Court disqualifies 2nd election candidate

Dual citizenship ends Nickolas DaCosta’s campaign

Cayman Brac independent candidate Nickolas DaCosta is barred from standing in the May 24 general elections because he has U.S. citizenship, obtained through family ties rather than by birth, Chief Justice Anthony Smellie ruled Wednesday.

The field of candidates has now thinned from 63 to 61, with Mr. DaCosta the latest casualty in a series of candidacy challenges being heard by the chief justice.

Mr. DaCosta was born and raised in the Cayman Islands but has dual citizenship through his father, who is also a dual citizen of Cayman and the U.S.

Delivering his decision Wednesday, Chief Justice Smellie said the constitution barred anyone with another citizenship from running for election, unless that citizenship was acquired through birth outside the Cayman Islands.

On a literal reading of the document, he said, foreign citizenship acquired by descent, rather than by birth, was not allowed.

“Regrettable as I consider the result to be, I am compelled to conclude that the respondent is not qualified for election,” he said.

Both Solicitor General Jacqueline Wilson, representing the Supervisor of Elections, and Anthony Akiwumi, representing Mr. DaCosta, had questioned whether barring candidates who had obtained foreign citizenship through descent was the intent of the Constitution.

Mr. Akiwumi argued that the tolerance of citizenship by birth but not through descent would amount to an absurdity and could not have been the intent of the drafters of the document.

Chief Justice Smellie said it was not open to him to avoid the literal wording of the document, unless it was clear that the result of doing so would lead to an absurd or incongruous decision. He said that was not the case here.

“It must be accepted that the framers, in seeking to ensure the undivided loyalty (of elected representatives), may have taken a different view of foreign citizenship acquired by descent than that acquired by birth,” he said in his ruling. “They may have been concerned over the risk of divided loyalties fostered through descent, of parental and generational attachments.

“It is not given to this court to construe the subsection to avoid the literal meaning.”

He said the framers of the constitution had created a carve-out that tolerated foreign citizenship in certain circumstances, so he could not conclude that they had overlooked the possibility that someone who acquired citizenship through descent would be precluded from standing.

“It is not open to the court to assume that they didn’t at least consider the issue of foreign citizenship by descent,” he said.

Chief Justice Smellie said he was not required to make a decision on the second element of the argument against Mr. DaCosta’s candidacy – that he had sworn an oath of allegiance to the U.S. to become a Notary Public in Florida – because he had already ruled against him on the first point.

Mr. DaCosta is the second candidate to be excluded from the election as a result of a constitutional challenge.

A second candidate, who Chief Justice Smellie ruled can only be referred to as Candidate X, was barred from running because of a past criminal conviction for a dishonesty offense.

Alric Lindsay, an independent candidate in George Town, is also facing a challenge to his candidacy amid claims he was out of the country for more than 400 days in the seven years before his nomination and that this makes him constitutionally barred from standing.

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