Last week Wednesday, presiding officer of the THA, Vanessa Cutting-Thomas, presided over a meeting of the House which she had called for the election and swearing in (installation?) of a new Chief Secretary. Assemblyman Ancil Dennis was duly elected unopposed and sworn in (installed?) by his colleagues.
So Tobago now has a replacement Chief for Kelvin Charles whom the (Tobago) PNM kicked out of office or who, as they sold it to the public, “voluntarily resigned’’.
But wait a minute! Is Ancil Dennis legally the new Chief? Has Ms Cutting-Thomas not realised her mistake and taken steps to invite Her Excellency to Tobago to properly swear him in?
As I write this column (on Tuesday), news comes that the President has indeed installed Dennis, thus rectifying the error. But in spite of that, we must have a discussion of what transpired in the House to cause me and many others to question the authenticity of the process that yielded a replacement Chief Secretary.
This column is not a court of law, nor is it pretending to be one. It is merely a forum for a concerned citizen to engage with issues that affect us all, including legal governance issues. The election of Mr Dennis is one such issue and it entails an understanding of the THA Act, 40 of 1996. All concerned citizens must become familiar with the Act and express their views as reasonably, if not passionately, as they can. A court may ultimately disagree with us, but we must have our view until then.
Is all a we business!
Since Kelvin took the boot, we have not had a Chief Secretary and so there has been a vacuum in the Executive Council of the THA—from one interpretation of the law. Ancil was rightly elected by his colleagues, but he was not rightly sworn in as CS.
Let’s see how the Act supports this.
Several sections are relevant, but let’s start with section 8, which addresses the matter of election of the CS and Deputy CS after a primary election. Materially, it states “…the Assemblymen shall elect from their number, the Chief Secretary and the Deputy Chief Secretary in accordance with section 11 and following such election, the President shall administer to the Chief Secretary and the Deputy Chief Secretary respectively, the oath of office… .’’
At least two things should be noted here: 1) the election to the two offices comes after a primary election; and 2) it is the President of the country, not the Presiding Officer, that administers the oath.
The section says that the election must be done in accordance with section 11, which sets out the procedure: receipt of nominations proposed and seconded.
In that regard, Ancil’s nomination was proposed by Sheldon Cunningham and seconded by Hayden Spencer.
But since it is the Presiding Officer, and not the President, that swore Ancil in, where is the authority in the Act for her to do so? It seems to reside in section 21, subsection 6: “A person elected or appointed to the Assembly to fill a vacancy shall be administered the relevant oath of office by the Presiding Officer or, where the person is elected to the office of Presiding Officer, by the Deputy Presiding Officer.’’
Upon his ouster, Kelvin left a vacancy, which Ancil filled. And Presiding Officer Cutting-Thomas administered the oath of office to the latter. So it appears that Ancil is rightly in office and all is above board. Until we realise that the context denies that interpretation.
Sections 19-20 provide part of the context. Section 19 addresses the question of how the seat of an Assemblyman becomes vacant, while section 20 deals with the declaration of a vacancy in the membership of the Assembly. And if we wanted a reminder of who constitutes the Assembly, section 5 provides it: 12 Assemblymen, 4 councillors, and the Presiding Officer.
So that when we come to section 21 — the section in which the fateful subsection 6 appears—we get this in its first subsection: “Where the President is notified that the seat of an Assemblyman has become vacant, the President shall…issue a writ addressed to the Returning Officer of the corresponding electoral area for the holding of a bye-election for the election of an Assemblyman to fill the vacancy.’’
So the context is clearly the vacating of a seat by an Assemblyman that necessitates the holding of a by-election. Indubitably!
Kelvin Charles was ousted from the office of Chief Secretary, not from that of Assemblyman. He is still the Assemblyman representing Black Rock/Whim/Spring Garden. Subsection 6 is referring to the Presiding Officer administering the oath of office to an Assemblyman elected in a primary election, or appointed as councillor, to fill a vacancy.
So, unfortunately, until the President swore him in, Ancil did not rightly hold the office of Chief Secretary.
It is stupefying that a party that has been in charge of Tobago for so many years did not understand that you cannot use, as a matter of course, a lower-ranked official to install a higher-ranked one.
This is the latest in the comedy of errors being played out brazenly before our eyes. Tracy’s legitimate election as political leader of the Tobago PNM. Tracy impoliticly demanding Kelvin’s resignation as Chief Secretary and getting it. A by-election not triggered for Tracy to win and enter the House as an Assemblyman. Tracy appointed as a councillor with no chance of replacing Kelvin as Chief when he resigned. Deputy Chief Joel overlooked for the job. Ancil elected as Chief but the Presiding Officer, not the President, swearing him in. The President eventually installing him. Possibly the lowest-ranked option in the House replacing the highest-ranked one (Kelvin). In these Covid-19 times when Tobago needs a tried and tested leader, the PNM electing somebody who can only be a follower.
I close with the observation that, while a Chief Secretary can resign under political pressure, the only section that speaks to his/her resignation is section 35, which states that the Assemblymen must pass a resolution of no confidence in him/her, and then he must resign or else the President must revoke his/her appointment.
So the authority under which Ancil was elected Chief is still open to legal challenge.
• Winford James is a political analyst and a retired UWI lecturer