By Peter Clegg & Derek O’Brien
The British Virgin Islands (BVI), a British overseas territory, has recently hit the headlines for two reasons which, though unconnected, will inevitably be linked in the public imagination. The first concerns the arrest of its premier, Andrew Fahie, in Miami, on drug trafficking charges. The second relates to the almost simultaneous publication of a report by a Commission of Inquiry (CoI) which reveals “appallingly bad governance” and “serious dishonesty“ by elected officials in the BVI.
The report of the COI is an excoriating account of the abuse of power by elected public officials in successive administrations in the BVI over a number of years spanning a wide range of matters, including: the unsupervised dispensation of large sums of public money; failure to register financial interests; the award of government contracts; interference with the autonomy of statutory boards; disposals of Crown Land; and circumvention of the system for granting residency and Belongership status. The COI report makes a number of recommendations to address these issues, by far the most controversial of which is a temporary partial suspension of the Constitution for a period of approximately two years.
If implemented, this will entail the cessation of ministerial government, the dissolution of the House of Assembly, and direct rule by the Governor aided by an Advisory Council. The COI report acknowledges that this is a measure of last resort but considered that the current government could not be trusted to take the steps necessary to improve governance to an acceptable level on the grounds that there had been a history of elected governments in the BVI, ignoring the principles of good governance, “prevaricating over steps to make governance better”, and failing to support the BVI institutions necessary to support good governance.
The suspension of the Constitution and the imposition of direct rule is, unsurprisingly, opposed by the current Government in the BVI (a national unity government, composed of members of Fahie’s Virgin Islands Party and the opposition, National Democratic Party, under the leadership of Natalio Wheatley, the former Deputy Premier under Fahie). Opposition has also been expressed by CARICOM leaders, who have described it as “a retrograde step” with parallels to the “colonial period”. All of this is taking place in the wider context of Black Lives Matter, reparations for slavery (a connection with which has been explicitly drawn by the Vice Chancellor of the University of the West Indies), and Britain’s treatment of the Windrush generation.
The UK government is faced with an invidious choice. However, its previous experience of dealing with poor governance and corruption in the Turks and Caicos Islands (TCI), offers a helpful precedent. Not only are the issues of concern almost exactly the same as those raised by the COI that reported on the TCI almost 15 years ago but also the language used by both CoIs to describe the levels of poor governance and corruption is strikingly similar.
And there is a further parallel, although going back to an earlier period of corruption in the TCI, when in 1985 Chief Minister Norman Saunders was arrested (and convicted) in the US on drug-related charges. Just as the TCI Government was unsuccessful in persuading the UK that they were starting to make the necessary improvements, we do not think the UK government will be persuaded by the entreaties of the BVI government to allow them the time and space to make the necessary reforms but will instead proceed to implement the COI’s recommendation to suspend the Constitution.
The experience of the TCI also offers further lessons for the UK government with regard to the parallel criminal investigation of elected public officials recommended by the COI with any trials being judge-only as the report recommends. The fact that a verdict has still not yet been given in relation to ex-TCI chief minister, Michael Misick, in a trial that began seven years ago highlights the risks of a protracted legal process. A related issue is who should pay for any criminal investigations (or efforts to reclaim corruptly allocated funds). In the TCI, the UK wanted the territory to pick-up a substantial amount of the costs.
There are also a couple of broader issues to consider. First, the BVI’s quest for greater autonomy and possibly, even, independence. Both are probably off the agenda for at least a decade. Trust between BVI politicians and the public, and between the BVI and UK will have to be rebuilt and this will take time.
Second, although the Governor and Foreign, Commonwealth, and Development Office come out of the COI report relatively unscathed, questions should be asked about why the UK did not act sooner to address pretty fundamental concerns about governance in the BVI, and whether the model for overseeing the overseas territories, and particularly those in the Caribbean, should be reviewed. The fact that almost exactly the same breakdown in governance happened in the TCI 15 years ago suggests the constitutional, political and administrative arrangements between the territories and the FCDO and within Whitehall should be reconsidered.
Professor Peter Clegg is the Professor of Politics and Head of the Department of Social Sciences at the University of the West of England, Bristol and Dr Derek O’Brien is a Reader in Law at the School of Law, Faculty of Humanities and Social Sciences at Oxford Brookes University. His main research area is the constitutional law of the Commonwealth Caribbean.
Originally published by The Round Table
