Mark Brantley Petitioner v Hensley Daniel Leroy Benjamin (the Supervisor of Elections) Bernadette Lawrence (Registration Officer for the Constituency of St. John) Kelvin Daly (Returning Officer) Joseph Parry Premier of Nevis) Hesketh Benjamin (Chairman, El Commission) Myrna Walwyn (Member, Electoral Commission) William Dore (Member, Electoral Commission) Attorney General of Saint Christopher and Nevis Respondents [ECSC]
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Jones J. |
| Judgment Date | 21 March 2011 |
| Judgment citation (vLex) | [2011] ECSC J0321-1 |
| Court | High Court (Saint Kitts and Nevis) |
| Docket Number | Claim No. NEVHCV2011/0130 |
| Date | 21 March 2011 |
IN THE HIGH COURT OF JUSTICE
NEVIS CIRCUIT
A.D. 2012
Jones J.
Claim No. NEVHCV2011/0130
In the Matter of Section 3, 12, 15, 18, 20, (3), 33, 34, 36, 96, 101(4) and 104 of the Constitution of Saint Christopher and Nevis
and
In the matter of the National Assembly Elections Act Chap. 2:01
and
In the Matter of the Nevis Island Assembly Election for the Constituency of Nevis 2 (Parish of St. John) held on the 11 th July, 2011.
Douglas Mendes S. C. Dane Hamilton, Kenneth LakeJean DyerDahlia Josephfor Petitioner,
Dr. Henry Browne for 1 st Respondent
Anthony Astaphan S.C. Sylvester Anthony Arudranauth Gossai for 2 nd 3 rd and 4 th Respondents,
Oral Martin for 5 th Respondent
Dennis Marchant for 6 th, 7 th and 8 th Respondents,
John Tyne for Attorney General
On the 4 th day of July, 2011 the Nevis Island Assembly elections were held. The Petitioner Mark Brantley, the Deputy Political Leader of the Concerned Citizens Movement (CCM) was a candidate for the constituency of Nevis 2, Parish of St. John. The first Respondent, Hensley Daniel, a member of the Nevis Reformation Party (NRP) was also a candidate for the constituency of Nevis.2 Parish of St. John.
The results of the elections were declared on the 12 th day of July, 2011 by the fourth named respondent, the Returning Officer. Hensley Daniel, the first named Respondent, received 1,358 votes and the Petitioner received 1,344 votes. Hensley Daniel was, accordingly declared duly elected to the Nevis Island Assembly for the constituency of Nevis 2, Parish of St. John, by a margin of 14 votes.
Dissatisfied with this result, Mark Brantley petitioned the Court for relief on various grounds, the main complaint being the illegal removal of the names of over 200 voters from the list with the result that these persons were not permitted to exercise their franchise on polling day. Thirty-eight of them had declared their intention was to vote for Mr. Brantley.
It might be convenient here to refer briefly to the enactment of the National Assembly Elections (Amendment) Act No. 22 of 2007 and the launch of an electoral reform exercise, whereby the period December 27 th 2007 to 4 th October, 2008 was designated as the period during which all persons registered as voters for a constituency could confirm their registration and be issued with a National Identification Card.
Quite a number of electors embraced the opportunity to confirm their registration with the result that the names of such persons were included on the new list of registered voters. They were issued with National Identification Cards and remained registered unless for the reasons set out at section 39 as amended their names were removed. The reasons as set out are –
A person who is registered as a voter for a constituency pursuant to this Act and who has not voted at two consecutive elections, shall have his or her name deleted from the register of voters for that constituency without prejudice to that person's right to make a new application for registration under this Act.
Notwithstanding subsection 1, a Commonwealth Citizen (not being a citizen of St. Christopher and Nevis) who is registered as a voter for a constituency pursuant to the Act shall have his or her name deleted from the register of voters for that constituency where the Chief Registration Officer is satisfied that that person is no longer resident in Saint Christopher and Nevis without prejudice to that person's right to make a new application under this Act
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(a) he or she has died;
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(b) an objection to his or her registration has been allowed;
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(c) he or she has become disqualified for registration as a voter under this Act or any other enactment imposing disqualification for registration as a voter;
The annual voters list for Nevis and for St. John Parish dated 28th January, 2011 was published by the second Respondent, the Supervisor of Elections and Chief Registration Officer. That was a statutory obligation pursuant to section 43(1) of the St. Christopher and Nevis National Assembly Election act, Chap. 2:01.
Section 43 reads as follows:
"43(1) The Chief Registration Officer shall cause to be prepared and shall publish not later than the thirty-first day of January in every year a register of voters for each constituency.
(2) The register of voters required by subsection (1) shall consist of–
(a) all persons who were registered in the register of voters last published for that constituency; and
(b) all persons whose names appear in the revised monthly list of voters prepared and published under section 46 for the constituency since the date of publication of the registers mentioned in paragraph (a), and qualified under this Act as voters, but shall not include any person who in the opinion of the Chief Registration Officer, appears since the publication of the registers mentioned in paragraphs. (a) and (b)-
(i) to have died; or
(ii) to have become ordinarily resident in another constituency."
There was initially some debate on the part of the petitioner with respect to the date on which the list was published. The petitioner had, however, during the hearing, accepted the publication date of the register as 31 st January, 2011 and that is no longer an issue.
As there was no evidence to the contrary, the January 2011 list referred to hereinafter as the Master List had complied with all the requirements of the Act. In particular included in it were the names of all the electors who had reconfirmed their registration pursuant to the National Assembly Elections (Amendment) Act, 2007. In fact, those persons had been included on the Annual List since 2009 and for all intents and purposes had not been objected to or otherwise challenged.
THE AMENDED PETITION
The Amended Petition was filed on the 3 rd day of August, 2011 and is set out in full herein.
1. The Petitioner, Mark Brantley, is a person who has a right to vote and voted and was a candidate at the Nevis Island Assembly election for the Constituency of Nevis 2 (Parish of St. John) (hereinafter referred to as the said election).
2. The said election was held on the 11 th day of July, 2011 when the First Respondent, Hensley Daniel, and the Petitioner were candidates and on the 12 th day of July, 2011, Kelvin Daley, the Returning Officer and the Fourth Respondent herein, declared that the said Hensley Daniel received 1,358 votes and that the Petitioner received 1,344 votes with 14 spoilt or rejected ballots and returned Hensley Daniel to the Nevis Island Assembly as being duly elected for the Constituency of Nevis 2 (Parish of St. John).
3. The Second Respondent, Leroy Benjamin, is and was at all material times the Supervisor of Elections and ex officio the Chief Registration Officer for the purposes of the National Assembly Elections Act Chap. 2:01 (hereinafter referred to as the Act). As Supervisor of Elections, the Second Respondent is required by section 34(1) of the Constitution of Saint Christopher and Nevis to "exercise general supervision over the registration of voters in elections of Representatives and over the conduct of such elections" and is empowered by section 34(4) thereof to "give such directions as he considers necessary or expedient to any registering officer, presiding officer or returning officer relating to the exercise by that officer of his functions under any law regulating the registration of voters or the conduct of elections." In the exercise of his said functions, the Second Respondent is further required by section 34 (7) of the Constitution to "act in accordance with such directions as he may from time to time be given by the Electoral Commission".
4. The Third Respondent, Bernadette Lawrence, is and was at all material times the Registration Officer for, inter alia, the Constituency of Nevis 2 (Parish of St. John) and is and was at all material times required by section 34(4) of the Constitution to comply with any directions given to her by the Supervisor of Elections pursuant thereto.
5. The Fourth Respondent, Kelvin Daley, is and was at all material times the Returning Officer for the Constituency of Nevis 2 (Parish of St. John).
6. The Fifth Respondent, Joseph Parry, is and was at all material times the Premier of Nevis and is responsible for advising His Excellency the Governor General on the date to be fixed for any election to the Nevis Island Assembly and the date on which nominations for such elections are to be held.
7. The Sixth Respondent, Hesketh Benjamin, the Seventh Respondent, Myrna Walwyn, and the Eight Respondent, William Dore, are Members of the Electoral Commission, the Sixth Respondent being the Commission's Chairman. The Electoral Commission is required by section 33(4) of the Constitution to supervise the Supervisor of Elections in the performance of his said functions.
8. The Ninth Respondent is the Attorney General of Saint Christopher and Nevis and is joined in these proceedings pursuant to section 13(2) of the Crown Proceedings Act in so far as allegations are made herein of breaches of the Petitioner's constitutional rights, or breaches of the Constitution of Saint Christopher and Nevis and the failure to schedule the said election in a timely fashion in accordance with the Act.
9. On the advice of the Fifth Respondent, the writ for the said election was issued by...
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