Our Constitution

Our supreme legislative document

A good constitution cannot alone make a nation’s happiness. A bad one can alone make its unhappiness.{a}

All of our local laws are made under the authority of St Helena’s Constitution

SEE ALSO: This page only discusses our most recent Constitutions. Previous Constitutions are discussed on our page Government on St Helena.

What it is

A constitution is an agreement between a people and their Government about how they want to be governed, formulated as a set of fundamental principles or established precedents according to which a state or other organization is administered{b}. These rules together make up (i.e. ‘constitute’) what the entity is. When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution; if they are written down in a single comprehensive document, it is said to embody a codified constitution.

St Helena is, officially, an internally self-governing British Overseas Territory{1}. It forms part of a group comprising St Helena itself along with Ascension Island and the Tristan da Cunha group of Islands.

St Helena has its own legislature, empowered to make laws known as Ordinances. Many of the Ordinances enable an authority (usually the ‘Governor-in-Council’) to make detailed ‘secondary legislation’ in the form of Rules, Regulations, or Orders. These Ordinances, and their associated secondary legislation, are available on the Government of St Helena website.

All of these local laws are made under the authority of St Helena’s Constitution, which is found in an Order in Council made under the Saint Helena Act, 1833. This is because, at present, ultimate legislative and executive authority for the British Overseas Territories resides in the British Crown. The Constitution provides for a Legislature, an Executive, and a Judiciary; with specific measures to protect the independence of the Judiciary from the other two organs of Government.

The Constitution sets out how St Helena is governed. This is described in detail on our page Government on St Helena so is not repeated here.

The Constitution also provides for a Supreme Court and a Court of Appeal, and allows for local laws to create subordinate courts. The Court of Appeal is to the Judicial Committee of the Privy Council, in London. More information can be found on the Government of St Helena website.

Our Constitution is often referred to as our ‘supreme legislative document’ because any Ordinance that is found to be incompatible with it is required to be changed{2}.

Is it really a ‘Constitution’?

Some claim that what St Helena calls a ‘Constitution’ is not strictly worthy of the name, arguing that the document does not fully represent the will of the people of St Helena because, whatever input may or may not be taken from Saints, the document is actually drawn up in London, approved by the UK Privy Council and is frequently not formally approved by St Helena. They therefore conclude that the document is not, as the United Nations requires, an agreement between a people and their Government about how they want to be governed.

However, the document is always formally referenced as the ‘Constitution of St Helena’ and that term is used to describe it throughout Saint Helena Island Info.

Changes Needed

While the 2009 Constitution was a definite improvement on the ones that preceded it - taking, as it did, the island closer to true democracy - Saint Helena Island Info was advised that it did have some issues that should have been addressed when drawing up the next Constitution. These were:

1. To provide for a truly multicultural island and to be consistent with Section 5, all references to any specific religion should be removed, e.g. in the Preamble, items (c) and (k).

2. Section 36, which defines how the Executive Council is created, needs to be revised to define a new, democratic way of selecting the island’s most powerful body.

3. The Oaths of Office taken by elected representatives (Section 54) need revision to ensure that necessary secrecy is balanced with openness and transparency.

4. The Public Accounts Committee should provide independent oversight of the Government of St Helena and hence should explicitly not comprise any members of Legislative Council/Executive Council.

5. The role of the Complaints Commissioner (Section 113) should be a permanent one and should be a person democratically elected to the role and completely independent of the Government of St Helena.

6. In Part 2, the role of the island’s Equality & Human Rights Commission as a monitoring body for the delivery of the rights set out in the document should be explicitly defined.

7. The Constitution should explicitly require the creation of Freedom of Information and Data Protection Ordinance(s).

8. A timetable should be defined within which all existing Ordinances must be reviewed to ensure compatibility with the new Constitution and, if necessary, changed.

In addition, if the intention is to complete the island’s progress towards being a democracy{3} the following also needed to change:

1. Section 14 (powers of the sovereign) should be removed.

2. The role of the Governor should either be abolished or reduced to a purely ceremonial one and all the powers assigned to the Governor should be reallocated. More specifically:

   • The responsibilities of the Governor (Section 44) should be allocated to democratically elected bodies.

   • The Governor should not be able to intervene in the composition of Executive Council and in who advises it (Sections 35, 38 and 40).

   • The Governor should not appoint committees (Section 58), Boards, etc and should not (Section 59) make rules for their operation.

   • The Governor should never be involved with Legislative Council (Section 62) and should not be required to authorise (and hence able to veto) laws passed by it.

   • Oaths should not be taken to the Governor, they should be made in public (in a similar way to the Oath taken by an elected President of the United States of America).

In addition to this list the Equality & Human Rights Commission compiled a more comprehensive report on the changes requiredⒾ.

Clearly, in the process of agreeing a new Constitution (see below) other issues would be raised by the people of St Helena.

The 2021 changes addressed almost none of these issues (see the Amendment OrderⒾ). It was drawn up to make the minimal changes needed to facilitate the ‘Ministerial Form of Government’ and all other potential changes were ignored. Hence the 2021 Constitution still has almost all of the issues raised above, and these therefore remain to be addressed in some future Constitution.

How is our Constitution revised?

As stated above, A Constitution is an agreement between a people and their Government about how they want to be governed. The United Nations has created a useful document describing the correct way for any entity to create or revise a Constitution. You can download a copyⒾ of this document.

However the process for revising the Constitution of St Helena has always been rather different. The UK regards our Constitution as a UK legal document, decided upon by the UK after (notional) consultation with the people of St Helena but not decided by them. Looking at the two most recent examples:

• The 2009 Constitution was not implemented by the process defined by the United Nations; it was imposed on the people of St Helena by the Governor (Governor Gurr) with no democratic process whatsoever.

• To implement the recommendations of the Sarkin Report into Governance Reform, published on 4th December 2019, a revision to the Constitution was completed in 2021. Governor Rushbrook and the UK Government chose not to consider addressing any of the issues detailed above or to engage in any formal consultation of St Helena as to what changes the people wanted, preferring instead to minimise the changes made simply to enable the ‘Ministerial Form of Government’. This was referenced by the island’s Equality & Human Rights Commission in an open letter to CouncillorsⒾ on 10th March, which was ignored by Governor Rushbrook and the UK Government. A further letter from the island’s Equality & Human Rights Commission was sent to all Councillors & Ministers on 21st June 2022 (copied to the acting governor and the Island Media), as below:

  Dear Chief Minister/Minister/Elected Member

  During the process of Constitutional Change, 2019 to 2021, which led to the Ministerial Government, the Equality and Human Rights Commission raised many deep concerns both privately and publicly. These concerns were not addressed by the previous council, the Governor or the Governance Commission. In particular in March 2021 the Commission wrote an open letter to the then Council to which they failed to respond.

  Ministers and Councillors currently serving, who also served on the previous council, spoke out against the process, its excessive speed, and the validity of the final result of the referendum. Then in August 2021 the Benchmark Assessment Report from the Commonwealth Parliamentary Association stated: The revised Constitution went to the UK Parliament as a statutory instrument saying that the changes were agreed by LegCo on 4th June 2021 but there are no records of that meeting. There are differences between the two versions of the Constitution (for example in section 69A). This issue was raised by a number of stakeholders and is causing mistrust and suspicion. It could cause a challenge to the legitimacy of these important constitutional changes.

  This report was placed on the table and endorsed by LegCo on 29th March 2022 and is now available at www.sainthelena.gov.sh/‌wp-content/‌uploads/‌2022/‌04/‌sessional-paper-8.pdf (see page 48).

  The Equality and Human Rights Commission would like to know what is being done by the present Council to address these concerns about the legitimacy of the Constitution and to enable St Helena to have a root and branch review to ensure we have a Constitution that genuinely meets the needs of St Helena.

Read More

Below: Read it for yourself Article: Press Release - New Constitution

Read it for yourself

…every person in St Helena is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, without distinction of any kind, such as sex, sexual orientation, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, age, disability, birth or other status, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following:
(a) life, liberty, security of the person and the protection of the law;
(b) freedom of conscience, of expression and of assembly and association;
(c) protection for their private and family life, the privacy of their home and other property; and
(d) protection from deprivation of property save in the public interest and on payment of fair compensation…

The full text of our 2009 Constitution can be read hereⒾ{4}.

Article: Press Release - New Constitution (2009)

Issued by the Government of St Helena, September 2009{5}

1st September 2009 was an historic day for St Helena, Ascension Island and Tristan da Cunha since the new Constitution came into force. This follows many months of discussion and a number of public consultation meetings.

The new Constitution replaces the outdated Constitution of 1988, and includes a bill of rights. This will allow people to complain in the local courts on human rights issues, instead of having to go to the European Court of Human Rights in Strasbourg. Among other changes under the new Constitution, the Governor’s power has been limited in a number of areas as have the powers of senior officials and the Administration, while more power has been entrusted to elected Councillors.

Symbolically, the Governor will no longer hold the title ‘Commander in Chief’.

Public Relations/Information Office
Office of the Chief Secretary,
2nd September 2009