired by the person delivering it.

We will all remember the recent history of government press conferences.  Chief Minister Hubert Hughes started them during his administration in about the year 1988.  None had existed previously.  They came to an end with the advent of Chief Minister Osborne Fleming’s administration in the year 1990.  No doubt Mr Fleming felt that such press conferences had become discredited because of the abrasive and destructive way in which they had been conducted. 

Mr Fleming resumed holding Chief Minister’s press conferences in about the year 2007.  It did not take long, however, for Mr Fleming’s press conferences to descend into pure politicking.  The weekly Chief Minister’s press conferences provided some public entertainment until the end of the administration in early 2010.  While they were not as abusive and destructive as they had been under the previous administration, they were widely recognized as being purely political.  No useful information on the workings of government or the decisions of Executive Council was ever released at these press conferences.  Now that he has taken over the administration, Chief Minister Hubert Hughes has resumed giving his weekly press conference in his own inimitable style.

These press conferences are not what are needed in Anguilla.  Besides providing entertainment, they serve a political purpose.  But the people are entitled to be informed about the workings of their government.  We need to have a regular weekly release of information on the major decisions of the Executive Council and on the steps the administration is taking to implement government policy.  It is high time for us to begin insisting that Ministers must expose the workings of their Ministries and Departments to the people. 

Frequently, Ministers go for years without reporting to the House of Assembly on the workings of their Ministries and Departments.  If no member of the Legislature complains, who can blame the Minister for keeping quiet about what he and his Ministries are doing? 

All of us in Anguilla remember the low opinion we held of what was then perceived as a secretive, remote and probably abusive police force up until 2007.  That was the year that Police Commissioner Keithley Benjamin introduced the weekly police press conference.  The result of this opening up to the press and public has been nothing less than an astounding turn-around in the public’s attitude to the regular requests of the police for cooperation from the public.  It is incomprehensible to me that this refreshing transparency has not been transferred to the work of the Executive Council. 

We should insist that the Executive Council meetings are opened up to the public whenever possible.  Is it only the “white” Overseas Territories of the Falkland Islands and Gibraltar that have the self-confidence to hold a press-conference immediately after every cabinet meeting to inform the public and publicise what decisions have been made in the public interest?

To summarise then, the solution to the perceived lack of integrity, accountability and transparency in our small-island territories of the West Indies is largely due to deficiencies in our Westminster Model Constitutions.  These Constitutions typically provide for the forms of government, but do nothing to establish mechanisms that ensure checks and balances on abuse of power.  The solution is to insert into our Constitutions, whenever we get the chance, the proven mechanisms that have been developed in other parts of the world that will ensure that best practices are followed.

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Hush-hush

Other committees and commissions:  The 1982 Constitution of Anguilla contains provisions that offend against transparency.  In particular it provides for the arbitrary and one-man execution of some of the processes that in a democratic country should be handled by independent local institutions. 

Let us take the absence of a Mercy Committee as an example.  At present section 76 gives the Secretary of State acting through the Governor the sole power to grant a pardon, either free or subject to conditions, to a convicted person.  Anguilla is not unique in this respect.  In most of our territories, the Governor has the Constitutional power to function without any local Mercy Committee to advise him on what to do.  Whenever the prerogative of mercy is exercised in the fashion prescribed by the Constitution, legitimate doubts will arise as to its propriety.  The question will be asked, what does a foreign politician or diplomat know about who in our prisons should have his sentence shortened or commuted?  The suspicion will be that he has relied on the advice of some unknown advisers lurking in the darkness around him.  The result is that no sensible Governor is likely ever take the risk of exercising the power, even in the clearest of situations.  It is either that or be prepared to face personal doubts and attacks over his motives if he ever does exercise it.  This is a most unsatisfactory state of affairs. 

The absence of a Boundaries Commission to ensure transparency in the placing of electoral boundaries to the various political constituencies is another vexed issue.  In some of our islands there has been no Boundaries Commission appointed for centuries.  As demographics have shifted, some of our electoral districts have become a small fraction of the size of others.  Good government demands that our people have more or less equal representation in the House. 

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Mercy Committee

Electoral Boundaries

Service Commissions

Service Commissions:  The second guarantee of transparency in the government of a British Overseas Territory (BOT) is the existence of constitutionally guaranteed, independent, Service Commissions.  In the smaller BOTs of the West Indies, all appointments to the public service, the teaching service, and the police service, are by our Constitutional provisions in the hands of one person.  That is the Governor.  He delegates this responsibility to a local Deputy Governor.  Both of them carry out their responsibilities with no accountability to anyone.  In a properly regulated, democratic BOT the Governor or Deputy Governor would be required to act on the advice of the Service Commissions.

The reason for that constitutional development is obvious.  A Governor whose powers of appointment to the public service is unrestrained will of necessity have to rely on his cronies and advisers.  He will have no personal knowledge of the individuals and characters whose public service come up before him for a ruling.  His local deputy will be related to half the local population and have grown up with most of the others.  Under such a system, no matter how well-intentioned, the public will not accept that there is transparency and fairness in public service appointments.  This is a classic case of government by man rather than by law. Such appointments and related matters should instead be constitutionally placed in the hands of a local, professional, and independent Public Service Commission, governed by appropriate laws and regulations.

It is unfortunate that the corrupt and perverse regime that has been permitted by the Foreign and Commonwealth Office (FCO) to run our sister BOT of the Turks and Caicos Islands (TCI) has given Kate Sullivan, the FCO legal adviser, the opportunity to recommend, in her recently-released draft recommendations, clawing back from that unfortunate BOT some of the elements of self-government that had only recently been granted, and repositioning them in the hands of either the Governor or the Secretary of State.  No doubt, that reactionary step is well-deserved in the TCI.  God knows they have blotted their own copy-book often and badly enough. 

We can only hope that in the more sensible, better-regulated territories of Bermuda, Cayman Islands, Virgin Islands, Anguilla and Montserrat, no such retrograde step is contemplated.  Such an undeserved development would be an outrage of unacceptable proportions.

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FOI

Freedom of Information Acts:  Over the past several posts we have been considering the ways that our governments can demonstrate transparency.  An essential tool in this endeavour is the Freedom of Information Act. 

Among the smaller territories of the West Indies, Cayman Islands alone have put in place a law that enables any citizen to demand copies of almost any government document that would previously have remained secret.  Every citizen is entitled to know what documents relating to him and his affairs government is collecting and filing. 

There is no surer mechanism for guaranteeing transparency than a Freedom of Information Act and the various regulations that make it work.  It is long overdue in Anguilla.  Here, it is nearly impossible to obtain any information on the programmes or activities of any department of Anguilla.  Most government activity in Anguilla is a state secret. 

It is long overdue that we bring that abortion of a system of government to an end.

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Guest Editorial 5     

Transparency

Transparency.  The third general heading under which the issue of accountability and transparency in government is usually considered comes under the rubric, or heading, of "Transparency".

Contrary to public opinion, most politicians are not engaged in making back-room deals and accepting under-the-table packages.  It is the lack of transparency in our systems of government that causes so many of their actions to be wrongfully categorised as corrupt. 

       If only the people could be confident that what politicians were doing was in their best interest, there would be less suspicion and accusations.  The obvious solution is to institute systems that increase transparency.  What are some of them?  We shall examine (a) the Freedom of Information Act; (b) the Service Commissions; (c) other Committees and Commissions; and (d) publicising the work of the Executive Council.

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Public Accounts

Public Accounts Committee (PAC):  We are considering the lack of accountability and transparency in the government of Anguilla.  We are looking at the three essential headings of integrity, accountability and transparency.  We have finished with integrity, and now we are dealing with accountability.  We have in the last post dealt with the first essential instrument for guaranteeing accountability, the Ombudsman.  The second essential institution is a functioning Public Accounts Committee (PAC) of the House of Assembly. 

The PAC is perhaps the most effective mechanism designed by our Constitutions to enable Members of the Legislature to question and investigate the manner in which public officers have spent the monies voted by the Legislature.  Yet, we do not use it.  In most of our territories no PAC has ever been appointed, far less functioned as it should. 

We all know the reasons for this relaxed state of affairs.  Those presently in government have no interest in setting up a tribunal that will expose the wrongdoings that they may have been engaged in.  Those who are in opposition now have no desire to erect walls and boundaries that will limit their ability, when their turn comes to take power, to misuse public funds.  Similarly, the British Governor wants to keep everyone as quiet and as calm as possible, so that he can go back to London at the end of his term to receive his pats on the back and other accolades.  He has no interest in ruining his reputation by having an effective PAC reviewing unauthorised expenditures made by his Executive Council and public service.  None of the institutions of government in Anguilla have any interest in making sure that the PAC functions.

It is time for our legislatures to appoint and to work the Public Accounts Committees in the way that they are intended to work.

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Accountability

Accountability.  We are looking at the problem of the lack of accountability and transparency in the government of Anguilla.  We have been doing so under the three general headings of (1) Integrity; (2) Accountability; and (3) Transparency.  We have dealt in some detail in the past several posts with the issues that arise in looking for the first element, integrity.  Next we look at the second general area, the vexed question of the lack of accountability in our public administration in Anguilla.

The insecure and the deceitful among our public servants are equally afraid of accountability.  To be accountable means that we must one day explain to someone what we did and why we did it.  A weak or corrupt public servant cannot perform that duty comfortably.  Secrecy is his preferred environment.

By contrast, the self-confident and the honest among us welcome accountability.  For one thing, mechanisms and techniques for guaranteeing accountability give us the tools to demonstrate our honesty, effectiveness and integrity.  Systems for demonstrating accountability permit us to show our honesty and efficiency, compared to the run-of-the-mill.

Some of the most effective measures that can exist in this area include: (a) the Complaints Commissioner; and (b) a functioning Public Accounts Committee.

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Codes of Ethics

Codes of Ethics:  The fifth and final instrument that we would look for, to determine whether a British Overseas Territory respected the notion of integrity in the public service, is a Code of Ethics for Ministers. 

I have no doubt that no one in public life in Anguilla sets out to be corrupt.  We get that way in the end, usually because of the pressures and strains put on us, and the lack of any coaching or training in performing our duties according to recognised codes of ethics. 

When, at the request of one of our constituents, we telephone the Sergeant at the Police Station to give a chance to a young person who has been arrested, no doubt we think we are responding to the needs of our community.  When we give work permits to one contractor, but not to another, we say we are “leveling the playing field”.  When we overrule a Chief Immigration Officer or a Planning Committee order, we say we are “showing a good heart” and softening the harsh decisions of unfeeling bureaucrats.  But, it is quite the opposite.  We are showing partiality and preference for one person above another, and corrupting the system set up by law.

Our problem is that we have never seriously studied what is the meaning of nepotism, croneyism, and conflicts of interest.  We need to debate, discuss, and adopt Codes of Ethics at all levels of government.  The Judges and Lawyers have codes of ethics.  Why not public servants and politicians?

In a democratic, transparent, and accountable system of government, it is for politicians to lay down the national policy.  Then, the politicians must learn to leave it up to an independent, professional public service to carry out their policy. 

It is the duty of the public officer to apply government's policies fairly and impartially.  In appropriate cases there will be the power of appeal to an independent tribunal, but never to a politician.  There is no integrity in a system that permits a personal appeal to a Minister to overrule the decision of a Board or public officers which is carrying out the national policy.  To have it otherwise means that the law and policies of our countries are not applied evenly and fairly to all citizens.  If a politician intervenes to overrule the action taken by a public officer, such intervention is almost invariably a corruption of the system.  The result is a loss of public faith in our public institutions, and a breakdown of law and order.  Victimisation and discrimination is the inevitable result of ministerial intervention on behalf of one individual.  And, indeed, that is the system of government that most of us labour under.

I do not accept that our islands are too small for us to expect the standards that exist in the outside world to survive and work here.  No matter how small we are, we are entitled to expect that our governments will be of laws and not of men.

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Ethics and Integrity

Appointments

Appointments Commission:  Following on from the last few posts, the fourth feature we would expect to find in a system of government that boasts integrity in the public service is an Appointments’ Commission.  Such a Commission would vet political appointments to boards and committees.  It would be protected by the Constitution and by legislation and would be independent of political interference.

At present in our territories we have a “winner takes all” system of appointments to boards, committees and commissions.  Immediately a new government is elected, their first order of business is to share out the various directorships among the principal supporters of the new ministers.  We watch them, at every change of administration, as they dismantle the Social Security Board, the Public Utilities Board, the Public Health Board, the Tourist Board, the Carnival Committee, even the Poor Law Board.  We say they are “enjoying the fruits of office”.  This makes a mockery of the whole notion of good governance.  The public generally accepts this process as a normal state of affairs, but they sneer under their breath at all politicians. 

This unregulated system has got to be stopped.  Why can we not take a leaf out of the British book and have all appointments vetted by an independent, constitutionally protected body, to ensure that Ministers appoint only qualified persons to these positions?  If the objection is cost, we can combine these duties with those of the Ombudsman or someone similar.

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Inquiry Coming

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Special Assistants 12   

Crown Lands

Crown Lands:  Following on from the last couple of posts, the third point in our check list that we would search for in determining whether there is likely to be integrity in the public service, is a transparent procedure for dealing in public lands. 

In Anguilla, as in many of the British Overseas Territories in the West Indies, Crown Lands are dealt with in the Governor's sole discretion.  In practice, this means that the Governor relies on the advice of Cabinet or the Executive Council, and there is no accountability to the Legislative Assembly.  The integrity of dealings in public lands ought to be enforced by having any resolution to deal in any significant area of public land, which in a small territory may be as little as a half acre, brought to the House of Assembly for public debate.

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Crown Land

 

Interests

The Interests Commissioner:  Following on from the previous post, the first institution we would look for in a country’s system of government, to give us some indication that integrity in public service is taken seriously, is a functioning and strictly enforced Integrity Act.  This is the law that in well-regulated countries requires public officers, that is, civil servants, politicians and directors of statutory boards, to publicly declare their assets and liabilities.  In Anguilla, as in most of the British Overseas Territories, there is no such law. 

We need to have laws and regulations, backed with sharp teeth, put in place.  In the absence of such a law, members of the public are entitled to suspect that politicians and civil servants retire much richer than when they went into the service.  And, we are entitled to believe that they have come by those riches in an unethical and criminal way.

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