14 March 2016: ELECTION PETITIONS: Summary of Proceedings by the Special Rapporteur
Day 16 – 14 March 2016, 9.00 am – Constitutional Court of Seychelles
In the matter of Wavel John Charles Ramkalawan v The Electoral Commission, James Alix Michel and the Attorney-General
The Constitutional Court is made up of the Honourable Chief Justice Twomey, Honourable Judge McKee and Honourable Judge Akiiki-Kiiza. Mr. Wavel Ramkalawan (Petitioner) was represented by Mr. Bernard Georges and Mrs Annette Georges. The Electoral Commission (First Respondent) was represented by Miss Samantha Aglae, Mr James Michel (Second Respondent) was represented by Mr Basil Hoareau together with Mrs Laura Valabhji and Honourable Attorney-General together Mr Ananth Subramanian for the Attorney-General (Third Respondent).
The Court reconvened this morning. Mr Georges called Ms. Julia Lajoie, a Compliance Officer at the Registration Division of the Registry of Companies who had been deputised by the Registrar of Companies to come testify. Ms Lajoie stated that all companies registered in Seychelles, including the Indian Ocean Tuna Company (IOT), are under obligation to file annual returns with the Registry of Companies. She produced to Court the annual return in respect of IOT for 2014.
Mr Georges called Reverend Louis Agathine, a clergy of the Catholic Church and chaplain of the Seychelles Peoples Defence Forces (SPDF) and recently promoted to the rank of Lieutenant Colonel in the SPDF. Reverend Agathine stated that, on a monthly basis, he meets with the army units of the SPDF. He stated that on 11 December 2015, he met with an army unit at the Coast Guard Headquarters at Ile du Port, and it just so happened that the December meeting coincided with the Presidential elections. He stated that CO Simon Dine and CMA Colonel Roseline were also present at the meeting and that they both addressed the army unit. He stated that the CO told him that there were approximately 50-70 members present at the meeting but that he cannot agree or disagree with that amount, as he cannot remember. Mr Basil Hoareau proceeded to cross-examined Reverend Agathine. He was questioned as to whether the meeting of the 11th December was part of the normal monthly routine and he stated that it was. He stated that he attends all the monthly meetings and that sometimes the CMA attends if matters need to be addressed. He stated that the meeting on the 11th December was not the first time the CMA attended a meeting and that the CMA had also attended a meeting in November to address the issue of drugs in the country. He stated that he usually organises the monthly meetings but that he takes his orders from the Chief of Staff of the SPDF. He stated that he did not invite the CMA to attend the meeting of the 11th December but the Chief of Staff told him that the CMA would be accompanying him. He was questioned as to whether the meeting would have taken place irrespective of the Presidential elections and he stated that it would have. He was questioned as to whether when addressing the army unit he had the intention of breaching the Elections Act, and he stated that if one listens to the recording, one will see that he was preaching love, stability and peace. He stated that he is not a politician; that he is a man of God and that he is not and will never be an agent of any political party. The Attorney-General questioned Reverend Agathine on the inspiration behind his speech to the army unit and he stated that he was talking about the reality in Seychelles; that we were entering a difficult period and that every church was speaking about the same reality. He stated that he was not inciting violence but that he is a man of peace. He was questioned as to whether he was acting as an agent of Mr James Michel when he delivered his speech to the army unit and he reiterated that he will never serve any political party but that he is a man of God. Mr Georges re-examined Reverend Agathine. He stated that between the meeting in November and the meeting of the 11th December, he did not participate in any other meetings with any other army units, and that since the 11th December, he has not attended any other meetings.
Mr Georges called Ms Eline Moses, the Chairperson of the Citizens Democracy Watch Seychelles (CDWS), an NGO which has been in existence for 4 and a half years and which was accredited as an observer to the 2015 Presidential elections. She stated that the CDWS had a team of 24 observers who were deployed across the various polling stations, including in the inner and outer islands, in both rounds of the Presidential elections. She stated that during the 2nd round, she was based on the Silhouette and National Library special polling stations. She stated that on the main polling day, 18th December, she observed the opening and closing of the National Library special polling station, and that she attended to other stations across Mahe as well. She stated that she was based at the Secretariat in Victoria where she would occasionally meet with observers to see what was happening on the ground. She stated that, following the elections, a meeting was conducted on the 19th December with all the observers based on Mahe and on 20th December with all the observers based on Praslin and La Digue to gather the observations of all the observers. She stated that, following these meetings; a technical team of 5 members of the CDWS drafted a preliminary statement. She stated that she the mission leader of the technical team that compiled the report. She stated that the report was reached by consensus of all the members for the CDWS and that she delivered the report as the Chairperson of the CDWS in a press conference held at the Citizens Engagement Platform (CEPS) conference room. She stated that she read the entire report and that it is the voice of the CDWS. Ms Moses sought to produce the report to the Court but the Court ruled that the report was inadmissible for containing inadmissible hearsay statements but the Court gave the Petitioner permission to call witnesses to testify on the contents of the report by 16 March 2016 at 10.30am. The Petitioner decided not to call the witnesses.
Ms Moses stated that she had visited other polling stations besides the one she was posted at and that she observed inconsistencies in the UV light inspection process. She stated that as per procedure whenever a voter enters a polling station, his hand is to be verified under the UV light, an officer will apply ink and spray to the hand, and then the individual’s hand will need to be re-verified under the UV light to ensure the ink and spray are present. She stated that she observed that the second verification was not being done in one polling station. Mrs Aglae proceeded to cross-examine Ms Moses and she was questioned as to whether she observed any instance of detection of ink or spray on an individual’s hand whilst being checked under the first UV light verification process and she stated that she did not observe this. Mr Hoareau put it to Ms Moses that of the two verifications, the first is the most important being the one that would ascertain whether a person has already voted or not, and Ms Moses stated that she could not comment on this.
Mr Georges sought to call Mr Ramkalawan back to the stand. Mrs Aglae objected; arguing that the Court had already given enough leeway to the Petitioner to call Mr Ramkalawan more than once. Mr Hoareau argue that this will the third time Mr Georges is seeking to call Mr Ramkalawan and further that Mr Georges should have made a formal application with a supporting affidavit to do so. The Attorney-General similarly objected arguing that Mr Ramkalawan had knowledge of all matters throughout and that Mr Ramkalawan’s evidence would not be original as he has been present in Court throughout the proceedings. Mr Georges contested the submission of the Attorney-General, arguing that certain matters were not in the knowledge of the Petitioner throughout as they were only granted access to the registers last week. The Court ruled that it would not be fair to call Mr Ramkalawan to the stand again and Mr Ramkalawan will have the opportunity to question the Electoral Commission witnesses.
Mr Georges closed the Petitioner’s case.
Mrs Aglae opened the 1st Respondent’s case by calling their first witness, Mr Charles Morin, the Chief Electoral Officer of the Electoral Commission. He stated that his role was to make sure the election proceeded according to the election laws. He proceeded to explain the pre-election procedures. He stated that in respect of the 2nd round of the 2015 Presidential elections, the pre-election procedures adopted in the 1st round were repeated. He stated that lots were drawn to determine which candidate would appear at the top of the ballot papers as well as the order of the Political Party Broadcasts (PPB). He stated that the ballot papers were ordered from South Africa and that when the ballot papers arrived in Seychelles, they were transported from the airport to a safe at the Central Bank. He stated that this, including the printing of the ballot papers in South Africa, was conducted under the supervision of representatives of each political party and all parties signed a certificate to confirm that they were satisfied with the procedures.
He stated that the special stations are on Mahe, Praslin, North East Point, English River (for persons working in essential services, eg. health, police, fire brigade), Ile Perseverane, Prison (for detainees), Baie Ste Anne (for persons working temporarily on Praslin), Silhouette (for persons residing and working on Silhouette and North Island and any other persons present on Silhouette on the day. He stated that a list is compiled for each special polling station. He explained that the Electoral Commission contacts the Island Development Corporation (IDC) and agencies present on private islands to provide a list of persons on the islands eligible to vote; that a list is prepared by the Electoral Commission which is sent back to IDC and the agencies to certify as correct; and following receipt of the correct list, a final list is prepared. He stated that exceptions were made to the procedure in the 2nd round of elections where provision was made at the English River polling station for voting by persons who were travelling out of the country, following consultation with, and agreement of, the representatives of both political parties, Mr Gill (on behalf of PartiLepep) and Mr Prea (on behalf of SNP).
Mr Morin was shown the occurrence book and he stated that no issues were reported in respect of the 2nd round of the elections, except a report in respect of the North East Point (NEP) special station. He stated that in respect of the NEP special station, it was reported to him that a Mr Pat Savy, an agent for the SNP, was found in the female ward of the NEP special station and that he was asked to leave. The occurrence book was produced to the Court as an exhibit.
He stated that despite the list for special polling stations, anyone who found themselves present on an island with a special station, was allowed to vote as long as he had identification documents and stated which electoral district he was registered in. Mr Morin gave the example of a fisherman who might find himself near an island. He stated that during the 2nd round, this happened on Silhouette and another island. He stated that after these persons were allowed to vote, their names were added to the list. He stated that the list for special polling stations is provided to the electoral officers travelling to the special polling stations as well as the party representatives. He stated that all persons voting at the special stations placed their ballot papers in envelopes which stated the district name on it.
He stated that after voting, the boxes are closed and sealed by the electoral officers and the party representatives are invited to put their seals on the boxes, and the boxes are escorted by the electoral officers and party representatives back to the Electoral Commission headquarters where it is placed in a safe. He stated that the party representatives are invited to check the seals before the boxes are placed in the safe. He stated that following receipt of all the boxes, the political parties would be notified of the time for the sorting out for the envelopes per electoral area and invited to attend. He stated that he also encouraged the political parties to have their party representatives from the special polling stations attend as well. He stated that during the 2nd round, the sorting out process started at approximately 7.30-8. He stated that the party representatives from the special polling stations were invited to check the seals on the boxes before they were opened. He stated that the boxes were then opened and the envelopes were sorted per electoral area.
Mrs Aglae produced a sealed box which was opened in the Court and which contained unused ballot papers.
Mr Morin continued to explain that the procedure of placing and removing seals on the ballot boxes. He stated that each the Electoral Commission and the party representatives placed their own seals on each ballot box and that each party representative checked and then broke their own seals at opening of the boxes. He stated that the process went smoothly; the only exception being one incident where two envelopes were found in the ballot boxes from the special polling stations that did not contain the name of the electoral area for which they related to. He stated that the party representatives were invited to decide for which electoral area they wished those envelopes to be added to, but that he cannot recall which electoral area they were added to.
He stated that all envelopes in respect of one electoral area were placed in a larger khaki envelope and sealed by the Electoral Commission and the party representatives and placed in the respective electoral area ballot box which is again sealed. He explained that a summary of envelopes from special polling stations was prepared which contained the number of envelopes in respect of each electoral area. Mr Morin proceeded to produce the summary (“Summary of Ballot Papers from Special Stations”). He stated that the Summary of Ballot Papers from Special Stations was signed by the SNP representatives. He stated that,in addition to this, a list of names of voters from special stations in respect of each electoral area was prepared and sent to the polling station to which it related where it was read out in the morning before the opening of the polling station (“List of Voters from Special Stations”) He stated that following this, two electoral officers, party representatives and armed personnel then escorted the envelopes to the polling stations.
He stated that during the 2nd round more than one register was in use at each polling station to speed up the process following delays in the 1st round. He stated that this was done in consultation with, and agreed to by, both parties. He stated that measures were in place to prevent a person from voting twice including the ink, spray and UV light check. He stated that the ink was obtained from a supplier in India who is accredited by an International Recognised Certification Body. He stated that a sample was ordered and tested and found to be perfect following which the ink was ordered and used during both 1st and 2nd round. He stated that this same supplier was used in previous elections in Seychelles. He stated that the Elections Act makes it an offence for a person to attempt to vote twice.
He stated that each party was requested to supply 5 names of polling agents and 2 names of counting agents for each electoral area and that these agents were accredited by the Electoral Commission and given a badge which reflected polling agent or polling/counting agent. He was then referred to the List of Voters from Special Stations and the Summary of Ballot Papers from Special Stations and asked to compare the figures in respect of certain electoral areas. He stated that the summary showed 145 and the list showed 146 for Bel Air; the summary showed 284 and the list showed 283 for Anse Etoile; the summary showed 262 and the list showed 259 for English River; the summary showed 210 and the list showed 209 for Au Cap; summary showed 215 and the list showed 214 for Anse Boileau; and that the summary showed 243 and the list showed 243 for Glacis. Mr Morin explained the discrepancy by saying that the total number of envelopes corresponded with the total number of persons that had voted at special stations; being 4100 envelopes and 4100 names, and that the list of names could have contained errors as it was compiled at 3 o’clock in the morning and had to be sent out by 5 o’clock. He stated that the list was compiled by his clerical staff which he supervised.
Mr Morin explained his role as the Chief Electoral Officer during the counting at closing. He stated that at closing the electoral officer in charge of each polling station would transmit the results by fax to him at headquarters and he would check to see that everything tallies. He stated that the total number votes in respect of each candidate was calculated and the results were handed to him and that he checked this and then handed it over to a team of persons who prepared a tally sheet which he again checked. He stated that the tally sheet was signed by the different representatives and that the SNP signed 23 out of the 25 electoral areas; Anse Aux Pins and Cascade excluded. He stated that a grand total was then calculated and a statement of results was prepared and this statement was produced to the Court.
He was shown the tally sheet for Glacis which stated that 244 envelopes were received and he stated that this was brought to his attention and he informed Glacis electoral officer that only 243 envelopes were placed in the khaki envelope. He was shown the occurrence book for Glacis which showed a remark at 9.28. The occurrence book for Glacis was produced to Court. Mr Morin stated that measures were in place to ensure no tampering with the envelopes.
He stated that he received a complaint in respect of the Silhouette special polling station that one batch of ballot papers contained 101 ballot papers instead of 100, and that across the other stations some other batches had 99, some had 101 and others had 100. He stated that the batches were printed in batches of 100 and 50 but that the 50 batches were limited. Mr Morin stated that there exists a handbook which is merely a guide. He stated that the names of aged or incapacitated voters who needed assistance when voting were given to the Electoral Commission and they were accompanied by an electoral officer to vote.
Mr Hoareau proceeded to cross-examine Mr Morin. He was referred to the section of the handbook that states that the district administration (DA) offices shall be closed on the day of elections and he stated that the intention of this section was to provide for the closure of DA offices which are located in the same building as polling stations, but that if the DA office was located far away, then there was no need for closure. He stated that at Perseverance, the DA office is located far away from the Perseverance special station such there was no necessity for the DA office to be closed. He stated that the UV light check is in place to ensure that a person does not vote twice. He stated that in the 1st round the computation was based on valid votes cast and not total votes cast and that the same computation was used in the 2nd round and that the same computation was used in previous Presidential elections.
He confirmed that on the 17th in the evenings all the envelopes received from special stations were sorted out and that party representatives were requested to be present at the sorting. He stated that both candidates did send representatives. He was shown the Summary of Ballot Papers for Special Stations and he confirmed that this had been signed by representatives of Mr Ramkalawan as well as the representative of CDWS. He stated that the Summary certified that 4100 envelopes were received from special stations. He stated that, in respect of the two envelopes that did not contain the name of the electoral area to which it corresponded, there was no agreement that these could be added to any electoral area as the number of voters (4100) and the envelopes (4100) tallied. Mr Morin was questioned as to whether SNP agents were present on the date of polling at the special stations and he confirmed that they were and that the same agents placed a seal on the ballot boxes. He stated that on the date of sorting out, event if those same agents did not attend, SNP representatives did attend with the seal numbers and were thus able to check that the seals had not been tampered with. He stated that there were no complaints made in respect of seals having been tempered with.
He was questioned as to whether the ballot papers were the same during the 1st and 2nd round and he stated that they were but that in previous elections the ballot papers were printed in Singapore and during the 2015 Presidential elections there were printed in South Africa. He stated that no complaints were made in the 1st round in respect of the batches of ballot papers not containing 100. Mr Morin was asked to look at the list of polling agents for PartiLepep during the 2015 Presidential elections to check if the name James Lesperance was on the list and he stated that it was not. He was questioned as to whether if Mr James Lesperance was a polling agent for PartiLepep, his name would appear on that list and he confirmed that it would have. Mr Morin stated that there were no bonuses paid to electoral officers to speed up the counting process but that the electoral officers were paid a fee for their services. He was questioned and he agreed that an electoral officer is appointed to discharge duties inside the polling station and on the polling station only.
The Attorney-General proceeded to cross-examine Mr Morin. He was asked about procedures in place on the special polling stations on the islands and he stated that the electoral officers use a master register against which they can check the name, details and electoral area of any person who is present and wishes to vote at the special polling stations on one of the islands. Mr Morin was questioned as to whether there were any numbers or identification markings on the ballot papers and he stated that there weren’t and that if one looks at a batch of ballot papers one would not be able to tell if it contained 100, more or less, and that one would have to count each batch. Mr Morin stated that registers have never been reconciled and there is no legal requirement to do so and that the tally sheet is sufficient. Mr Morin further stated that there is no requirement for a specific marker to be used to indicate one’s vote on a ballot paper.