OP-ED | Representative of the List enjoys no security of tenure

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By Maxwell E. Edwards

I hold no brief for Aubrey C. Norton. I write only as a detached pure constitutionalist unpolluted by politician’s bias. The seemingly self induced controversy swirling around the statutory office of “Representative of the List” of the APNU/AFC collation and it is political ramifications, raises a somewhat novel, yet acutely interesting point of law, in our electoral constitutional jurisprudence. The point, as I conceive, is this: whether the nomination by a Party or Parties (as the case may be) of a candidate on a Party’s/ Parties’ List of Candidates, made to GECOM, to hold the office of Representative of the List for the purposes of General and Regional Elections, is revocable after the GREs, by a non-nominating party and a substitution made there for by it, to hold that office for the unexpired period of the five (5) years life of the Parliament? Is such revocation and substitution constitutionally permissible?
This question brings into very sharp focus the inter play of the Representation of the People Act Cap. 1:03 (“ROPA”) (especially sections 11,12 and 23); and the Constitution (especially article 156 (3) &(4), and 110) and party majoritarian politics. I answer the question with an emphatic – YES.

I submit that by a majoritarian process a non-nominating party (ex-facie not on the record) with a sufficient relevant interest does posses such power of revocation and substitution; and that our constitutional law knows nothing of a concept of irrevocability of nomination. The nominee – RoL enjoys no security of tenure as the Constitution or ROPA has not prescribed any procedure for removal from office; or duration of office.
First of all, the notion of some unilateral arrogation of the holding of the office of Representative of the List (“RoL”) in defiance of the Party/Parties, is the very antithesis of the “democratic” ethos (entrenched at the deepest level in article 1 of our Constitution) by which majoritarianism underpins our electoral and legislative constitutional architecture, and borders on self-nomination! (as to power of majority see also section 32 of Interpretation And General Clauses Act, Cap. 2:01 incorporated into the Constitution by article 232(9); and section 11(9) (c) of ROPA) and article 184 (3) of the Constitution.

With such democratic underpinnings, it must be an incident of our Constitution and section 12 (1) of ROPA that the RoL holds such unelected office at pleasure or will of those Candidates who nominated him. He is their trustee. As a matter of convenience, he is the statutory conduit between the Parties and GECOM, and the Parties and Speaker of the National Assembly and the Party and a recalled member, (as the case maybe). – on this conduit aspect the local case of Munisar V. Bookers Sugar Estate Ltd (1979) offers an instructive analogy, as one can compare the functioning of the CoP (as to notices etc.) as the statutory conduit under the Police Act in the Munisar case, with the functioning of RoL under ROPA.
So, it is plainly correct, that an anonymous “legal expert” (most probably with section 23 of ROPA in mind) has opined in an article in the Village Voice News“… Granger who is the representative of the list for the APNU+AFC is not an independent agent but rather one who acts on the directions of the Party or Parties” (see VV, Sunday JAN 30 – 5 FEB 2022 at page 3 under caption “Power of Recall lies with parties”).

Every lawyer knows that a trustee is not permitted to act in his own self interest; and that the law exacts complete fidelity; and the remedy for breach of trust is revocation. All of this is so axiomatic that the draftsman did not see any need to make express provision in ROPA for removal, of a rogue RoL.
Secondly, article 156 of the Constitution must be taken, and interpreted as intending that a ROL nomination is revocable where the “party or Parties have lost confidence” in him, thereby avoiding any austerity of interpretation that article 156 (3) (c) & (4) (b) is concerned only with recall/revocation of membership in the National Assembly. Common sense and logic must be applied with interpreting article 156 (3) & (4) avoiding absurdities and incongruities.

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Exhypthesi, unless the event of some voluntary vacancy happens (and a vacancy is created in the APNU+AFC membership in the National Assembly) the RoL who is unwilling to perform his specified conduit functions as provided under article 156 (3) & (4) (in circumstances of some involuntary recall/vacancy/filling) being conditions precedent for the extraction and election of the elected Leader of the PNC/R as the Leader of the Opposition facilitating the functioning office of Leader of the Opposition, as contemplated by article 110 of the Consitution, can be considered to have lost the confidence of the Parties by reason of such unwillingness and protanto his status as holder of that office becomes untenable and inconvenient, and is revocable, and a willing substitution made therefore.

Such induced and contrived frustration and disabling of genuine Opposition leadership in the National Assembly militates against giving true meaning and purpose to the mandate in article 110(1) that “There SHALL be an office of Leader of the Opposition election to which office shall be in accordance with article 184”, and, plainly, cannot be constitutionally permissible, and remain unremediable. Here, is brought into very sharp focus the interplay of the Constitution, ROPA and party politics.
And it cannot be emphasized enough that in this context the ROL is but a mere CONDUIT (albeit a constitutionally indispensable functionary). It is in pith and substance, not the ROL who is doing the recalling of a member, it is the Party. However, in terms of the wording itself of article 156(3) (C) & (4) (b) “… the Representative of the List… issues a written notice of recall to that member and forwards a copy of that notice to the Speaker”. A notice not issued by a ROL would be constitutionally bad in law; so the need for unity of purpose between the RoL and the party/parties he represents.

True it is that the PNC/R simpliciter did not contest the 2020 GREs. The APNU + AFC as a collation did. So, for the purpose of analysis of the question the PNC/R was/is the non-nominating party. But given the notorious fact of the PNC/R being the overwhelming majority (with presumably the overwhelming majority of the 300 – 330 candidates in the APNU+AFC list of Candidates) it is arguable that the extant RoL was, notionally only, the nominee of the APNU+AFC but in pith and substance he was the nominee of the PNC/R as its then leader. Accordingly any argument which seeks to place emphasis on the titled – identity distinction between the PNC/R (on the one hand) and APNU+AFC (on the other hand), is over technical and insupportable as misplaced in this constitutional context of the Party’s loss of confidence in terms of article 156 (3) & (4). Any such distinction is mere subterfuge. And on this hypothesis the PNC/R must be seen, and taken, to have a sufficient relevant interest in revocation and substitution, giving it locusstandi to do so.

The 300-330 persons named as Candidates of the List are the human embodiment of the APNU + AFC for the nomination purpose (seats allocation not here relevant). It is only humans who are pathologically capable of losing confidence in someone. This reality must have been present in the mind of the draftsman- section 12 (1) begins with the words “The persons submitting the list of candidates …”. Indeed, the question might well be asked: is there in fact an APNU+AFC membership (as distinct from supporters and electors for the purpose of the now spent 2020 GREs’)? I think not. Every student of partnership law knows that a partnership (APNU) is but the sum of its individual members/constituents. The APNU+AFC partnership for electoral convenience is no different The PNC/R is the major constituent. Applying the principle of majoritarinism it is PNC/R members being “persons” in terms of s. 12(1) of ROPA who must have the decisive voice. Their sufficiency and relevance of interest is self evident. The APNU+AFC as the nominating party point is nebulous; it fails.

I end with this: the curse of political indiscretion which has afflicted PNC/R leadership has again raised its ugly head in subversion of the workability and workings of the legislative branch of Government in which the Office of leader of the Opposition is integral. A true and purposive interpretation of the Constitution affords a cure and remedy of revocation and substitution by a majority vote (or some other form of expression or signification of loss of confidence) of Candidates on the APNU+AFC List. Time is of the essence. Current leadership of a majority party has its privileges. And one cannot think of our constitutional jurisprudence as being so unresponsive and ill conceived that it would fail to provide a remedy, where there is so obviously, a wrong



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