(CNS): The court has ruled that Nickolas DaCosta, the youngest candidate to be nominated for the 2017 election campaign, is not qualified to run for office because of his dual citizenship, which he has by descent. In a surprising decision, given his previous ruling in the Hewitt v. Rivers case, Chief Justice Anthony Smellie said that, “as regrettable as it is”, there was nothing in the constitution giving any indication that the framers were not intent on excluding those with potentially divided loyalties.
In a nuanced point compared to the situation impacting Tara Rivers and the challenge to her election to office because of her American passport, the chief justice said that “unfortunately”, DaCosta was not qualified in accordance with Section 62 because his issue related to descent. The 26-year-old from Cayman Brac got his US passport through direct family ties and lineage and not as an accident in the place of his birth, as was the case with Rivers.
Whether voters will see the subtle difference or not, the question in the Rivers case was not quite the same. The Constitution allows for dual citizenship obtained because of where a person is physically born — a deliberate carve out in the Constitution made as many Caymanians were born overseas because of the maternity services available elsewhere.
The legal question in the challenge against Rivers’ right to be elected was not about her right to be an American having been born there but whether or not, having applied for a passport, this meant she had sworn allegiance to a foreign government.
In this case, DaCosta holds dual nationality because his grandfather is an American. As the top judge read out his decision in the second 2017 election challenge he has heard so far, he noted that the Constitution sought to ensure that candidates do not have “divided loyalties” that could come from dual nationality as a result of descent.
CJ Smellie said he had to consider the case against the intent of those who framed the Constitution, and as it stands at the moment, as “unfortunate” as it might be, there were no other clauses or ways to reinterpret the words regarding dual citizenship in the current context, which means DaCosta does not qualify.
The Elections Office challenge also raised the question of DaCosta having sworn an oath to act as a notary public when he was living in Florida as being an indication of an allegiance to another country. But given his decision regarding DaCosta’s citizenship, he said there was no need to consider the legal point on the second part of the challenge.
CJ Smellie also ruled, as he had in the case of ‘Candidate X’, that he would not award costs to either side, given the public interest and need to settle the questions.
DaCosta was going up against the incumbent, Moses Kirkconnell, in Cayman Brac West and Little Cayman. But the finding that he is not qualified to run leaves the tourism minister, who is seeking his fourth term as an MLA for the Sister Islands, in a head-to-head against Maxine Moore, who is trying again, despite standing and losing her deposit in previous elections.
The chief justice has one remaining case to decide, which is based on a very narrow point regarding the continuous pre-election residency period of seven years and whether Alric Lindsay falls foul of that requirement.
Check back to CNS for the details of that case tomorrow.