The Jeff Cumberbatch Column – An Ineffective Law

Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

As the date of the next general election in this country draws nearer, many people are expressing their indignation that the outcome in one or two of the constituencies might be determined not by the inherent worth of the candidate nor by the likely value of his or her parliamentary contribution to the common weal, but, to put it crudely, by the amount of votes the candidate is able to acquire by the purchase of an elector’s franchise for filthy lucre.

It would be difficult to find anyone who is in support of this mode of electioneering [I have already commented on it in this space under the self-explanatory title, The franchise is not a commodity, there have been numerous letters to the editor in both newspapers and some years ago, a number of concerned businessmen spoke out publicly as a group against the practice.

Further, in the early hours of the day following the 2013 general election both the current Prime Minister and Attorney-General railed against flagrant instances of this misconduct that they had perceived during the hours of the election.

What is peculiar in this context is that there already exists legislation that prohibits and criminalizes this form of conduct as a corrupt practice. This law has been in existence for the past forty-seven years in the form of the Election Offences and Controversies Act, Cap. 3 of the Laws of Barbados. What is even more alarming is that the penalties provided by the Act for this corrupt practice are suitably dissuasive. According to section 52-

Where, on the trial of an election petition, it is proved to the satisfaction of the Election Court that any corrupt practice was committed by or with the knowledge and consent of any candidate at the election, the report of the Election Court under section 46 shall state that the candidate proved guilty of that corrupt practice is personally guilty of that corrupt practice and where it is proved to the satisfaction of the Election Court that any illegal practice was committed by or with the knowledge and consent of any candidate at the election, the said report shall state that the candidate proved guilty of that illegal practice is personally guilty of that illegal practice.

And section 54 –Where a candidate who has been elected is reported by the Election Court [to be] personally guilty or guilty by his election agent of any corrupt or illegal practice his election shall be void.

There is further similar provision in section 55 of the statute. Still, despite these clear provisions and their significantly negative consequences for the offender, the impugned practice seems likely to continue for the upcoming general election.

In a not unconnected context, there is a popular, although sadly misinformed, view that the local defamation law is “archaic” (in fact it is one of the more informed in the region, although cribbed by local culture, self-censorship and judicial restraint). This misperception is based partly on the absence in local law of the concept of the public figure that is able to maintain an action for defamation in a circumstance only where it is possible to establish malice on the part of the publisher of the allegedly defamatory imputation. It is also derived from or attributed to the not unreasonable assumption that since any reform is most likely to be legislative rather than judicial, the ones responsible for amending the law and thereby increasing the freedom of expression enjoyed by the people are the very ones that would be likely to suffer most from such an amendment, given the high incidence of lawsuits for defamation by politicians in the region. This catch-22 circumstance does not augur well for any sooner reform in that area.

It would be churlish to make the leap of logic that would assume that a similar legislative reluctance exists in the context of the law concerning transactional voting. In the first place, as argued above, the law is already there. Second, it is not the members of Parliament themselves that are responsible for its enforcement. The question begs asking therefore, why has this law proven ineffective over such a long period despite its clear provision for liability and its dissuasive sanctions?

In an article published in 1981 in Volume 15 of the Valparaiso Law Review, Anthony Allot, a Professor of African Law at the University of London, argued that while the general test of effectiveness of a law is to see how far it realizes its objectives and fulfills its purpose, this is subject to the actuality that as the law acquires a history those who apply it, follow it or disregard it re-shape both the law and its purposes to correspond to their power and their influence. As he sees it, compliance with a law is more probable if the pattern of behaviour prescribed by the law corresponds to, or at least does not fundamentally contradict, the pre-existing behavioural patterns in the society.

I am not old enough to write with any degree of authority as to the electoral campaign culture that existed in 1971 when this statute was enacted, but I have heard enough of the rumours of the corned-beef-and-biscuits treating of those days to suspect that this legislation at the time of its enactment would have conflicted with the pre-existing behavioural patterns in the society as Allot suggests.

After all, much as we claim to abhor the notion of a cash payment being utilized as the consideration for the elector exercising his or her franchise in the payer’s favour, the statute does not seek to restrict the nature of the offending consideration to cash or indeed any particular form; thus the fabled offer of corned-beef-and-biscuits of yore would have satisfied the test for a corrupt practice. It is urged that this politico-cultural trait, when combined with the populist hagiolatry of the politician as less of an agent or representative than as an facilitator of one’s economic advancement, the absence of any particular in the statute as to the time when the treating should occur and, perhaps most important, the difficulty of establishing the commission of the offence all serve to render the law proscribing vote-buying as a mere toothless injunction clearly at odds with the national ethos. In a word, ineffective.

36 thoughts on “The Jeff Cumberbatch Column – An Ineffective Law

  1. ‘………argued that while the general test of effectiveness of a law is to see how far it realizes its objectives and fulfills its purpose, this is subject to the actuality that as the law acquires a history those who apply it, follow it or disregard it re-shape both the law and its purposes to correspond to their power and their influence. As he sees it, compliance with a law is more probable if the pattern of behaviour prescribed by the law corresponds to, or at least does not fundamentally contradict, the pre-existing behavioural patterns in the society.”

    A brilliant analysis by the African studies lawyer Allot…as well as Jeff,

    Small island politician’s behaviors still conflicts with any regulatory legislations and laws existing in their parliaments today, hence the reason they and those who help them break those laws….will not cease and desist until forced to do so….with their decades of ingrained and embedded tunnel vision, narrow minds, limited intellect, penchant for corruption and lack of moral compass, it is not in their best interest to do so..

    …..there exists an inability in all of them, both politicians and bribed voters, to see anything else, to see the broader and bigger picture, to see a better more organized and progressive, less illegal way….or to articulate accordingly intellectually.

  2. @Jeff

    You have lived long enough in Barbados, surprised you do not know, BARBADOS HAS A RULE FOR EVERYTHING, ENFORCEMENT OF NOTHING.

    It’s wakeup time, the rooster has crowed.

  3. In layman’s terms…politicians break all parliamentary laws with their aider’s and abetters then use existing parliamentary laws to cover up their crimes, eg defamation laws….etc…

    ,.,,,,there is no going forward for the island because of that practice…no progress can be achieved, it has been happening for 50 years, it’s repulsive, regressive and criminal on the part of politicians and their enablers in the business community and gullible, unaware population of voters…everyone will continue to go around in circles.

    ..that criminal practice will continue to be an ongoing threat to the population….unless the politicians who have practiced such destructive behaviors for the last decade and long before are completely purged from the parliament, in their narrow minds it works for them, had worked for previous politicians for decades, so their is no need to change it.

    Purge them all out, the problem is not the myriad achiac laws to be repealed and amended, there are in place sufficient laws availablento enforce, the problem is the backward, selfish politicians who currently exist.

  4. Jeff

    A truly independent electoral commission is required to ensure free and fair elections. The laws necessary to ensure that corruption is to a minimum are being observed in the breach because both parties like it so. I will give an example:

    It is an offence to spend more than $10 per elector in the particular constituency. The election agents are required to submit returns of the election spending. That is complied with to the extent that there would file something. However, a review of the returns shows that there is no attempt to enforce the law. Candidates can submit anything as long as they submit something and nothing happens.

    Mind you, an MP can lose his seat and be barred from contesting future elections for filing a false return. I have seen returns where MPs failed to declare that they had election posters or even a telephone in the office, even though the number was included in their campaign literature.

    The problem is that the persons who are employed to oversee the process are appointed by the same politicians that they are supposed to regulate. Also, the Electoral and Boundaries Commission has five members: three appointed on the recommendation of the Prime Minister and two on the recommendation of the Leader of the Opposition. My understanding is that the current chairman is a retired registering officer, who hails from St. John and part of whose house was or is the DLP constituency office for St. John.

    Our democracy is nothing more than a sham.

  5. @Caswell Franklyn February 25, 2018 at 8:27 AM “It is an offence to spend more than $10 per elector in the particular constituency.”

    This is part of the problem. $10 per elector is a ridiculously small sum. Even if the campaigning candidate took the bus when canvassing a district and he/she had to take 2 buses to reach an elector he/she would have already spent $8. Even if the candidate becomes hungry while out campaigning and wishes to buy some corned beef, rum and biscuits $10 no longer cuts in in any rumshop in Barbados.

    So how do we expect the candidates pay for stages, lighting, transportation, advertising, public relations professionals etc.?

    Generally I am not one to defend the political class, but in this instance aren’t we the electorate expecting the political class to build bricks without straw?

    In effect aren’t we being unjust slave masters to the political class?

    Exodus Chapter 5, verse 6 “You are no longer to supply the people with straw for making bricks; let them go and gather their own straw.but require them to make the same number of bricks as before, don’t reduce the quota. Exodus Chapter 5, verse 6

    It is way past time that we raise the amount of money spent per elector from $10 to whatever it costs to run a modern election campaign.

  6. Dean Jeff, on Sundays as I read your essays I am often blown away by your very definitive remarks which you wrap in some lovely, very respectful prose.

    Based on the nicely clothed harsh critique above the question that tickles the mind is: what can a law professor do to arrest the bad acts of his fellow citizens who he suggests gleefully accept any means of “economic advancement” from their political representative rather than merely look to him/her for suport of the citizen’s own views on moral and social affairs; and how can he help to improve the dire situation where those same representatives continually flaunt the election laws with the consent of regulators!

    As an important figure in the development of our legal system yours is a heavy burden, seems to me….

    …. not only are the laws ineffective but as you clearly insinuate we Bajans love it so. We are corruptible and now have an entrenched ethos to seek handouts.

    Damningly strong insinuations (true of course).

  7. Dr. Simple Simon

    Your comment demonstrates your misunderstanding of the reason for placing a limit on election spending.

    Anyone who is qualified and willing to serve should be able to offer him/herself as a candidate. Access to large sums of money to run a campaign could possibly deter a person who has the ability to manage the affairs of this country from being a candidate. When that happens, the country ends up with an assortment of dopes as presently obtains.

    It is an offence to donate money to election campaigns and not declare it. I well recall Bizzy Williams stating that he contributed to both parties. I am still to see where he declared those donations to the Supervisor of Elections.

    Do you want a situation where big money can legally buy our politicians. Mind you, the monied class already hides and buy politicians. What would you think would happen if it was legal to buy them?

    If there are 6,000 voters on a constituency voters’ list, a candidate can legally spend $60,000; shouldn’t that be enough?

  8. I don’t want bought and sold elections either. And yes I understand that the cost deters good competent people from running. And yes I understand that because election campaigns have become so expensive, this permits the monied class to have undue influence over the political class, and therefore undue influence over us, the electorate.

    And “no” I don’t think that $60,000 is enough. When was the $10 per elector set? And have we taken inflation into account? $10 today cannot buy what $10 bought ten years ago, or fifteen years ago, or twenty years ago.

    Maybe we should look at previous electoral returns, find out what the real costs are, and out of tax money fund the campaigns of all candidates, up to a maximum of say X dollars, and also forbid candidates from accepting goods or services from anybody. Maybe, just maybe this will release the political class from the python-like hold of the monied class?

    Or maybe I am being very, very naive.

  9. @ Wily Coyote February 25, 2018 at 8:02 AM #

    You have lived long enough in Barbados, surprised you do not know, BARBADOS HAS A RULE FOR EVERYTHING, ENFORCEMENT OF NOTHING.

    It’s wakeup time, the rooster has crowed.

    Pray tell when and where did this rooster crow.

    You actually tink dat all dis noise of wuh used to be called the silly season but now called de really igrunt season gine mek a diffrunce ’bout hey? We jus’ singing fuh we suppa either from George or Roebuck Street.
    We gine in uh polling booth to change or keep de identical horse. unless de two headed monster is destroyed politically dey aint nuh hope fuh ’bout hey.

    If yuh got time, read wuh de lawyers saying ’bout de appoinment uh judges. In case yuh miss um, leh muh give yuh a quote:

    “He (an attorney) explained when the Barbados Labour Party came to power in 1976 it had promised to change back the constitution , but never did. So from then it was tit for tat. When the Bees in power they appoint judges, and when the Dems in power they appoint judges.”

    Ah gine wait pun yuh to tell muh more ’bout de changes dat coming and de rooster dat crowing . Uh checkin’ muh pailing rite now.

  10. Jeff is again sadly off base.
    There should be no legal penalty for accepting a bribe from a politician …..because anyone foolish enough to value their franchise thusly, FULLY deserves the politician that they will get.

    You simply CANNOT legislate wisdom.
    There is only ONE source for that commodity.

    Is there a law against a man spending his earnings buying rum and spending the rest with wild women – while his family at home suffers?

    Is there a law against eating shiite food and drinking shiite sodas – when we all KNOW that these will redound to massive medical complications down the road?

    Where is the law against basically abandoning ones children …by both parents being out to work all day …and sometimes night too?

    The damn law cannot even address clear, open, low-class, day-light robbery – by no less a person that the speaker of the highest court of the land……and Jeff is lamenting its ineffectiveness against brassbowlery as practised by mindless morons imitating human beings.

    Let us count this as a space filler ….before the coming block-buster article on what ‘success means, and how Barbados can achieve some measure of it’….

  11. Mr Franklyn, at 10:54 AM, you are dancing and singing sweetly to a tune apparently only you can hear!

    You cite the law and regulations quite accurately as usual but for all practical purposes as the Dean alluded and as you bluntly said these laws are maintained in their abeyance only..

    That tune in your head lulls you to compose the facetious “Do you want a situation where big money can legally buy our politicians. Mind you, the monied class already hides and buy politicians. What would you think would happen if it was legal to buy them?”

    Ehhh! You know it’s already ‘legal’ so not sure what funny tune dat is!

    No disrespect intended and none should be taken but pray tell bro “If there are 6,000 voters on a [union] voters’ list” for a very top position on a regional or even a local body when don’t folks eventually spend close to or in excess of 60,000 to be elected….and you see it enough for a general election.

    The Simple Simon has not misunderstood …frankly the original rule of $10 per voter was absurdly ridiculous in the first place because clearly it automatically and deliberately placed a burden among the working class politician candidate to be BEHOLDING to the wealthy monied class.

    Surely you are not actually whistling to that subversive tune or so misunderstand the realities!

  12. “No person shall, without the permission in writing of the Licensing Authority, (a) affix to the front of a motor vehicle any letters or figures other than those required by the act, or any lighted lamps other than the headlamps and side lamps or such other lamps as may be required by these regulations; or
    (b) affix to the rear of a motor vehicle or trailer any letters or figures, other than those required by the act, or lighted lamps or reversing lights, or stop lights, other than the lighted lamps or reversing lights or stop lights required by these regulations.”(Quote)

    Does this apply to company vehicles?

  13. Laws and norms will not help in Barbados. You can enact any law you want in these non-developing countries – they are NEVER enforced. NEVER ever.

    Only a change of attitude will help. AFTER that, maybe, a people´s court with capital punishment might work to clean the island and to dry the swamp.

  14. @Hal Austin February 25, 2018 at 2:02 PM #

    Good point, law means BWA vehicles, BL&P vehicles, Ambulances, Police vehicles, Tour buses, KFC vehicles etc, etc, etc as these are all included under the act. Barbados has a RULE for everything, enforcement of nothing and now obscure & obnoxious Licencing Authority Act. All of this SHIT rhetoric to try and prevent a few RH signs, good to see Barbados has such an abundance of resources to spend taxpayers dollars on frivolous endeavours because the DLP Party takes offence to RH signs.

  15. Hal, this is another view.
    Electioneering is around the corner. Will owners of vehicles have to get individual permission to stick posters on vehicles or political parties be responsible for all? Waiting to see the outcome.

  16. Tell me Why February 25, 2018 at 5:15 PM #

    Spot on. This banana republic is running out of bananas. It is the disease of powerless politician, they turn on their own people.

  17. @Hal Austin – It is beyond amazing that the Royal Barbados Police Force has the time and manpower to harass citizens for affixing a sticker to his/her vehicle that carries the RH and yet do not enforce the removal of other stickers. Does the law also prohibit stickers on the side of the vehicle? Does this mean that a person by the name of Richard Hoad or such would be arrested for initial profanity by using their initials? When Rome is burning and a government finds the time and resources to peruse such trivial matters, then all is really lost. Left to me, were I the manufacturer of these stickers, I would have the words STOP THE REALLY HORRIBLE LITTERING printed in 180 point font (or larger). I would then reduce the “eally” and the “orrible” to 6 point font. Maybe some election stickers should reflect this sentiment and say GET RID OF THE DEAR LOVING PARTY with the “ear” oving” and “arty” similarly reduced in font size.
    For a country in which politicians say the vilest things about each other with impunity and where profanity has become the common language of man, woman and child, this Puritan facade is an insult to an educated population.

    While we are talking about state control and police overreach, I am told that the local Gestapo is now reporting motorist if they pull to the side of the road and use their cell phones “while the engine is running”.

    When they get the time, maybe they can start looking for the importers of guns too.

  18. Hal

    You are so right! That is why these idiots got assistance in the form of military equipment from the Chinese. The equipment as far as I can see is designed to be used against the local population. Why would the need water cannons?

    There is an urgent need in Barbados for buses and garbage trucks but these idiots opted for military equipment to crack heads and shoot people.

  19. FearPlay

    You are onto something. The Police needs assistance from the Barbados Defence Force because it lacks the manpower but it has time to engage in the trivial pursuit of removing RH from the rear of vehicles.

  20. In an age when everything is recorded on cellphones and broadcast island wide, can we please have numerous examples of blatant vote buying instead of school fights at bus stops and the aftermath of traffic accidents. Let us give the evidence being begged for by our so-called ‘prime minister’ and wipe that pompous supercilious smile off his nasty face.

  21. While we are at it, when is officer Gittens going to face the courts for the killing of his neighbour?
    We still have not been told if the gun used was a service weapon or a privately owned one? If it was a service weapon, did he have permission to take it home? If it was privately owned, did he have a permit?
    Is he on full pay? In the meantime, questions should be asked in the media and in parliament? Who is the local member of parliament? Why is this member not taking an interesting in the killing of a constituent?

  22. ” The question begs asking therefore, why has this law proven ineffective over such a long period despite its clear provision for liability and its dissuasive sanctions?”

    Excellent article Jeff and the gist effectively, yet diplomatically states the real issue i.e. the immoral culture of the community.

    Bajans will talk from now to the end of time, but the reality is, when they are on the benefit side, they do not care.

    Corn beef and biscuits has traversed into an ipad and flat screen TV.

    Morally bankrupt community.

    Add to that, ‘know a man’ culture, is very strong here.

    Bajan elections are dirty.

    Full stop. But, as Jeff rightly notes and Bush Tea, despite misunderstanding Jeff’s overall point, which he actually agrees to, enforces., Bajan culture is the overriding factor in determining application of the law.

    I would say however, that Jeff can go back even further than 1981 for references as to this.

    Surely that is essentially what Common Law is, the accepted standards and behaviours of the society? What is accepted is the norm, the yardstick and hence, the law?

    • @Crusoe

      Good comment. We are trapped in a mindset that it is the political class that has to lead the way. Is is Pacha who continues to preach that it starts and ends with us.

  23. ……..she said that the abolition of the death penalty was one of the key priorities of the EU’s external policy, and that there was no scientific evidence to support that the death penalty deters crime more effectively than other punishments…..(Quote)

    When is the EU going to challenge the US on the death penalty?

  24. @Hal Austin February 26, 2018 at 2:41 AM “Why is this member not taking an interesting in the killing of a constituent?”

    You surely have heard the saying “dead men tell no tales”

    A second is like unto it.

    Dead men do not vote.

    Therefore a dead constituent is NO LONGER a constituent.

    And wunna can cuss me.

  25. @ Jeff

    Maybe the ethos has moved on and the legislation is lagging far behind. Even the value of the bribe has increased by a multiple of twenty. Is it time to” up the thing” or”dump the thing”?

  26. notwithstanding all that Mr Cumberbatch has said as to the existence of laws through which the guilty can be tried by the fact is that THERE WILL BE VOTE BUYING DURING THIS ELECTION AS THERE HAVE BEEN IN THE PAST AND WILL BE IN THE FUTURE

    Until there is action against the perpetrators IT WILL CONTINUE

    Either it is recorded by the people whose votes are being illegally solicited and then that evidence is brought to a court of law or all of these useless speculations will follow the same
    pathway as did the remonstartions of Fumbles and Adriel Nitwit.


  27. People will report vote buying only if the attempted buyer is from the ‘opposite’ party.
    Buyer knows the yardfowls of the opposite party and will act with caution.
    A lot of the discussion is academic.

  28. @ The Gazer

    That is precisely the point.

    When all of the demonaic labour prostitutes DLP candidates loose their seats the will all of them say that they have seen vote buying.

    What we can expect is that the DLP judges that they are hurrying up to appoint will hasten to hear cases that support their assertions

    The thing is not so much that they will NOT BE THESE CLAIMS but what will be the outcome of these imminent claims

  29. Piece, you mean the very imcompetent, but vocal registrar, daughter of a DLP stallwart, with her 3rd rate exam, who is now acting as a justice at the Supreme Court of Barbados?

    Marston Gibson knows no shame when it comes to quiz games on Independence Day, leisure and twisted appointments. The man has no limits. N o l i m i t s. What a disgrace for Barbados.

  30. Piece…that is definitely an issue, I understand lowlife house negro scum ministers like Lashley visit judges at their homes to get certain outcomes in personal injury and other cases, you know, the companies like CGI Insurance that would seek to bribe lawyers, judges, doctors and house negro government ministers to get judgements in their favor and deprive injured claimants of compensation.

    If I ever come across any such travesty in any of the cases that I know about personally and file(s) I have sccess to…I will broadcast it to the world and name ever evil mofo involved.

    As I told Caswell…Harris has no clue which files I have access to, but he better pray his nasty tactics and bribery, corruption criminal actions involves or extends to none of them, or Harris and his fellow criminals will be seeing info published long before they are ready to view them publicly.

  31. Dear Concerned Citizens,

    I, De ole man wid De grandson who loves designing de Stoopid Cartoons pleads guilty and accepts partial responsibility for de RH stickers and de police frenzy associated with the avid removal of the same.

    Many of you are in a state of surprise over the relentless idiocy of the Demonic Labour Party as it relates to 5heir fear about the RH sticker phenomena.

    But de ole man put it to wunna dat among the many tings dat de ole man has written, i is say dat the DLP fears, as well they should, the efficacy of a sticker, a flier, or a T-shirt.

    It is what is called “right up in your face” but whereas dem using CBC Reporties Lies to disseminate lies the fact is 5hat campaigns which take a demeaning or derogatory graphic and Whatsapps that message to every one of your contacts achieves 750% more exposure and impact that their purchasing of votes.

    De ole man shall do an experiment over the next two weeks

    I shall call it de RH experiment

    And I shall detail it here BEFORE I LAUNCH IT.



    I shall use some of the topics that are here on BU as the pictorial matter of the Stoopid RH Cartoon experiment.

    De ole man wants wunna to monitor de count on the graphic counter and watch what that simple limerick will do.

    Wunna need to understand the mind of the average Bajan and what simple message will do to eradicate the existence of the DLP off the political landscape of Barbados

    Jes gi De ole man a few days causing de grandson in de Caymans wukking wid De bank peeple dem

  32. Ramsay, who has been on remand for five years, was sent back to HMP Dodds pending sentencing.(The Nation)

    Call this a democracy? A five-year remand is a sentence.

  33. Underscoring Barbados’ enhanced relationship with China and its “deepened cooperation in the field of law enforcement and security”, Yan Xiusheng hoped that the “Barbadian Police Force will continue to support and facilitate Chinese nationals’ stay, employment and living here in Barbados and ensure the safety of the lives and property of local Chinese companies and community”(Quote)

    Barbados is slowly, and by stealth, becoming a theatre of geopolitical warfare. On the one hand, we have an increase in local military and police working with US, Canadian and UK military and law enforcement agencies, while on the other the Chinese are also increasing their contact with the relevant local agencies.
    From donating machinery and equipment (which will obviously be accompanied by relevant training) to donating two cheap Segways to the police with a ‘quiet’ word of advice about the price to be paid for this cheap equipment.
    All this without an explanations to parliament, no discussions with the people, and days away from a general election.
    What do the various political parties think of this ‘soft’ Chinese diplomacy?

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