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Open Statement To the Media by Un-named Author

The following should be of concern to all stakeholders of Social Security in St. Kitts and Nevis. This includes the government along with organizations that represent the interests of employers and insured persons. It should also be of keen interest to the media which represents the fourth estate in the democratic construct of St. Kitts and Nevis. As at 1st April 2023 and since November 2022 (under the ministerial oversight of the Prime Minister and Minister of Social Security Hon Dr. Terrence Drew) the Social Security Board has not been properly constituted. The legal effect of this is that any and all actions undertaken by anyone and purporting to be done in the name of (and as) the Social Security Board can (if challenged) be determined by a court of law to be null and void and tantamount to being illegal. Since November 2022, six (6) persons who had legitimately formed part of the panel of members of the Board up until that time (and whose terms of office had not yet matured) have been totally sidelined by Social Security’s Corporate Secretariat. The said individuals have only informally become aware of the apparent intention of the new Minister of Social Security to reconfigure the panel of members of the Board of the Institution. They have accordingly been seeking discreetly to advise the Corporate Secretariat of the Board to bring the newly appointed Minister up to speed with the proper procedural approach to empaneling a new slate of members, taking the peculiar circumstances into account. Formal correspondence along with other verbal conversations have been pursued. These efforts have not yielded the results necessary to clear up (on the record) the anomalous situation that has emerged, this being: an overpopulated panel. The six individuals are as follows: o Victor Earle – Deputy Chairman o Frank Farrell – Member o Dorita Rowland – Member o Jennifer Williams – Member o Candice Caines-Dickenson – Member o Chesil Hamilton – Member It would appear that: since taking office, the Minister’s handling of the transitionary protocols has been based on an erroneous belief that members of the Board are obliged to tender their resignations whenever there is a change of government or even a change of minister. Accordingly, he may have been guided by that false presumption and therefore operating under the illusion that the respective offices were automatically vacated in lieu of letters of resignation. Having not received such letters, he may then have mis-interpreted this as a hostile reaction from the individuals. Indeed, nothing could be further from the truth. It is now reasonable to conclude that in the absence of a designated Permanent Secretary dealing with matters related to Social Security, the Minister may not have been properly briefed by the Corporate Secretariat of Social Security and, or, by the Office of the Attorney General; to which latter the ultimate duty of appropriate advice falls. If, however, he was so properly briefed, then it would not be unfair to conclude that he may have simply opted not to be guided by sound advice. In fact, there is no obligation under the law that impels or compels members of the Board to resign in circumstances of a change of government or change of minister. However, the law provides a legal pathway (Sections 10. (1) and 11. (a) of the Act) for a new government administration or even a new minister to impact the governance of the Social Security Fund by enabling the Minister to terminate the appointments of existing members as he may deem expedient and to appoint new ones. This is an understandable provision which recognizes the political burden of accountability borne at any point in time by any government administration. It provides the latitude for government to determine who are its own selected representatives on the Board. This lends itself to the goal of influencing the policy direction of the Social Security Board and Fund, ensuring that it is in line with the vision of the administration. It also averts any potential risk of sabotage of the government’s policies regarding Social Security by persons who may not necessarily share the vision as articulated by the government. Very importantly at this point, however, the Act also currently stipulates that the Board shall consist of not more than twelve (12) persons. However, it turns out that the Minister has appointed a panel of twelve persons without properly issuing instruments of termination to the six other persons who had been serving and whose terms of service had not run to full maturity of three years as provided for at Section 5. (2) of the Act. This means that the corporate record of the Board has in excess of the mandated limit of twelve persons. In this case therefore, there are currently eighteen (18) persons on record. Meanwhile, without clearing that procedural hurdle, the Corporate Secretariat may have taken upon itself to unceremoniously discontinue all lawful obligations to the afore-mentioned six persons. In passing, it may be pointed out that corporate secretaries as well as others in similar functional positions have always been at the brunt of scathing dicta from both judicial and quasi-judicial benches worldwide for their acquiescence to improper governance practices where they allow themselves to be intimidated and become complicit in mal-administrative actions. It is also important to emphasize that while the delivery of the social security product is a political responsibility of the government, the Social Security Fund and Board are not owned and legally controlled by the government. The Board is not a department of any ministry of the government. The government as politically empowered stakeholder retains certain prerogatives and responsibilities, and the Minister is charged with executing specific functions that contribute to and support the maintenance of sound and accountable operational norms of the Institution. The six affected individuals have indicated that they are not taking issue with the right of the Minister to terminate their services; recognizing that it is his legal prerogative to do so. However, such prerogative must actually be exercised on the record; supported by the appropriate documentary evidence in the form of instruments of termination. At the time of writing, it is unknown by this author whether actual notification regarding termination has been provided to the Corporate Secretariat in an appropriate manner by the Minister. Suffice it to say that the six persons have not received any such communication. In the absence of this obligatory procedural courtesy, they have therefore received absolutely no formal notification regarding the Minister’s decision to terminate their services. Hence, from a purely legal standpoint their services can be deemed to have simply not been terminated. Once a proper handling of this aspect of transitioning to a new panel by the Minister has taken its course, a duty would then arise on the part of the Corporate Secretariat to institute cordial separation protocols. Corporate ethics and etiquette (at the level of the Corporate Secretariat) would require some semblance of decency in relation to the treatment of members whose terms have been cut short in the manner allowed by Sections 10. (1) and 11. (a) of the Social Security Act. In the circumstances, members terminated in accordance with the Minister’s prerogative are entitled to be treated fairly in keeping with the rules of natural justice and the contract law and administrative law principle of legitimate expectation. To date, the foregoing issues have rendered the operations of Social Security to be in a state of legal uncertainty and disorder and certainly not in keeping with all expectations in the realm good governance. As far as the handling of the situation by the Minister is concerned, the Attorney General’s intervention (as principal legal advisor to the government) could well be the catalyst that would set things right. At the same time, Social Security’s Legal Unit should be advising the Corporate Secretariat as regards its dealings with the six members who have been unceremoniously sidelined. It is noteworthy that while all of this has been playing out, the afore-mentioned persons have exercised extraordinary restraint as well as deference to the Minister and patience with the Corporate Secretariat in spite of the unfortunate developments. The current scenario exposes the government to possible injunctive and other forms of litigation. On the one hand, any citizen or member of the Fund can claim locus standi regarding the question of the overpopulated composition of the Board. This could include a challenge to the Minister demanding adherence to the law along with other questions regarding the legality of actions taken by the improperly constituted panel during the period in question. On the other hand, the ill-treated members of the Board are well entitled to pursue legal action against the Corporate Secretariat to assert their rights, claiming breaches of the rules of natural justice and the principle of legitimate expectation. These are well-established rule of law principles. The relevant authorities are expected to adhere to them if they are to measure up and demonstrate their commitment to the good governance standards being promoted globally and being extolled locally by all aspirants to the task of governing in our modern democratic society. 30