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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Self-government

Montserrat 11

Having the Constitution give absolute and dictatorial powers to one man is the opposite of providing for good governance.  A read of the draft Constitution reveals an intention to give the Governor almost total power over the administration.  He is controlled only by secret and unaccountable instructions from the FCO.  This secrecy and lack of accountability are then multiplied by giving him associated discretionary powers. 

The result is an anti-democratic Constitution.  The system it sets up is not conducive to good governance.  It is the polar opposite of integrity, accountability and transparency.  In particular,

(a) The section 21 use of his discretionary and reserve powers is not subject to democratic accountability.  The draft Constitution should be amended to provide that, except where otherwise instructed by the Secretary of State, he ought first to consult the Cabinet and be subject to review by the High Court in the exercise of his discretionary and reserve powers;

(b) Integrity, accountability and transparency require that the section 26 power to dispose of Crown Land should be subject to a resolution of the Legislature;

(c) The section 28 power of pardon should be exercised on the advice of a Mercy Committee;

(d) The section 87 power to grant or withhold pensions, gratuities and allowances ought to be exercised on the advice of the Public Service Commission;

(e) The section 100 power to appoint the Auditor General is exercised after consultation with the Public Accounts Committee.  Greater accountability and transparency would be achieved if this were to be done after consultation with the Public Service Commission and the Integrity Commission;

(f) Extraordinarily for the twenty-first century, the Governor will retain the power to amend or to disallow a law passed by the Legislature without any reference back to the Legislature.  

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 7

We are proceeding to examine Kate Sullivan's Initial recommendations for Changes to Constitutional and Electoral Arrangements in the Turks and Caicos Islands.  We have in previous posts dealt in fourteen numbered paragraphs with some of my concerns at earlier portions of her Recommendations.  We now continue:

[15]      Recommendation 31 proposes to completely emasculate the Public Service Commission and give it a completely vacuous and useless role.  The TCI has at present one of the most advanced and democratic provisions in its Constitution for the governance of the public service.  A Commission of locals appointed by the Governor on the recommendation of various stake-holders makes the decisions about appointments and conditions of service of public servants.  The Governor is required to implement their recommendations.  That is as it should be. 

If the system in TCI is not working, of which there is no suggestion, then the members of the Commission need to be trained in their proper functioning, not have the country deprived of the institution. 

It is essential that the FCO recognise that its mandate is to develop and to improve the local institutions of self-government so as to help the people of the Overseas Territories to learn the proper rules of government and how to avoid cronyism, conflicts of interest, and nepotism. 

Putting appointments in the hands of an FCO functionary, advised behind the scenes by those cronies that he and his superiors select, is not an acceptable alternative.

To be continued …

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TCI 6

We continue to look at Kate Sullivan's initial recommendations for Changes to the Constitutional and Electoral Arrangements in the Turks and Caicos Islands.  We have previously dealt in thirteen numbered paragraphs with some of the first 25 Recommendations.

[14]      Recommendation 26 is headed in the wrong direction.  It proposes keeping the Governor's old colonial powers unilaterally to make a law for the TCI without that law having been passed by the House of Assembly.  It goes further and widens his power unilaterally to legislate for the islands “to ensure compliance with the Governance Principles.”  A more objectionable provision it would be difficult to imagine. 

There is no question of either the Governor or the FCO needing such a draconian provision in TCI or in any other of the BOTs.  In this day of instant communication the FCO is well informed about all proposals to introduce legislation in good time to make interventions to ensure that Britain's contingent liabilities are not put at risk. 

In the event that a Government should introduce a new legislative provision that has not passed through Cabinet and had the benefit of the Attorney-General's and the Governor's advice, there are ample powers to pressure the Government to revise the measure.  This was proved recently in Montserrat when the Assembly passed a legislator's pensions provision that was wildly in excess of the provision that had been approved by the Cabinet.  The government of the day was embarrassed into passing through the House of Assembly an amendment immediately thereafter to go back to the original approved provision. 

To remove the power of the legislators to legislate is to destroy democracy itself.  A constitutional framework such as the one proposed here has nothing of either democracy or good governance in it.

To be continued …

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TCI 2

We are looking at my preliminary views on Kate Sullivan’s Initial Recommendations for constitutional and electoral reform for the Turks & Caicos Islands.  I urge you to read them if you have not already done so.  It may not be long before they are being proposed for Anguilla.  That should concern all of us. 

Yesterday we looked in 5 numbered paragraphs at the historical documents that established the interest of the British Government and the governments and people of the British Overseas Territories in establishing the three principles of transparency, accountability and the rule of law in all of our Overseas Territories.  We now continue at paragraph six.

[6]        It is in the light of these three underlying principles that one reads what Ms Sullivan sets out as some of the features of the TCI Constitution that are not to be the subject of the current review.  She lists them as:

·                    That the executive authority – that is, the power to govern – is held by The Queen;

·                    That the Governor is appointed by The Queen on the advice of UK Ministers and that the Governor exercises the executive authority on behalf of The Queen;

·                    That the Queen retains the power to legislate for all matters of government in the Islands, including those that are the responsibility of elected ministers; and

·                    That certain responsibilities – defined in the current Constitution as the ‘special responsibilities’ – are retained by the Governor and are not subject to the control of elected TCI ministers, but are subject to Constitutional limitation in their exercise, including through the fundamental rights provisions;

·                    That the Governor will retain the power to legislate for some matters of government in the Islands, as long as these matters are specified in the Constitution.

[7]        One reads the above words with a mounting sense of concern and dismay.  Points 3 and 5 are particularly disturbing.  The Queen will retain the power to legislate for matters that are the responsibility of elected ministers?  And, the Governor will retain the power to legislate for some matters of government? 

One would have thought that by now the FCO legal advisers were aware that an undemocratic form of government is the opposite of good governance.  Bad governance has flourished in the Overseas Territories under the supervision and tutelage of the FCO.  When unelected officials have the power to legislate in place of elected members of a House of Assembly, that is no assurance of an improvement.  Local politicians may not have the highest integrity, morals or standards.  But, at least they are accountable to the electorate. 

Foreign officials are not accountable.  Some of them are incompetent and others do not have a care for the interests of the people they are supposed to help govern.  When power is transferred from the elected ministers to the Governor, we depend for good governance on the character of the man, not on an institution designed to guarantee democracy and good governance.  A strong and fair Governor may well do no harm and may do some good.  A weak and accommodating Governor is unlikely to make good use of his increased powers. 

The whole notion of replacing democracy by the arbitrary rule of one individual is offensive.

To be continued …

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TCI 1

Have you had a look at Kate Sullivan's Initial Recommendations for Changes to the Constitutional and Electoral Arrangements in the Turks & Caicos Islands?  I have, and I have sent the Editors of the TCI Journal my preliminary views.  It might be as well to re-publish them here, with such amendments as seem appropriate for Anguilla.  We do not know when similar proposals will be put forward for us.  It appears to me that unless I am very mistaken that will not be long in coming.  Constitutional and electoral reform in Anguilla is long overdue.  These then are some of my preliminary views:

[1]        The FCO has now published Ms Sullivan's initial recommendations for constitutional and electoral reform for TCI as a discussion paper.  I have reservations about some of her Recommendations that I would like to express.  She starts off her Recommendations by giving the following useful background:

Background to this review

1. In 2008 an independent Commission of Inquiry was set up to look into possible corruption or other serious dishonesty by elected members of the TCI legislature. The final report made over 60 recommendations covering systemic weaknesses; criminal sanctions; civil recovery; integrity in public life and the management of Crown Land. Some of the Commission’s recommendations focused on deterring or preventing corruption and other serious dishonesty while others looked at the broader constitutional and statutory framework of government.

2. In August 2009, United Kingdom (UK) Government Ministers instructed the Governor of TCI to bring into force an Order in Council suspending ministerial government and the House of Assembly. The UK Government also announced that during the period of suspension a review of the 2006 Constitution would be undertaken, as had been suggested in several of the Commission of Inquiry’s recommendations.

[2]        The relationship between Britain and the Overseas Territories is governed by a 1999 social contract.  This contract is titled Partnership for Progress and Prosperity.  It is an FCO Report and it commences with a foreword by Foreign Secretary, Robin Cook.  He sets out the three principles that underlie the partnership between Britain and the Overseas Territories.  He describes them as follows:

n       First, our partnership must be founded on self-determination. Our Overseas Territories are British for as long as they wish to remain British. Britain has willingly granted independence where it has been requested; and we will continue to do so where this is an option. It says a lot about the strength of our partnership that all the Overseas Territories want the constitutional link to continue. And Britain remains committed to those territories which choose to retain the British connection. 

n       Second, the partnership creates responsibilities on both sides. Britain is pledged to defend the Overseas Territories, to encourage their sustainable development and to look after their interests internationally. In return, Britain has the right to expect the highest standards of probity, law and order, good government and observance of Britain’s international commitments.

n       Third, the people of the Overseas Territories must exercise the greatest possible control over their own lives. We are proud that our Overseas Territories are beacons of democracy. We applaud their achievements, and want them to have the autonomy they need to continue to flourish.

[3]        The Foreign Secretary gave us to understand that the three underlying principles of our partnership are “self-determination”, “responsibilities”, and “the greatest possible control” over our own lives.  It is mutually agreed that we the Overseas Territories have a fundamental right to self-determination and control over our own lives while accepting our responsibilities for good governance.

[4]        The next major statement on the constitutional principles that underlie the relationship between Britain and the Overseas Territories occurred in the year 2006.  At the annual Overseas Territories and Countries conference the FCO issued a White Paper on Good Governance.  The first paragraph of this white paper explained what we mean by good governance:

1. Although it is a phrase that has gained currency in recent years, the concept of governance has been with us as long as there have been systems within societies which determine the process of decision making; and the process by which decisions are, or are not, implemented. Good governance is simply doing this well.

In ten short paragraphs the white paper sought to set out some of the issues we should look for in good governance.  It highlighted the need for the rule of law, transparency, accountability, the responsiveness of institutions, and effectiveness and efficiency in securing good governance. 

[5]        The reader takes away from this white paper the idea that good governance means doing the processes of decision making and implementation well.  That notion expressed in 2006 was an underlining and a reinforcement of the need for the rule of law, transparency, accountability and the rest of the principles set out in the 1999 Report.

To be continued …

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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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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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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