Suspended president of the National Union of Public Workers (NUPW) Akanni McDowall can run for re-election after all.
Furthermore, the High Court has put on hold any union election for a new executive for at least 21 days and also ordered that the union extend the period for McDowall to submit his candidacy for president or any other elected post until July 29, 2021.
The order was issued virtually on Thursday by Justice Cecil McCarthy in a session attended by McDowall, his attorneys Kevin Boyce and Omari Drakes from the law firm of Clarke Gittens Farmer and NUPW Acting General Secretary Wayne Walrond and his Deputy Richard Green and NUPW attorney Larry Smith Q.C.
McDowall, whose suspension as president and as a member on the eve of Nomination Day on June 24 prevented him from contesting the poll previously scheduled for July 15, was granted an interim injunction to postpone the election when he appeared before Justice McCarthy last week seeking the order.
The court had reserved, until Thursday, its ruling on the broader issues such as McDowall’s participation in the election, the allocation of time for him to recoup lost ground for campaigning and the union’s withdrawal of a memorandum suspending him as a member and president.
The embattled president told Barbados TODAY that he was happy the High Court agreed with him that he had been wronged.
“After this morning’s ruling, I feel vindicated. This is what we hoped for, and we are very happy that this was the outcome,” McDowall said, while remaining tight-lipped about his next move.
“Having been placed in this position by the actions of some members of the NUPW, I felt it vitally important, on a point of principle, to pursue this matter in the manner in which I did. When you are wronged, you must follow the appropriate course of action for that wrong to be corrected, and today it was. I and my actions have been vindicated by the High Court of this country.
“My right to participate in the upcoming elections has been restored, and I am quite satisfied with that. All members also now have their rights restored to ultimately elect whomsoever they want to represent them. I am quite happy with that,” he added.
In today’s ruling, the judge did not interfere with the union’s decision to suspend McDowall as president, but instead ordered his reinstatement only as a member to allow him to vote and run.
Justice McCarthy insisted that the order handed down by the court must not lead other members who have not already been nominated, to offer themselves as candidates.
The judge also took time out to make some strong comments and observations regarding certain actions of the National Council – the second highest decision-making organ within the NUPW – particularly related to McDowall’s suspension and his inability to participate in the poll.
“Now the court has considered this matter carefully and it has come to the decision that because of the fact that the suspension occurred without any opportunity [given] the claimant to be heard or the charges were not proffered before the suspension occurred…
“…Because of that, that looms large in relation, not only to the serious issues to be tried, but it also looms large in relation to the balance of justice,” he added.
The judge continued: “Because of that and the significant learning in relation to that, the court believes that it has no option other than to permit Mr McDowall to stand for election if he so desires. The court feels that given the fact that the term [of presidency] essentially would have expired…he would have served six terms…there is a new cycle of elections. Therefore, given the acrimony, the court does not see any need to reinstate him as president or in any other office.”
“However, the court is very strong on the point that a member, except in very exceptional circumstances must be allowed to vote and offer themselves for office. Even more so in the case of Mr McDowall, where he has served the union continuously for six years, and therefore the court feels that the suspension should not result in a member losing his ability to vote or to offer himself for election; so that he would have the opportunity to offer himself to all posts and he would have the opportunity as well to have his membership reinstated to facilitate that,” declared Justice McCarthy.
The High Court judge also said he did not buy the argument of the union’s attorney Larry Smith QC, that even though McDowall was not heard before his suspension, the rules of the organization permitted it to immediately suspend him based on the “egregious” nature of the allegations.
“Mr Smith in his submission felt that one aspect that ought to be considered is the relative strength of the parties and case. I must tell you that based on the authorities that have been provided to me, it seems to me that the claimant has a pretty formidable case. I am not saying it can’t be beaten, but it seems to me the claimant has a formidable case…so it seems to me that on all the major factors that a court would be expected to take into account, the balance is in favour of the grant of the injunction,” the judge declared.
Justice McCarthy said even though it may be true that McDowall should not have associated himself with the controversial resolution that would have effectively removed Acting General Secretary Wayne Walrond and installed himself as Secretary General, such “noises” would not sway the decision of the court.
Stating that the court has to act on principles of law, the judge asked all concerned to consider the following:
“If it is that a National Council can suspend a member without hearing that member and it prevents that member from contesting an election, what is to stop future national councils from doing it to people that they don’t like”
Meanwhile, the damages which were sought by the claimant have been rejected by the judge who pointed out that such a remedy would not be adequate to help him in his pursuit to run for office.
Earlier in the one-and-a-quarter hour court sitting, the attorney for the union, in response to a question from the judge, informed that a disciplinary union hearing which was scheduled for yesterday had been postponed until August 15.
And just before the court rose for the day, Smith enquired whether the union could still have that rescheduled internal hearing.
But the judge advised that while he did not think it would be a good idea in the midst of an election environment, he declined to make a ruling stating instead that if the claimant’s lawyer felt the process was being abused, he was free to re-apply to the court to have it dealt with.
Justice McCarthy also ordered that an early High Court trial be held to deal with all other disputed issues before it.
“Costs of this interim application [shall] be awarded to the claimant; such costs to be agreed and if not, assessed; the substantive hearing of the matter [shall] be set for an early trial,” the order concluded.
McDowall praised his legal team, especially lead attorney Kevin Boyce and Omari Drakes, for the outcome of the matter.
“They believed in my case from the beginning and showed tremendous grit over the past week,” he told Barbados TODAY. ([email protected])