The DLP government invited a Joint CARICOM-COMMONWEALTH-OAS Special Mission to review and to make recommendations on reforming the electoral system in Dominica. The Special Mission submitted its report to the DLP government on 26 August 2020. The contents of the 19 page report were examined in PART XII of this series. To recap, the report indicated that the DLP government continues to be nonchalant, unenthusiastic, lackadaisical and tardy in implementing all recommendations made by regional and international organizations for electoral reform in Dominica over the last 10-15 years. However, there was sufficient time to implement at least three of the most crucial and basic recommendations for free and fair election before the next general elections in Dominica constitutionally due in 2020 i.e. cleansing of the list of registered voters, which included the re registration of voters, the issuance of photo ID for voting and regulating how voters residing in the diaspora were to be dealt with.
The Mission reiterated the importance of public education in the electoral reform process. It noted with regret the mistrust and antipathy evident between the political parties, the high cost of campaigning, the tone of anger and divisiveness, and the increasing incidence of violence in our elections, which it denounced with a note of caution, “A diversity of perspectives is crucial in any healthy and successful democracy – so too is a willingness to collaborate and to compromise. Neither violence, nor the insinuation of violence, has any place in the electoral process.” The Joint Mission saw an urgent need for the political leaders in Dominica to reset the political tone in the best interest of Dominica stating,“Ultimately, only the people of Dominica can determine what is best for Dominica…all sides of the political divide should renew their commitment to collaborate in resolving Dominica’s electoral challenges and to establish a firm foundation for the continued modernization and strengthening of the country’s electoral processes.”
Immediately upon receipt of the report from the Joint-Mission, the headlines in Dominica read, “DLP Government rejects joint-mission report,” and “Joint-Mission report on electoral reform is unacceptable, says AG” among others. The DLP Government expressed disappointment in several of the conclusions and recommendations made in the report. It was not shy in demonstrating its unhappiness with the report and the recommendations contained therein. It deemed some of the recommendations as too costly for implementation,unworkable, outright unacceptable and likely to cause more confusion than resolution. They recommendations fail to achieve the desired objectives of reform, particularly as they did not provide guidance on the removal from the Register, the names of electors not entitled to be on it (e.g. electors who have been absent from Dominica for a continuous period of five years) nor on the mandatory use of photo identification cards for the purpose of voting. AG Levi Peter remarked,“while the government welcomes certain aspects of the Commission’s recommendation that are more in tune with its own thinking, the government is unable to accept aspects of the recommendations contained in the report, in particular, the recommendation in relation to the house to house re-verification exercise.”
AG Peter observed that the Joint-Special Mission, like the government, is of the view that the existing electoral legislation must be amended to enable photo identification cards (if the decision were to be accepted that National ID cards with biometric data were to be used.) Accordingly, while the DLP government took note and accepted the important best practice principles that electoral reform needs to be carefully managed to ensure that it reaches its intended and stated purpose without confusing electors and with minimal disruption to the electoral administration, the unsuccessful attempt at reform could have dire consequences.
AG Peter stated, “the government is of the view that recommendations from the Joint Mission in particular the re-verification, are “unworkable and if implemented will cause confusion and disruption contrary to best practice and importantly will not result in the required updating of the list…It will not result in the mandatory use of the photo ID and will not be properly updated and cleansed. The recommendation of the house to house is not supported by Dominica’s laws and even if it was, it could not properly update or cleanse the voters list as proposed…. Dominica would essentially be in exactly the same place in respect to the voters list as we now are. Accordingly, the report will have the unacceptable impact of causing the state to incur significant increased financial, human and other resource cost for no real reform or dis-enable improvement in our electoral process…Electoral reform is a complex and challenging endeavor which requires the cooperation, political maturity, broad involvement, and goodwill of as wide as possible of a cross section of the society. The government will continue to be mindful of the very important best practice principle that an unsuccessful attempt at reform could have serious consequences……The government is of the firm view that in all the circumstances the draft amendment bills and the confirmation process propose in those Bills provides the best means of securing credible and workable and lawful electoral reform which will deliver mandatory issuance and use of photo ID for updating and cleansing the list. Government will continue to engage the opposition parties, Joint Mission, other stakeholders and other regional and international partners in its effort to achieve effective electoral reform.”
Mr. Peter regurgitated the same talking points of the DLP Government which were voiced at previous public consultations on electoral reform and also by the Minister of Foreign Affairs before the OAS body in Washington DC including namely:
i. The Electoral system: The existing electoral system has served Dominica very well and has delivered credible elections and facilitated the peaceful transfer of power. It is noteworthy that throughout Dominica’s post-Independence history there has never been any recorded case of personation (i.e. voter fraud where an individual votes in an election whilst pretending to be a different elector);
ii. Re-registration process: There have been two main issues concerning the electoral process, which have occupied the minds of the general public over the last few years and on which there is consensus i.e., updating of the register of electors and where appropriate and lawful, the removal of names of electors no longer entitled to remain on it. The other is the introduction of photo identification cards for the purpose of voting on which there has been a divergence of view on how this could be achieved. The AG stressed that the Government, in consultation with the Electoral Commission finalized draft legislation that would introduce a confirmation process; authorize the collection of biometric data from electors for use in relation to the introduction of photo identification cards; and would remove from the Register voters who are ineligible.
The Government remained vehemently opposed to the proposed house-to-house re-verification exercise as it would not achieve the desired reform of updating the Register of electors as it states, “[t]hose electors not found and who fail to come forward after publication of the “Electors Not Found List”, should remain on the Voters’ List unless and until they are removed under the provisions included in Section 7 of the Registration of Electors Act.” One cannot argue against this position of the AG as the implementation of this recommendation would have effectively left the situation which currently exists unchanged.
Per the recommendation, if implemented, notwithstanding the possibility of absenteeism from Dominica for longer than the previous five years, some electors from the Diaspora would still be able to remain on the Register and be eligible to vote. The AG believed that in contrast, the Government’s robust, effective and legally sound reform and confirmation process proposed in its draft amendment Bills offers a more effective outcome. Consequently, the recommended house-to-house re-verification exercise, if adopted, will result in the State unduly and unnecessarily incurring substantial increased expenditure of financial, human and other resources for an exercise which will bring no discernible improvement in the Register or electoral system. Therefore, based on sound legal advice, the Government disagreed with the opposition and those opposed to the DLP idea of a confirmation process – which is not the same as the re-verification process recommended. It also introduced a National photo identification card system and maintained that the processes provided for in its draft Bills are the most effective way forward for electoral reform.
Furthermore, according to the AG, the Report of the Joint Mission does not give any indication that adequate consideration has been given to the limited time-frame available for completion of the recommended house-to-house reverification exercise or the universally accepted fact that the Prime Minister is constitutionally empowered to call the general election at any time of his choosing during the remaining eight months. More importantly perhaps, is the fact that should the Prime Minister exercise his constitutional authority to call the election (as he did) this would even further reduce the time available to the Electoral Commission and Electoral Office not only to complete the house-to-house re-verification process, but critically, also to test and satisfy themselves that the new register, equipment, electoral systems and process would work effectively and efficiently.
iii. Identification Cards: The Government was pleased with the Joint Mission’s recommendation to amend the existing electoral legislation to enable the introduction of National Photo Identification cards for the purpose of voting and to increase the authority of the Electoral Commission in that regard. However, the Government rejected the recommendation that electors whose names appear on the register but are not ‘found” or re-verified should be required to produce some form of “other” identification. The Government argued that this is not provided for in Dominica’s law. Similarly, the recommendation that electors in that category should be required to take an oath or affirmation of identity and have their fingerprints taken does not have any basis in law. The AG argued that to achieve this, appropriate amendment of the electoral legislation would be required. However, any such amendment, even if it could be made, would likely have significant and unacceptable discriminatory effects, this would be a recipe for confusion, uncertainty and disorder on Election Day.
iv. The Government expressed disappointment that the Joint Mission failed to discuss its draft Bills, which were prepared in consultation with the Electoral Commission and which were submitted to the Commission for its consideration. According to the AG, the draft Bills were previously reviewed by a legal expert from the Commonwealth, who expressed satisfaction that the draft Bills met the requirements of international best practice and the desired effect of updating the Register and mandating that photo identification cards be used for voting.
v. Voting by the Diaspora: With respect to the recommended engagement of the Immigration Department and its records as the basis for determining eligibility or otherwise of an elector to remain on the Register, it would have in any event been necessary to follow due process and to give the elector in question the opportunity to be heard and to make representations before s/he could lawfully be removed from the register. While this is correct, this is a process that can easily be done by the Commission within quick time as done in several other jurisdictions in the region in recent times. Once again, one tends to agree with the AG in his outright rejected of the recommendation that electors from the Diaspora whose information cannot be verified should be allowed to remain on the Register to prevent disenfranchisement of a valid elector as it failed to deliver one of the principal reform objectives on which there is consensus, namely removal from the Register of all names of electors who are not lawfully entitled to be there. The AG argued that as with resident electors, the recommendation that electors from the Diaspora be required to provide a valid passport in order to be able to obtain a ballot paper and to vote is not provided for under existing law and, for the same reasons, if any such amendment were made, it would likely be held to be discriminatory. The recommendation was therefore deemed un-implementable without necessary legislative amendment
vi. Redistricting and Changes to electoral boundaries: According to the AG, whilst well-intentioned, the introduction of this issue is an unfortunate addition of an extraneous layer to an already complicated situation. Under Dominica’s electoral laws constituency boundaries and issues of “redistricting” have little, if any, relevance to the two principal reforms, which this Mission and Report are concerned with. More significantly, under Dominica’s electoral laws constituency boundaries and “redistricting” are not within the purview of the Electoral Commission but rather the Electoral Boundaries Commission, which is a separate constitutional body governed by a separate set of legal procedures and practices. In fact, the re-verification of electors who are “found” will not be of any assistance to the Boundaries Commission as that body is concerned solely with “inhabitants” (which includes persons who are not registered) and not “electors”. Once again, one agrees with the AG as this is a matter to be considered as part of comprehensive electoral reform and could not be addressed before the last general elections.
The AG considered best practice in addition to the other reasons advanced as to inadequacies and inappropriateness of the recommendations contained in the Joint-Mission’s report and why the recommendations as proposed could not be accepted or implemented. He recognized that in the limited time available to it, the Joint Mission could not have been able to fully appreciate and consider all of the relevant factors including the existence, importance and necessity of the draft amendment Bills. He further expressed his government’s belief that changes or reform to an electoral process is always a sensitive matter and should be handled with broad stakeholder consultation, with a view to achieving consensus. “Electoral reform is an issue that benefits from a mature and objective review by all political parties,” the AG stated. He considered the enactment of the draft amendment Bills and Regulations (with or without appropriate further revisions, if necessary inclusive of provisions to legitimized treating and bribery and to send officials of the Commission overseas to confirm registered voters) was the best and only workable proposal for meaningfully, expeditiously and effectively implementing the electoral reforms which by consensus are required to provide the desired mandatory introduction and use of photo identification cards for the purpose of voting, and revision and updating of the Register of Electors….To date, however, none of that has been done and the Government is now paying retired justice Sir Byron over half a million dollars to give further advice on the same issues.