The upcoming general election provides a perfect opportunity to examine and re-examine issues revolving around who is, and ought to be, qualified to vote in an election. As members of the British Commonwealth, English-speaking Caribbean states have adopted a number of institutions, structures and practices of their former metropolitan mother country. Not least among these are rules pertaining to voting, inclusive of the qualifications for the vote and the electoral system.
In the United Kingdom, every individual who has registered to vote, and ‘who possess(es) valid leave to enter/remain in the country’, and who is eligible to hold public office (e.g., as a judge, magistrate, minister, police constable, member of the armed forces, etc.) is qualified to vote in elections. Thus, nationality was not and is still not viewed as a precondition for exercising political rights in the UK.
Indeed, quite recently, we witnessed approximately one million non-British citizens participating in the BREXIT vote in Britain in 2016. And this too, has undergirded election law in all Commonwealth Caribbean jurisdictions. Not only are voting rights extended to non-citizens, but in many countries, a time frame is established in law to qualify for the vote.
For instance, much further afield in Australia, prior to 1984, while the law granted the right to vote in federal elections and referendums to British subjects living permanently in Australia, and who were not Australian citizens, it also imposed a residential criteria. Accordingly, such persons had to satisfy a minimum Australian residence qualification of six months.
However in 1981, the Parliament passed legislative amendments changing the federal franchise qualifications which restricted voting only to Australian citizenship. But prevailing attitude was that it would be unfair to disenfranchise British subjects who were already registered and entitled to vote. Consequently, such individuals were legally permitted to retain their franchise.
In Jamaica, the Fundamental Rights (Additional Provisions) (Interim) Act, specifically grants the right to vote to citizens of Jamaica, resident in Jamaica at the date of registration; and to a Commonwealth citizen (other than a citizen of Jamaica), who is resident in Jamaica at the date of registration and who has been residing in the country for at least twelve months immediately preceding that date.
Like Jamaica, Guyana and in countries of the Organization of Eastern Caribbean States (OECS), election law in Barbados recognizes two categories of eligible voters.
1. Citizens of Barbados.
2. Commonwealth citizens (other than citizens of Barbados) who have resided in Barbados for a period of at least three years immediately before the qualifying date of registration).
Given the high stakes involved in elections, changes to election laws have not been unusual. In Antigua and Barbuda, for instance, a 2010 amendment extended the residency requirement for Commonwealth citizens who wished to register to vote, from three to seven years. Gaston Browne, then Opposition leader (now Prime Minister), challenged the constitutionality of Section 5 of the Representation of the People (Amendment) Act 2010, (Browne v AG Antigua and Barbuda). Browne argued that the amendment unfairly discriminated against Commonwealth citizens and would deprive them of their vote.
In simple terms, the court dismissed the appeal and ruled that Parliament may by ordinary legislation pass laws prescribing the qualifications relating to residence and domicile for Commonwealth citizens to be eligible to vote and that the amendment did not violate the provisions of the constitution. The court therefore asserted that the 2010 amendment merely changed the eligibility of Commonwealth citizens to register as a voter which was sanctioned by the constitution itself.
Like Australia, there were obvious concerns related to the rights of persons who had previously been enfranchised prior to the 2010 amendments. Interestingly, in that regard, the Courts ruled that statutory provisions which affected existing rights prospectively, such as the provisions of new amendments, could not be applied retrospectively.
But membership of the Commonwealth is not the only factor that has had a profound impact on electoral rules in the region. All Commonwealth Caribbean states are signatories to the International Covenant on Civil and Political Rights (ICCPR) which establishes the right to vote as a matter of international human rights law. And as early as 1966 and 1968, Jamaica and Guyana respectively became the first Commonwealth Caribbean countries to do so.
While some states did not sign on to the Convention until 2011 (St. Lucia for example), they have obligated themselves to the provisions of the Convention and can, if required, access the judgement of the Human Rights Commission. That convention specifically recognizes the right to vote as a right attached to citizenship. And this has been the cause of tremendous concern, for the Convention does not explicitly address the right to vote for citizens in the diaspora and elsewhere.
The fact is that the International Covenant on Civil and Political Rights (ICCPR) is very clear that ‘every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 (grounds for discrimination) and without unreasonable restrictions: … to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.’ Unfortunately, while the language of the Convention does not specifically address the issue of residency, unlike race, class, gender, and so on, residency is not prohibited as a basis for discrimination to vote in an election.
What then are the rights of the hundreds of thousands of Caribbean nationals living overseas who regularly contribute to development in the region? This has been a major cause of election-related disputes in several Caribbean jurisdictions. For sure, this featured highly in the 2014 and 2015 elections in Dominica and St. Kitts-Nevis, for example, with Opposition groups arguing that the ruling political parties were flying in non-resident citizens to vote in what in effect was a local affair.
We are all members of the CARICOM single market and a major aspect of membership under the revised treaty of Chaguaramas, is the right to free movement. What this means is that a qualified CARICOM national can live and work in any CARICOM state that participates in the free movement regime without the need for a work permit. It is also anticipated that skilled nationals have the right to live and work indefinitely whilst other CARICOM citizens can live for up to a six month period.
So what of CARICOM skilled nationals who are legally employed beyond the six month period, who pay taxes, contribute to the development of their host country, have families and are law abiding individuals? We know that the CARICOM treaty does not conceive of a redefinition of citizenship for it is quite unlike the European Union. Yet, we should ask, ought CARICOM citizens who live and work in another CARICOM country be denied a say in the governance of their adopted country? Or should citizenship, including voting rights, signify a privilege given to persons who have the full nationality of the country?
Should Caribbean states which pride themselves on being democratic, deliberately and systematically, exclude some of its permanent non-citizen residents from taking part in political decisions affecting them and their community? The same applies even more so to the sub-regional grouping, the OECS, which is an economic union.
Commonwealth Caribbean states by definition are small, and, we can agree, that this is arguably a critical factor not only in economic development, but also political matters, notably elections. There is no doubt that, given the small size of Caribbean states, and by extension, the electorate, that political parties will undertake a fierce contest for the vote of every elector. This is especially critical in countries like Barbados and the OECS with populations ranging between 50,000 and 300,000.
With so much at stake in our ‘winner takes all’ system, with its attendant lack of power balancing, that when placed against the backdrop of small constituency sizes, and a highly partisan vote, it is clear that a slight swing can easily tip the scale, resulting in either victory or defeat of a party. This is all the more so in countries where marginal constituencies are not vanishing.
A small number of Commonwealth voters can therefore impact the outcome of an election in a decisive way. Hence, electoral laws and the manner in which they are applied do have serious political consequences.