Revisiting the High Court Ruling on the Barbados 2022 Election

Last Updated on February 11, 2022 9:58 pm by Editor

On Tuesday night 18 January, Justice Cicely Chase threw out the challenge to the suit brought to halt the 2022 Barbados General Elections. Voting was due the very next day, Wednesday 19 January.

Background

According to a NationNews report, the election suit was brought by attorney Lalu Hanuman acting on behalf of Philip Nathanial Catlyn of the Barbados Sovereignty Party (BSP), a candidate in the said election.

The reader is forewarned that this article is not a legal opinion and that the author is not an attorney by profession, but is simply exercising freedom of speech while applying basic research and critical thinking skills to the matter.

The response of Madam Justice Cicely Chase to the suit was that she “did not have jurisdiction to hear the matter and that it ought to have been brought before an election court”.

It is instructive to note that Madam Justice did not excuse herself from the case for reasons of incompetence, in other words for lack of knowledge of the law and the legal ability to make a judgment in the case.  That would have been very strange indeed.

The submission grounds was the matter of jurisdiction, a subject we shall return to momentarily. 

Barbados Court System

According to www.britannica.com, a court is “a person or body of persons having judicial authority to hear and resolve disputes in civil, criminal, ecclesiastical, or military cases”. 

The Barbados court system is divided into four main levels (Barbados Integrated Government).  At the lower level we have magistrates’ courts and at the pinnacle, the Supreme Court which consists of the High Court and Court of Appeal.

Beyond this is the Trinidad based CCJ (Caribbean Court of Justice) which is the final court of appeal.

Courts can be set up for various purposes. For example, in Barbados we have a traffic court and family court. Specific courts such as these are so named because of their express purpose, location, times of meeting and officers appointed to serve in them etc.

Embodied in these special courts is the concept of “jurisdiction” which primarily means the range of matters over which a particular court is empowered to accept as cases and therefore, over which it can make rulings. 

Jurisdiction also has a geographical denotation; for example the Oistins Court has jurisdiction over matters assigned to it from the parish in which it resides and designated surrounding areas.   

In other words, it would seem that the set up of a specific court outside of the primary system outlined above is mostly an administrative matter, rather than a substantive jurisprudential requirement.

Election Court?

Constitutionally, elections in Barbados are held every five years. Therefore, in theory, the need for a specially constituted election court might occur once in five years.

Of course, there is also the possibility of by-elections which could be held at any time and for any reason.  However, the establishment of an election court even with by-elections in mind would seem, from an administrative perspective, a waste of taxpayers’ money and defeats the goal of overall judicial efficiency.

Simple matters such as a recount of votes are generally handled by the EBC (Electoral and Boundaries Commission) and the candidates and parties involved.  Naturally, such matters could end up in the law courts if there is no consensus on the proceedings and outcome.

Nevertheless, it has not been found necessary to devise a dedicated election court with such a narrow jurisdiction in the modern electoral history of Barbados which began with universal adult suffrage in 1951.

Two Cases

What makes the ruling even more questionable is that there are cases in the commonwealth where the High Court has heard election cases. For example, in September 2017, the Kenyan Supreme Court nullified the country’s presidential election.

According to the Commonwealth, Kenya’s Independent Electoral and Boundaries Commission (IEBC) had previously said that incumbent President Uhuru Kenyatta had won the election of 8 August 2017 by 1.4 million votes.

However, according to the same source, the Supreme Court had said in a ruling on 1 September 2017, that the election was not conducted according to the constitution and the result was therefore “invalid, null and void”. A new election was to be called within the next 60 days.

Turning to Guyana and the controversial presidential elections of 2020, it is noted that the CCJ ruling over the recount of votes in the 2020 presidential election, while it did suggest that the Guyana High Court and not the Guyana Court of Appeal was the appropriate jurisdiction to hear the case brought for a recount, did not at any time suggest that an election court was the appropriate jurisdiction.

Conclusion

It should be noted that to the best of our knowledge, no official international team of observers, from the Commonwealth or elsewhere, was invited to witness the January 2022 Barbados election

In our humble opinion the apologies given by the chairman of the EBC of Barbados re. the violation of freeness and fairness in the recently concluded 2022 election are inadequate.  If this is the way we are going to conduct our affairs as a republic we are surely off to a bad start. 

It remains to be seen whether there will be any substantive challenge to the 2022 election results in the days, weeks and months ahead.

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Dr. Aldon Tull, the author, is a retired educator who holds a Master of Science in International Marketing and the Doctor of Education. 

He can be reached at editor@barbadosuncensored.com at 246-228-3720 or on Whatsapp at 246-846-3191

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