Elections-Observers
In this file photo the 2017 general election observer team held a media conference to share their findings on the conduct of the general election.

Following Cayman’s May 2017 general election, official observers from the Commonwealth Parliamentary Association issued a report listing 21 recommendations for updating local electoral processes and laws. To date, there has been no movement on them.

While six of the Commonwealth election observers gave Cayman the highest possible marks, they suggested that some local laws governing polls need to be updated.

In one example, the observers wrote: “The requirement that voters must be resident for at least two of the four years immediately preceding registration should be reviewed, as it appears excessive.”

That requirement is still in effect. It is listed under the ‘Who Can Vote‘ section of Cayman’s Elections Office website.

Among the top five recommendations from 2017 was the establishment of complaints procedures to resolve disputes between Nomination Day and Election Day.

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“While there has been a variety of commissions established [including the Anti-Corruption Commission, Human Rights Commission, Judicial and Legal Services Commission, and Complaints Commissioner (now Ombudsman)], most of them become active only if a complaint is raised,” the 2017 report states.

Judicial review is the main avenue used in Cayman to resolve disputes, as in the case last year brought against the government’s planned referendum on the proposed cruise berthing and port facility. While a Grand Court judge ruled that the Referendum Law on the port was unconstitutional, the Court of Appeal declared the law to be compatible with the Constitution.

The government subsequently abandoned the port project after a court battle with grassroots group Cruise Port Referendum Cayman and the onset of the COVID-19 crisis during which all cruise travel to Cayman was halted.

“A complaints commissioner is completely different from a political ombudsman, which is what I think they [the elections observers] were recommending,” said Roy Bodden, an author and former president of the University College of the Cayman Islands and a former elected member of the Legislative Assembly.

“Handling election complaints, that would be the role of a political ombudsman. That person would make a decision, and depending on the acceptance or other resolution, people would not have to go to court unless any of the parties disagreed.”

Given the short time between nominations and elections, he said, there is very little window of opportunity to pursue the courts. “What time is there? None. So that means that the complainer is at a disadvantage. Instead, a political ombudsman could make a ruling.”

In the wake of unverified reports of vote buying on the campaign trail, RCIPS Chief Inspector Patrick Beersingh confirmed that police are reviewing a complaint lodged against Premier Alden McLaughlin, who has dismissed the claim as a sign of “desperation”.

Beersingh heads a special team of investigators focussed on election-related offences. The Elections Act (2021 Revision) outlines offences relating to bribery, treating and undue influence, all of which are subject to a fine of $2,000 or to 12 months’ imprisonment.

“With a police investigation, the results will come out after the fact,” Bodden said, and may not reveal everything.

“From a historical perspective, and from one who was a participant in past politics, we never had this sort of thing before,” Bodden said, referring to the scope of the political process. “Politics now is big business, in terms of the salaries and the perks. Now you are getting younger, educated people willing to forgo careers to get into politics because of attractive salaries and pensions – in many cases more attractive than what you would get in the private sector.”

Campaign finance transparency

Another recommendation by the 2017 observers relates to campaign finance oversight. The observers called for “full transparency of campaign donations and campaign expenditure … and full regular reporting requirements starting well ahead of Election Day”.

Cayman enacted the Commission for Standards in Public Life Law in March 2020 and revised the legislation this year. Among other things, the law requires that annual declarations be made “by individuals deemed to be persons in public life… in relation to details of shareholdings and directorships held in any company or other corporate body; any contract made with any public entity; any company, partnership or association in which money is invested…”

The commission noted that the law “does not require the disclosure of the actual amount or extent of any financial benefit, contribution or interests by anyone,” and it is not directed at campaign financing.

Bodden said campaign financing in Cayman “is completely opaque and a boiling pot of corruption. Nobody wants to reform it because everyone uses it. The government has access to the public coffers, which the people campaigning to remove them do not. And the donors remain anonymous.”

He added, “Firms and individuals hedge bets – here, everybody gives to everybody.  “People are brazen about what they do… not just during election but in the four years leading up to election.”

Livingston Smith, professor in the department of social sciences at UCCI, said, “It is well known among scholars and practitioners that unregulated money poses risks to democracy. Big money, whether commercial or criminal, exerts undue influence, in the sense that ‘he who pays the piper, calls the tune’ – sometimes in the forms of favours and kickbacks such as award of contracts and subcontracts; granting of tax waivers; granting of licences and approvals; protection from the law enforcement; position of influence on public boards and otherwise.

“We need to know because we do not want the control of candidates by financiers, neither do we want dirty or illicit money corrupting the system,” Smith said.

“I believe that transparency in campaign financing is especially important in small jurisdictions to remove any doubt about possible undercover influencing of political behaviours and decisions,” he added.

Prisoners’ right to vote

The observers in 2017 stated in their recommendations, “The blanket ban on the right to vote to all prisoners serving sentences in excess of 12 months, regardless of the nature of the crime involved, ought to be reviewed.”

On this point, Bodden said, “The only exemption should be for prisoners who are serving serious sentences – life, for example. But if you are serving a custodial sentence, it shouldn’t abrogate your right to vote.

“In a jurisdiction where the voting numbers are small, it is critical that every eligible citizen be given the right to vote,” he said, adding that he would like to see a system such as Australia’s, where citizens are required by law to vote, “because we have such a small pool of electors”.

“This is why I’m an advocate of prisoners being given right to vote – prisoners whose custodial sentences are for simple possession of ganja, for example, not murder, rape, capital offences.

“Remember, we talk about rehabilitation, so isn’t enfranchising a part of rehabilitation?”

Participation of women

Another recommendation from 2017 was one seeking to introduce “strong incentives for women to participate as candidates and for parties to nominate at least 30% women to meet international commitments under the Convention on the Elimination of All Forms of Discrimination Against Women”.

There are 11 women on the ballot in the upcoming general election.

People with disabilities

The observers called for revising the Elections Act regarding voting rights for people with disabilities to bring them in line with international commitments and judgments by the European Court of Human Rights.

Mobile voting is available to any registered voter who is on island and unable to visit a polling station on Election Day.

Almost 350 people had signed up for mobile voting by mid-March, Elections Supervisor Wesley Howell told the Cayman Compass.

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