The Timing of Anguilla’s General Election
1. The COVID-19 pandemic has led to much speculation around the timing of our next General Election. I would like to set out the facts for you as they relate to three matters:
i. the constitutional position on the timing of elections;
ii. what I asked the UK Government to do and why; and
iii. what that means and what it doesn’t mean.
The Constitutional position on the timing of elections
2. Sections 63 (2) and 63 (3) of our Constitution set out the different circumstances in which the House of Assembly can be dissolved – the action which triggers a general election.
3. Section 63 (2) gives the Governor the power to dissolve the Assembly at any time after consultation with the Premier. Section 63 (3) obliges the Governor to dissolve the Assembly if this has not already occurred before the fifth anniversary of its first meeting. This means I must dissolve the Assembly on 11 May 2020 if the Premier has not already asked me to do so before that date.
4. Section 64 requires that a general election takes place no later than two months after the House of Assembly is dissolved. This is irrespective of whether the House was dissolved by means of Section 63 (2) or 63 (3). This means an election must take place before 11 July 2020 at the latest.
Notice of that election would of course need to be made some time prior to that date.
My request to the UK Government
5. None of us could have anticipated the unprecedented impact of COVID-19. Anguilla has already recorded three confirmed cases and, despite the prudent steps taken to protect us, there may be worse to come. No one can predict the future, and no one can guarantee we will escape the impact of the virus we now see taking vicious hold in countries closer and closer to our island home.
6. Under the Constitution, the Governor has responsibility for ensuring that elections are free and fair. In order to deliver that duty I must be confident that three conditions can be met at the point when an election is called:
i. there should be no obvious impediment to any registered voter being able to cast their vote on election day;
ii. the Supervisor of Elections must confirm to me that he believes the poll can be conducted in compliance with regulations set out in the Elections Act; and
iii. there should be credible independent observation of the election.
7. No one knows the course that COVID-19 will take in Anguilla and 11 July is still some time off. It is possible that Anguilla will be in a position that allows myself, and the Elections Supervisor, to conclude that the conditions to hold a safe, free and fair election by 11 July exist. That is everyone’s wish. Equally, the opposite may be true and we need to plan for that now.
8. Faced with this uncertainty I concluded it was sensible to put in place the means – should it be needed – to extend the period by which the election must be held beyond 11 July 2020. I believe a two-month extension is reasonable. This gives us time to see how things develop without unduly delaying the election, which must take place by 11 September 2020.
9. Last week I discussed this matter with the Honourable Premier and the Honourable Leader of the Opposition. Both agreed that in these extraordinary circumstances making provision for a two-month extension was wise and in the best interests of our democracy. In practical terms, this requires a change to Section 64 of the Constitution, but a change that will only take effect if I judge
circumstances necessitate it. I will come back to this last point in paragraph 13 – it is important.
10. Any change to our Constitution requires Privy Council approval through an Order in Council. On 30 March – and with the support of the Premier and Leader of Opposition – I asked the UK Government to seek ministerial agreement to present the required Order in Council to the Privy Council at its meeting on 3 April. The Minister agreed and the Privy Council approved the Order in
Council. The Minister agreed to my request, and the Privy Council approved the Order in Council, which is published here: http://www.legislation.gov.uk/id/uksi/2020/407.
What the Order in Council does
The Order in Council provides for two things.
11. First, in Section 2, it requires me, using my discretion, to set a date for an election to take place no later than four months after the House of Assembly is dissolved. That is by 11 September 2020. I could have asked for a longer extension, but I felt this would not be consistent with the balance we need to strike.
12. Second, through Section 3, I can recall the House of Assembly after it has been dissolved if, in my opinion, I consider an emergency has arisen that warrants this. This is an important provision. It recognises that during these difficult times legislation may be needed, but it ensures that in passing any legislation full and transparent parliamentary process must be followed. That is far
better than the alternative of the Governor enacting legislation on my own using powers under the Constitution.
13. It is important to note that these provisions did not come into force when the Privy Council agreed the Order. By virtue of Section 1 (4) of the Order, they will only take effect should I sign the Order into force. I will only do that if, and when, I judge the circumstances necessitate it. Until that time, the Constitutional deadline by which an election must take place remains as it is now – that is 11 July.
What the Order in Council does not do
14. It’s also worth setting what the Order in Council does not do:
i. it does not automatically change the Constitution – it simply provides a contingency to take proportionate, one-off and time bound action if and when I judge the circumstances require it;
ii. it does not mean there will be no election in 2020 – if I sign the order into force an election must take place before 11 September, if I don’t, the election must take place before 11 July;
iii. it does not deny democracy – it protects democracy by not forcing an election to be held in circumstances in which a free, fair and safe ballot is not possible; and
iv. it does not mean the current government remains in power indefinitely – it sets a deadline by when an election must be held and only allows the House of Assembly to be recalled if I believe it necessary to deal with a specific critical issue. That will be my decision not the Premier’s.
15. These are difficult and challenging times for the entire world. We don’t know what the coming months will hold for us. However, I am firm in my belief that it would have been irresponsible not to have taken this step. Having read or heard this explanation, I hope you will appreciate the reasoning that led to it and the balance I have tried to strike.
16. I sincerely hope that conditions will allow us to hold an election well before 11 September and ideally before 11 July. However, I cannot guarantee that, nor can I at this point guarantee that a further extension beyond 11 September won’t be necessary. If a further extension is required then I will seek a further Order in Council. Let us all pray that conditions will not necessitate this.
Thank you and may God bless Anguilla.