Some lawyers take certain court cases either to improve their profile, or to make money, or both, but for Zahidha James, attorney for the United Workers Party (UWP) in the 2019 election petitions matter, it was neither the prestige nor the money that prompted her to take that case; it was something a lot more personal.
“I was very moved by what I saw on a Facebook live feed sometime during the last week of the election or a couple of days before, where we saw peaceful protesters being teargassed,” James revealed during a recent interview with Dominica News Online (DNO). “The people were Dominicans–men, women, and children–simply asking for the election officials to comply with what are clear electoral laws and to prevent breaches of clear electoral laws. These people had perfectly legitimate concerns which have now been validated by our apex court, the Caribbean Court of Justice.”
James continued, “Instead of meeting those concerns with reasonable assurances or honestly addressing lawful requests for a fair elections process, the people were met with violence. Etched `in my mind, is the image of children being teargassed in the crowd on live feeds.
According to the Barbados-based Dominican, that scene emanating from the streets of Roseau on the eve of the elections was deeply disturbing.
“And it occurred to me that I owed it to those people, as a citizen of the Commonwealth of Dominica and the wider Caribbean, to get involved so that everything they suffered would not be in vain and importantly, for things like that not to repeat themselves. Everyone deserves and should want a well-functioning democracy. When a government chooses chemical weaponry against its own citizens over ensuring fair elections, that is a crisis point and it’s terrifying,” James stated.
And so, when the UWP challenged the 2019 election results which had produced an overwhelming 18-3 victory for the incumbent Dominica Labour Party (DLP), Zahidha James came on board as counsel. A number of petitions were filed alleging several irregularities in the election process and seeking to have the court overturn the results in St. Joseph, Mahaut, Morne Jaune, La Plaine, Castle Bruce, Salybia, Roseau Valley, Roseau Central, Roseau South, and Wesley constituencies.
The matter eventually ended up before the Caribbean Court of Justice (CCJ) as in October 2020, the petitions were struck out by Justice Rawlston Glasgow at the High Court in Roseau on the basis that they lacked “the necessary details or specificity to disclose causes of action against any of the respondents”, and an attempt to get the Eastern Caribbean Court of Appeal to reverse that decision failed because the court ruled that it had no jurisdiction to entertain the appeal.
At the CCJ, the justices also turned down the petitioners’ appeal for want of jurisdiction, but they offered some scathing commentary on Dominica’s electoral process which, according to James, was tantamount to a win for her clients even though their primary objective of having the 2019 elections overturned, was not achieved.
“The short outcome is that the CCJ felt that it had no authority to hear us or to send us back to the court of appeal or the High Court, for the matter to be heard fully…and that was based on a constitutional provision [Dominica] that prevents the CCJ from having that type of power,” James stated. “So, essentially, we lost on a technicality and not on the substance and legitimacy of our claims that the elections were fatally flawed”
She said it was for that same reason, that the CCJ allowed the Court of Appeal’s decision to stand.
James points out that in arriving at their decision, the CCJ was able to hear the grievances and get a lot of information from both of the parties involved and because of that, was able to make a determination on what the Justices described in their judgement as the unlawfulness of the 2019 elections and hence, their statement on the matter.
“And that is where we believe we were successful because ultimately, those were the declarations that we were after, declarations as to the unlawfulness of the 2019 election and they were able to give that to us even though they didn’t have the power to do more,” she contended.
In the judgement, the CCJ Justices express concern about the manner in which the 2019 election process was conducted and caution that future elections in Dominica “ought not to proceed with these or similar taints.”
The Justices go on to point out that the Court of Appeal may arguably have had jurisdiction in the matter on constitutional grounds and that irrespective of the constitutional restrictions that the appeal judges cite as the basis for their decision, “there can be no doubt that this particular decision conclusively pre-empted any further inquiry into arguably unlawful conduct by the election authorities that potentially went to the root of free and fair elections.”
Another section of the judgement speaks to the conclusion by original trial judge, Justice Glasgow, on the preliminary evidence placed before him that, in relation to the 2019 general elections, there was a “patent non-compliance” with section 17 of the Registration Act which deals with the use of the correct electors list.
“The CCJ found that the non-use of the correct list is such an egregious matter, that it needs to be investigated, regardless of the Honorable Justices finding that they don’t have a jurisdiction to hear us and regardless of the election not being overturned, they’re saying explicitly that needs a special inquiry and a special investigation and that’s a very serious concern for all of us,” James pointed out…”They [The CCJ] are concerned for the people of Dominica and how any repeat of what happened in 2019 might affect the psyche of Dominicans and proper governance and control of the country. They do make these very serious references. I also note that the CCJ offered some guidance as to when the Court of Appeal can hear petitions facing a similar strike-out application despite the constitutional restrictions. This will be a useful tool in the future.”
The government of Dominica was not happy with the CCJ’s criticism of the country’s election process and in a statement issued by the Attorney General’s Office, expressed its “disappointment and concern regarding certain gratuitous comments”, made by the Caribbean Court of Justice in its judgment in the election petition matter. The AG’s Office alleges in its statement that the CCJ’s comments, which were based on “nothing but bare allegations on which no findings have been made by any court of law,” caused unnecessary discord in Dominica. The government called on Dominica’s highest appellate court to “take appropriate steps to clarify matters and avoid a repeat of this kind of gratuitous commentary on political affairs.”
In response, James said that she was glad that the AG’s office acknowledged the scathing criticism of the CCJ regarding the ill-conduct of the elections and its unlawfulness but was disappointed it did not offer apologies for the same and assurances that such failures will not recur.
“The fact is, the CCJ did not come to its conclusions in a vacuum. It was based on the findings of the High Court judge that there was blatant non-compliance with election laws. We just had a terrible decision from a High Court judge who refused to hear us,” James insisted. “My hope is that with the passage of time, the AG will come to understand that his comments were based on emotions of being laid bare but will do the right thing going forward.”
She added, “I hope that our elections officers will take serious stock of the CCJ’s comments and do what needs to be done so that we never have illegitimate elections again as we did in 2019. I am confident in any event that the people of Dominica will hold their elections officers accountable and monitor them closely, being mindful that we have the backing of our highest court.”
James said she shares very deeply, the CCJ concerns and believes that Dominicans deserve better.
“I think anyone who seeks higher office or who holds higher office in Dominica understands that people deserve better. Persons should not have to be teargassed for simply asking for compliance with basic electoral laws,” the defense lawyer lamented. “And so, I’m satisfied that having gone all the way to the CCJ, we now have tools to help us ensure that these things never happen again…I want to encourage everyone to remember that powerful people are only as powerful as you make them. They’re not as scary as you think”.
*To anybody who is interested, the CCJ proceedings of this matter are available on its website and on YouTube: https://www.youtube.com/watch?v=nb5k7ClA40c