By Joshua Francis–LLB (HONS), LEC, BA, MBA
There has been widespread ventilation of a possible case involving an election petition against Dr. Vince Henderson’s nomination for the pending Grand Bay by-election to fill in the Vacant parliamentary position in the house of Assembly for the Grand Bay Constituency. Some raised the question as to whether the said Dr. Henderson was/is qualified to be nominated as a candidate to contest the said by-election. The legal outcome of such a case rests mainly on whether the captioned agitation is transported to the court of the Commonwealth of Dominica.
The facts concerning the matter at hand thus far appear equivocal and dubious and I am not in any position to crystalize my opinion. However, the matter has generated tremendous public interest because of its potential to have historical political and legislative ramifications.
Dr. Vince Henderson possible ineligibility rest on the thought that at the time of his nomination on November 9, 2021, for the same, Dr. Henderson was at all material times in the employ of the State of the Commonwealth of Dominica as ambassador to the United States of America and the Organization of American States (OAS).
The question which appears to be begging for answers is cradled in the following:
Commonwealth of Dominica Constitution section 32. 1: A person shall not be qualified to be elected or appointed as a Representative or Senator (hereinafter in this section referred to as a member) if he—(f). subject to such exceptions and limitations as may be prescribed by Parliament, has an interest in any government contract and has not, within seven days of his nomination as a candidate for election or, as the case may be, at least seven days before the date of his prospective appointment, disclosed the nature of the contract and of his interest therein by means of a notice published in the Official Gazette and in a daily or weekly newspaper circulating in Dominica;
The heart of the legal question is whether Dr. Henderson was in fact seized in the named diplomatic posts and if he did;
(i) Is such diplomatic post considered a state contract for the purpose of section 32(1) (f) of the Commonwealth of Dominica?
(ii) Is this section applicable after and before the election or after the election?
(iii) Does such diplomatic post hold exceptions within the said section of the constitution of Dominica?
The burden is on the Petitioner to first establish facts and to answer such possible questions, Dr. Henderson will not incriminate himself, see the Green V. Roosevelt Skerrit case (2009).
Any Petitioner in the matter may ask the court to declare that Dr. Vince Henderson’s nomination for the Grand Bay by-election for the upcoming Grand Bay constituency be declared “invalid, null and void and of no legal effect,” and to declare the two independent candidates “the only qualified, validly nominated candidates on November 9, 2021”.
Constitutional supremacy prevails but is left to the interpretation of the laws by our courts. The court does not entertain anything to subvert the constitution or to sacrifice the constitution at the altar of political expediency. Therefore, should the matter be taken to court then answers will suffice.
For argument’s sake, should the matter be petitioned and the court rules Dr. Henderson unqualified, is it then that the independent candidates including Julius “Hand Bag” Gabriel be accorded the sole opportunity to contest the said by-election? The answer to this question is still uncertain; this is because of no expressed provision in the constitution on what recourse should be taken in such situations. Nevertheless, the court is expected to refer to other sources of law to make its decision.
On the other hand, would there be any relief for the candidate who is ruled unqualified by the court of first instance? The answer is yes – he can file an appeal against the ruling of the court.
So far are a lot of speculations as I do not know with certainty the status of Dr. Henderson’s appointment as Dominica’s ambassador. I will not jump to firm conclusions, because at this point in time, I do not know the entire facts of the matter. Those who are interested to further this matter before a court of law hold the responsibility to gather facts and based on findings, determine whether there is a case and its worth.
There will also be another bite of the apple after the election for an election petition on the same point of law and fact if any.
In the meantime, the matter is simply a political football with political heavyweights exchanging views that may be potent or impotent.
EDITORS NOTE-SEE CASE-Charles Savarin vs John Williams in Civil Appeal number 3 of 1995