Commentary by Larry Olonzo Denville Vaughan
The House met today (Friday, April 17) to extend the period of emergency powers. Upon the required vote of no less than ten members of the House, the resolution to extend the proclaimed emergency period would have been voted on but the country would not know the definite period of the extension.
When it was announced by Prime Minister Harris, some days before, that the parliament was going to be summoned in an emergency session with the expressed purpose of extending the period of emergency, a number of citizens found it suspect that he did not announce to the country the period of extension being sought. This was a first sign that there was an attempt to be less than transparent with process of seeking the extension.
It is further concerning that the government did not seek any dialogue with all parties ahead of the sitting. No one outside of those on the government benches was consulted as a sign that this effort for the fight against COVID-19 demanded the inclusion of all parties. However, on Friday, April 17, all members were expected to turn up and vote for the resolution, even if it is fatally flawed.
That is why I am most disappointed with the submission of the elected member for Nevis #9 as he waxed eloquently, speaking drivel. He insisted so much that all members should have come to the House, hold hands, vote “Aye” on the resolution and then sing Kumbaya. It had not crossed his mind that in times of national emergency, in times when Saint Kitts and Nevis faces challenges it has never met before, it is time to include all its citizens and their representatives in the consultative process that leads to better decisions.
As such I want only to address two aspects of today’s sitting and pray that our people understand that we are met with perilous times and sadly, we lack the form of leadership that readily embraces all of our citizens in the march towards progress and freedom. These two issues are the unconstitutionality of the resolution and the error of the attorney general in statements made during his presentation on the Resolution.
One is satisfied that the resolution has been presented in keeping with the provisions of Section 19 (3), (7) and (8) of the Constitution Order of Saint Christopher and Nevis. Specifically, in subsection 7 of the said section, extensions are allowed for a period not exceeding 12 months or if shorter, for a specified period as stated in the resolution[i]. Therefore, for such a resolution to meet the legal procedure laid out in the Constitution, it may be for twelve months or if shorter, specified in the resolution.
However, the resolution originally put before the House states “NOW THERFORE, be it resolved by this National Assembly that it is necessary to extend the State of Emergency up to a period of twelve months or such shorter period as may be specified to take effect from the 17th day of April, 2020 to combat the threat of the COVID-19 virus to the Federation of Saint Christopher and Nevis.” As a result of a poor job of cut and paste, the Parliament of Saint Kitts and Nevis was asked to vote on a resolution which has no specific length of time for the extension. At the close of the session, the resolution was edited to say “extend the State of Emergency up to a period of six months or such shorter period as may be specified.[ii]”
Careful reading of the constitution shows that that resolution can be extended but each extension should be specific. The wording of the resolution does not specify that it shall be valid for any stated time. The wording ought to have been “extend the State of Emergency to a period of six months.” It is sad that before this change was made, the very same opposition who said that twelve months was unconscionable was vehemently castigated as not wanting to lend its support in the fight against COVID-19. They each repeatedly pointed to this flaw in the resolution and the government again refused to fully embrace the pleadings of the opposition for right and common-sense to prevail. The resolution needed to be corrected, even if it specified that it would valid for twelve months. The use of an alternative time neutralises the provision and renders it of no legal effect.
For the sake of correctly fighting the COVID-19 virus, the extension made to the proclamation by the resolution needs to be correctly presented in the eyes of the law. And hence by its language, the resolution if stated correctly would be valid until September 27th 2020, which extends the resolution first made on March 27th, 2020 “to a period of six months” and would not extend the resolution by six months.
It is sad the Hon. Vincent Byron, the Attorney General of the Federation, rose to confirm that he is unlearnt in the law and that a law degree is insufficient a requirement to hold the post of chief legal advisor to the government. Senator Byron, in his quest to insist that the provision of the flawed resolution is for twelve months, remarked that the fears of the members opposite are unfounded as the Governor General has the right to pass a proclamation and bring the resolution to an end any day. He sought to base this statement on Section 19 (5) of the Constitution Order of Saint Kitts and Nevis [iii].
I would want to advise the Attorney General that I have never pursued studies in the law, but I was a most careful student of English. The governor general’s power in Section 19 (5) of the constitution quashes a declaration of emergency which he or she would have made in Section 19 (3) and (4) only. It does not give him power to revoke a resolution of the House. Only the House can return, under Section 19 (8) and reverse or extend the resolution by the prescribed votes [iv]. As such, unless the specified, unnamed period of the resolution has expired, only the House can revoke, repeal or extend the provisions of a resolution.
Thus, the opposition was correct in saying that the Resolution gives powers to a government to fight not only COVID-19 but its own citizens during the unprecedented times. The government now controls the media in an unfettered way ahead of pending elections. While the citizens are locked in their homes, Team UNITY activists, under the cover of state employees, have free reins to do as they please. They can cut the internet access to opposition online broadcasts without detection or reprisal, all in the name of fighting COVID-19. They can tell Labour Party supporters that any care package distribution must be sanctioned by the Emergency Committee of Government employees, while Team UNITY activists take cooked meals to citizens during lockdown with no regulatory controls to ensure that the meals were prepared in hygienic conditions.
There was never a doubt that the Federal House will dissolve on May 14, 2020; if not dissolved sooner and elections shall be held 90 days after any dissolution. There was never any doubt that the Team UNITY administration searched high and low to find ways to extend the life of the Parliament including studying legislations out of Lebanon. However, there is more than speculation and intuition that satisfies the understanding of right-thinking citizens that Team UNITY is seeking an advantage of this COVID-19 situation to garner sympathy support.
They know that they have failed us as a people for five years and more. They know that have been enemies of transparency and integrity. They know that they have not fulfilled over 120 promises in their 2015 manifesto. They know that each minister and candidate is embroiled in scandal after scandal. They know that they have used high office to dilute the votes of our nationals by ensuring that expedited access to citizenship has been granted to foreign nationals in contravention of Section 92 (3)[v]which declares that no non-national becomes a citizen unless he or she swears to the Oath of Allegiance[vi].
Today’s sitting was a naked attempt of playing partisan politics with our health and our good nature by the government of the land. The provisions of the resolution voted on by the House today still needs to be fixed. The Opposition was correct to withhold its support from a resolution which the use of common sense would have made right. Until the language is corrected that resolution is open for challenge as it lacks the specificity of time as demanded in the Constitution. We need to get serious with the nation’s business.
[i] Section 19 (7) of the Constitution Order of Saint Kitts and Nevis – A resolution of the National Assembly or the Nevis Island Assembly passed for the purposes of this section shall remain in force for twelve months or such shorter period as may be specified therein: Provided that any such resolution may be extended from time to time by a further such resolution, each extension not exceeding twelve months from the date of the resolution effecting the extension, and any such resolution may be revoked at any time by a further resolution.
[ii] NOW THERFORE, be it resolved by this National Assembly that it is necessary to extend the State of Emergency up to a period of six months or such shorter period as may be specified to take effect from the 17th day of April, 2020 to combat the threat of the COVID-19 virus to the Federation of Saint Christopher and Nevis.
[iii] Section 19 (5) of the Constitution Order of Saint Kitts and Nevis – A declaration of emergency may at any time be revoked by the Governor-General by proclamation.
[iv] Section 19 (8) of the Constitution Order of Saint Kitts and Nevis – A resolution of the National Assembly for the purposes of subsection (3) and a resolution of the Assembly extending any such resolution shall not be passed in the Assembly unless it is supported by the votes of not less than two-thirds of all the Representatives and Senators; and a resolution revoking any such resolution shall not be passed unless it is supported by the votes of a majority of all the Representatives and Senators.
[v] Section 92 (3) of the Constitution Order of Saint Kitts and Nevis – Every person not already owing allegiance to the Crown who, having reached the age of eighteen years, applies for registration under subsection (1) shall, before such registration, taken the oath of allegiance.
Noted that 92 (1) speaks to the registration of non-nationals for citizenship of Saint Kitts and Nevis.
[vi] I, _______________________, do swear (or solemnly affirm) that I will faithfully bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors, according to law.
So help me God. (To be omitted in affirmation).