#BTColumn – Towards a new Barbados constitution

Disclaimer: The views and opinions expressed by the author(s) do not represent the official position of Barbados TODAY.

Accountability critical to governance

By 

Henry Fraser

Peter Webster 

Bryan Weekes

“How wonderful it is that nobody need wait a single moment before starting to improve the world.” – Anne Frank

“No one is born a good citizen; and no nation is born a democracy. Rather, both are processes that continue to evolve over a lifetime. Young people must be included from birth.” – Kofi Annan “A democracy is not a dictatorship of the majority.” – His Excellency Errol Walton Barrow

“In a democracy, the majority gets to decide on all things except those that violate the core principles of their society. When that happens, it undermines the principles of democracy. Checks and balances are therefore needed.” – Anon

Background 

The Republic of Barbados has a written Constitution which sets out fundamental or basic principles, rules and laws that determine the mode in which the state or society is organised, especially the manner in which sovereign power is distributed. Barbados’ Constitution therefore sets out the powers and duties of the Government and guarantees certain rights to the people in it, including its citizens. 

The Barbados Constitution, having been amended and modified from time to time, may be described as that of a democracy. However, this democracy has been evolving, and not always for the better, because our current state or society has several identified governance issues and social problems which need solutions and corrections. It is hoped that most, if not all, of these solutions and corrections can be achieved through a reform of its Constitution and subsequent implementation. If such are not achieved, then the reform process would have failed the people of Barbados.

This submission to the Constitutional Reform Commission (CRC) focuses on what we think is the major governance issue. We presume that most of the other issues will have been articulated by others and considered and dealt with by the Commission but so far we have not seen or heard any mention of this major issue which is “the lack of accountability by those responsible for our governance”. 

This submission is being written for the record (posterity) and because an oral presentation can focus too much attention on the messenger rather than the message. 

Stewardship, transparency and accountability 

A good political steward takes on the political responsibility of caring for something on behalf of the other citizens and stakeholders. Therefore, political stewards do not have ownership of what they have responsibility for, but must carry out their duties conscientiously and in a transparent manner, since they should and need to render an account of what they have done for the citizens or stakeholders. That rendering of account is the political steward’s accountability or obligation to report, explain, and justify their actions to the citizens or stakeholders and to do so in reasonable standards of quantity, quality, and time. Such accountability includes being held responsible for any omissions or commissions which should not have occurred and for which they should have to pay a penalty. 

In the same way that the constitution sets out “the powers and duties of the Government” it needs to spell out the accountability of those who have been empowered to govern, thereby promoting the obligation to render an account of what they have done.

Many of our citizens believe that the only current accountability our political leaders are obligated to render is the need to go to the electorate every five years. Such “accountability” is, however, seriously diminished by the electorate’s limited choice between two political parties, often described as the “lesser of two or more evils”. A greater “accountability” obligation by our political leaders and our public sector as a whole, including penalties for their omissions or commissions, is an absolute necessity.

Essentially, Barbados has political independence with little or no political or public sector accountability. His Excellency Errol Barrow “let the cat out of the bag” when he was justifying the change from a foreign Governor General to a local. He said then that “all those foreign Governor Generals did was to go to the Savannah and yacht clubs and ‘write reports on politicians’”. He wanted no such accountability! There are no checks and balances in our system of governance that would oversee, limit or control the power of the government, far less hold them accountable. The argument seems to have been that any such limit or control is not in the people’s interest. However, the opposite is the case as such absolute and unfettered power can be corrupting and promote mismanagement. 

Such accountability must extend to all public servants who, for all intents and purposes, currently have none. This lack of accountability is likely to be the main reason for the 70 per cent implementation deficit, identified by all the international organisations operating in Barbados, which is generally applicable to all sectors within the civil service. This, taken together with the great difficulties in getting business done in Barbados, the poor maintenance of infrastructure, buildings and equipment, their high costs and the long length of time it takes to get things done along with many other indicators of poor performance, all paint the picture. It is this poor performance of the public sector that has seriously hampered and delayed Barbados’ development and the delivery, quality and timeliness of needed services, especially to the poor. 

At the same time, the lack of accountability of the public sector for which a billion taxpayer dollars is budgeted annually (ask the Auditor General), is directly linked and associated with that of our political leaders. It is clear that the Auditor General’s Reports, simply ignored by governments but which highlight that lack of accountability, identify just the “tip of an iceberg”. 

There are too many glaring examples where action should have been taken years ago but which have been allowed to slip and slide or defaulted. These include (just to mention a few, among many others): effective public sector reform to improve performance and obligatory accountability; integrity legislation urgently needed to curb the increasing graft and corruption that has been creeping into our public sector and is driving its cancerous spread to other sectors; education reform that will correct the appalling failure of our primary schools and glaring gender inequity currently imposed on our male children; and the huge empowerment gulf that exists between the governing public sector and the untapped human resources within our varied communities. 

The benefits of enhanced accountability to the citizens and residents of Barbados include: 

1. Better access to information on the performance of government ministries and agencies and matters of public interest;

2. Greater transparency on the allocation and expenditure of public resources;

3. Strengthened mechanisms to detect and address corruption in the administration of government and public bodies;

4. Enhanced ability to hold government and public officials accountable for the efficient and effective use of public resources and the achievement of targeted outcomes; and

5. Greater opportunities for citizens to participate in the determination of government priorities and the monitoring of outcomes. 

Options for obligatory accountability 

Public sector accountability is not led by any one agency but a range of entities, agencies, and institutions, including the Judiciary; the Auditor General; Director of Public Prosecutions (DPD); the Public Accounts Committee (PAC); and the Ombudsman. However, these are all poorly performing (70 per cent implementation deficit) civil servants with no incentive to improve their performance. None of these seem to function properly and are all understaffed, with few producing Annual Reports. The Judiciary is not independent but owes their selection to the Prime Minister; the Auditor General writes critical reports with no follow-up; the DPD seems to be inundated; the PAC does not seem to function at all; and the Ombudsman ducks any complaint that has the smallest possibility of being pursued in a civil court, but we have no civil justice because the QCs/KCs boast that they can delay any civil case in Barbados indefinitely and they do! 

There are several other mechanisms which may be used to promote the obligatory accountability needed for our public sector, including our political leaders. While no individual mechanism manifests itself or stands out, taken together, they could achieve the accountability objective required: 

1. The “recall” option is one means of the electorate achieving more accountability from those elected to serve but a “recall” of an elected official before the end of the elected term is costly and limited in its practicality and therefore must not be used “willy-nilly”. We propose that a clause in the new Constitution would introduce a ‘Right of Recall’ by the electorate of any constituency or parish. In the event that any elector of a particular constituency is dissatisfied with the performance, for any reason, of a member of parliament, whether House of Representatives or Senate, that person can file with the Electoral and Boundaries Commission a request for a Petition of Recall to be issued. The Petition of Recall would be kept at the office of the Electoral and Boundaries Commission for a period of 160 days. In the event that a number of electors of the constituency or parish relevant to the petition, equal in number 60 per cent of the electors on the roll for that constituency, sign the Petition, the Commission shall, after confirming the signatures, advise the President to issue a Writ of Recall. Upon the issuance thereof, the Senator or member of parliament would cease to be a member of parliament and the candidate who secured the second highest number of votes in the election which preceded the Petition of Recall shall be sworn in as the new Senator or member of parliament.

 2. Limiting the number of terms an elected official can hold office is another such mechanism which sends a message of accountability. However, in a small community with only a small pool of persons interested in politics, this could further reduce the options of the electorate which are already limited. Instead, the electorate needs to get a better sense of the performance of the elected; 

3. Empowering and obligating the Auditor General to pursue penalties for those in the public sector who have contravened the accounting rules and regulations, including politicians. The current situation where the Auditor General conducts his audits and writes a report with no follow-up is unacceptable as no one seems to have that follow-up responsibility;

 4. Empowering and obligating the Ombudsman and his office to deal with all complaints against the Government and its civil service whether the complainant has the option of otherwise pursuing the matter in a legal court or not; 

5. Integrity Legislation: There is already draft integrity legislation in existence in Barbados, but the fact that this has been in the system for many years and not finalised proves the lack of accountability by our political stewards. The CRC needs to include this legislation, or an improved version, in its new Constitution. Furthermore, citizens should be obligated to report conduct that they suspect on reasonable grounds to be serious or systemic corrupt conduct with failure to do so attracting a penalty. Linked to this should be “whistleblower” legislation that will protect all such whistleblowers;

 6. Establishment of a rigorous Performance Evaluation System for the entire public sector, including magistrates and judges, on which incentives (rewards and sanctions) can be based. For more than 20 years the Public Sector Reform Unit of the Government has been trying to establish such a system, but they started at the bottom i.e. maids and drivers rather than Permanent Secretaries and managers including their own Unit which should have been the very first with such a system. The civil service is the executive arm of the government, i.e., it is responsible for implementing the policies of the government. As such, the electorate relies on the civil service to keep the power of the elected in check. When our civil service is not functioning properly, that role is not being performed; 

7. Creation of an independent Judiciary, not appointed by the Government/Prime Minister who must also be held accountable for their performance;

 8. Formalising and enshrining our Social Partnership as an entity within the governance structure as a mechanism which can promote accountability of the public sector; 

9. General Elections should be held on a day identified every five years. For example, the first Tuesday of November or every 5th year; 

10. Remodelling the Senate so that it can function without undue politics or fetter as an effective check and balance to the dominant Lower House of Parliament. 

Why we need a Senate 

In Barbados, the Senate is the “Upper House” of a bicameral legislature, the Parliament of Barbados. Both the Senate and the House of Assembly or Lower House constitutionally share most of the same powers. However, the Lower House is dominant. The Senate is limited in the amendments it can make to legislation passed by the House of Assembly, but the latter can still authorise legislation that is not approved by the Senate. The former Governor General, now President, appoints 12 Senators (a majority) on the advice of the Prime Minister and two on the advice of the Leader of the Opposition. The remaining seven Senators are nominated by the President at his/her discretion to represent various religious, social, economic, or other interests in Barbados. Unfortunately, these seem to be all or almost all political in the current Senate. Who can truly represent all those other “interests” – professional, trade union, et cetera – in our society? The politicians, who are mostly lawyers, cannot really do this! 

The purpose of our Senate is to review legislation originating in the House of Assembly and it can also create new legislation. However, since our Senate has not created any legislation in a long while, it would seem that its main purpose is to provide a “sober second thought” to legislation passed in the “lower house” while being dedicated to the “common good”. Our records show that as much as 50 per cent of the legislation originating in the “Lower House” has errors of omission or commission. 

Additionally, our Senate is thought by many to be too politicised, doing little more than replicating and regurgitating the rhetoric of the Lower House. This is all too common an occurrence across the world with the result that many countries have abolished their Senates.

The key issue here is that our Senate, if properly constituted, could and should be a further check and balance to the Lower House and our public sector, thereby performing a crucial role in promoting the accountability that is now sadly lacking. 

We propose that in the new Constitution, the Senate be a body of 16 Senators (half the number 15 in the Lower House) plus an elected President who would be Speaker of the Senate. Each Senator would represent two existing and adjoining constituencies, and be elected by a majority vote of the electors on the voters list for those two constituencies. In order for a bill to become law, it would have to be passed in both houses by a majority vote. In order to amend the Constitution, a bill for that purpose would have to be passed with a 2/3 majority of both houses. If a bill fails to be passed after two votes in each house, that bill will be considered by a joint sitting of both houses and will be passed by a majority of the combined number of both houses voting in favour of the measure. We note that this structure mirrors that which exists in Australia. 

We believe that such a structure would promote robust debate and accountability and would provide some check on political power being abused.

This column was submitted to the editor.