The Jeff Cumberbatch Column – The Franchise is NOT a Commodity

Jeff Cumberbatch – Columnist, Deputy Dean of UWI, Law Faculty, Chairman of the FTC

There are more things in heaven and earth, Horatio, 

Than are dreamt of in your philosophy – Hamlet, Act 1, Scene 5

 While money can’t buy happiness,

it certainly lets you choose your own form of misery … –Groucho Marx

While the title of today’s column should be an undisputed datum, especially given the provisions of sections 6 and 7 of the Elections Offences and Controversies Act, Cap.3 of the Laws of Barbados that criminalize bribery and treating respectively as corrupt practices and the periodical fulminations against these practices by politicians of various stripe and other well-meaning citizens, I am nevertheless willing to wager that there are very few who would be willing to swear that the title accurately portrays the reality in modern day Barbados.

Now, as the blast of war rings in the ears (in the words of the Prime Minister) before the electoral battle is fully and officially joined, the relation between the statutory provisions and the cultural practice has been brought once more into sharp focus.

The law itself is clear. So far as bribery is concerned, section 6(2) provides-

A person is guilty of bribery who, directly or indirectly, by himself or by any other person on his behalf

(a) gives any money or procures any office to or for any elector or to or for any other person on behalf of any elector or to or for any other person in order to induce any elector to vote or refrain from voting; or

(b) corruptly makes any gift or procurement as is specified in paragraph (a) on account of any elector having voted or refrained from voting; or

(c) makes any gift or procurement as is specified in paragraph (a) to or for any person in order to induce that person to procure, or endeavour to procure, the return of any person at an election or the vote of any elector, or if upon or in consequence of any such gift or procurement he procures or engages, promises or endeavours to procure the return of any person at an election or the vote of any elector.”

And, as for treating, section 7 stipulates-

“A person is guilty of a corrupt practice who is guilty of treating.

(2) A person is guilty of treating who corruptly, by himself, either before, during or after an election, directly or indirectly gives or provides or pays wholly or in part the expense of giving or providing any food, drink, entertainment or provision to or for any person

(a) for the purpose of corruptly influencing that person or any other person to vote or refrain from voting at such election; or

(b) on account of that person or any other person having voted or refrained from voting or being about to vote or refrain from voting at such election.

Every elector who corruptly accepts or takes any such food, drink, entertainment or provision is also guilty of treating.”

That the latter section criminalizes the practice seemingly endemic in the region whereby the politician buys the elector a drink and something to eat [rum and roti in Trinidad & Tobago; rum and corned beef in Barbados] should entail our recognition that as M. Jourdan in Molière’s “Le Bourgeois Gentilhomme” who one day realized that he had been speaking prose all his life “without knowing it”, this traditional treating by politicians may have been against the law all along without any complaint.

Of course, the law insists that for one to be convicted of a criminal offence, not only must such guilt be established beyond reasonable doubt but also the relevant law, in the case of doubt, must be construed in the way most favourable to the accused person. That the traditional rum and corned beef is now been rumoured to have given way to the flat screen or Curve television and the I-phone, pad, or pod does not change the law, which seeks to penalize the transaction itself rather than the nature of the consideration, one jot or tittle.

However, the effective enforcement of the relevant provisions would seem to be akin to an impracticability, given that the most cogent evidence against the politician or his or her agent is likely to come from the accomplice to the criminality, the beneficiary of the bribe or treatment, who would be incriminating himself. As quoted above – “Every elector who corruptly accepts or takes any such food, drink, entertainment or provision is also guilty of treating”. It is the same with the offence of bribery-“A person is guilty of bribery who, after an election, directly or indirectly by himself or by any other person on his behalf, receives any money or valuable consideration on account of any person having voted or refrained from voting or having induced any other person to vote or refrain from voting”.

Thus it is that despite the dissuasiveness of the penalties for those guilty of these offences, including the avoidance of the election of a candidate who is found personally or vicariously guilty of any corrupt or illegal practice (section 54) and the striking off of a candidate’s votes from those persons who were bribed or treated, the general impracticability of enforcement lends to a circumstance that the franchise may indeed be treated locally as a commodity for a long time to come.

Moreover, in our culture, generosity of some kind from the political representative or from a candidate for the constituency is expected. If that generosity is made either expressly or, more likely, impliedly conditional on its future repayment by the exercise of the franchise in that person’s favour, whence the telling evidence of a corrupt practice?

The keener reader will observe that I do not have the space today to tackle an even more insidious form of bribery where the franchise itself is not treated as the commodity but rather the politician himself… or at least his influence. Electoral campaigns are patently expensive undertakings, after all.

May you have a blessed and bountiful 2018, dear reader.

.

78 comments

  • Well Well & Cut N' Paste At Your Service

    I still dont think people understand what is really going on at that supreme court, it is even worse than I thought and I have been pounding away at this for at least 5 years…

    …….as things stand right now you have lawyers for CGI Insurance telling judges that they cannot find Peter Harris to settle personal injury claims….but somehow they are still representing Peter Harris although they are claiming they cannot find him….how does that work.

    ….how does Haynes, Roberts and all these low class lawyers keep representing a client they cannot find, why is it a year and more after these lawyers agree to settle a claim on CGI’s behalf, the injured still have not received any checks.

    How is it Frank Alleyne and FSC….cannot regulate this company and their 4th rate lawyers from scamming the people on the island and the supreme court judges..

    How is it Chief Justice Marston Gibson, the judges and the Attorney General can do nothing about this scamming, lying to and abuse of the court and injured people….what kind of supreme court system are they presiding over.

    More importantly….why are these claimants not exposing CGI and Peter Harris constantly in the newspapers for his lies, deceit and fraud…let the whole world see what a criminal he really is, hiding behind lawyers and refusing to pay out Transport Board and other liabilities which are the results of accidents.

    Like

  • Theophiliues Gazerts Snr. 2

    @dAVID
    i usually get here by typing “barbadosunderg” and clicking on the first link. It did not work this time and scrolling down the page did not help. Added the name of a contributor and now I am here. Hope all is well on your end of things.

    Like

  • No issues at our end.

    On Sun, Feb 18, 2018 at 6:31 PM, Barbados Underground wrote:

    >

    Like

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