The Jeff Cumberbatch Column – An Ineffective Law
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.