15 March 2016: ELECTION PETITIONS: Summary of Proceedings by the Special Rapporteur

ELECTION PETITION - REPORT OF THE PROCEEDINGS BY THE SPECIAL RAPPORTEUR

" Day 17– 15 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) is represented by Mr. Bernard Georges and Mrs Annette Georges. The Electoral Commission (First Respondent) is represented by Miss Samantha Aglae, Mr James Michel (Second Respondent) is represented by Mr Basil Hoareau together with Mrs Laura Valabhji and Honourable Attorney-General together Mr Ananth Subramanian for the Attorney-General (Third Respondent).

Mr Georges proceeded to cross-examine Mr Morin. Mr Morin first stated that he did not know whether passports or ID cards is the most commonly used form of identification used by voters but agreed that drawing from his experience at various polling stations as an electoral officer during past elections that ID cards were the most common form of identification used by voters. Mr Morin was questioned as to what happens to the registers and occurrence books after voting is completed and he stated that they are brought to headquarters by electoral officers escorted by armed guards and handed over to him to be placed in a store under lock and key. He explained that the registers and occurrence books were placed in boxes and that some of the boxes were sealed whereas others were not. When questioned as to whether they should have been sealed, Mr Morin stated that the only procedure was for the registers and occurrence books to be placed in boxes. When questioned as to whether he had never felt it necessary to give instructions setting out standard procedures in view of the different practices being employed by electoral officers, he stated that he did not. Mr Georges asked Mr Morin whether he did not think that this was a dangerous practice that left the door open for registers to be tampered with between the close of polling and when handed over to him for safekeeping and he stated that he had never received a report of tampering. He conceded that in the event of tampering, a person who had tampered with the registers or occurrence books would not report this.

Mr Morin was questioned as to whether he was familiar with the Elections Act and whether he followed it to which he stated that he was and he did. Mr Georges proceeded to read out a section of the Elections Act that stated that electoral officers shall place registers in a box and seal the box and Mr Morin conceded that this section was not complied with by the electoral officers and that he did not take them to task on it. Mr Morin stated that he could not recall if the Inner Island registers before the court were in a box that was sealed or not sealed.

Mr Morin was questioned about voter education and he stated that the Electoral Commission was in charge of voter education and that he was satisfied that proper voter education had been conducted. He stated that the voter education informed voters that they could use their ID cards for identification purposes and that he did not receive any complaints with regards to ID cards being purchased by individuals to prevent persons from voting but that he read about it in a newspaper. He stated that he knows all of the members of the Electoral Commission and that none of them brought this issue to his attention. He was questioned as to whether he did not think it fit to educate voters about the fact that it is an offence for someone to purchase ID cards of others and he stated that he did not.

Mr Morin was questioned about the procedure that would be followed when a person presented themselves to vote at a special polling station on the main polling day. Using the example of an eligible voter from La Digue who finds himself on Mahe on main polling day, he explained that the voter would enter the station, identify him/herself, that his/her name and details would be verified against the register, that his/her name and details would be called out and that the person manning the register would cross out the person’s name and details off the register. He explained that simultaneously to the crossing off of the person’s name and details on the register, another person, an electoral officer, would fill in the person’s name and details on a form. He explained that the form would then be faxed to the person’s electoral area, in this example, La Digue. He explained that the faxing of the form was done periodically by pages of 4 to 5.

Mr Morin was questioned about the number of registers in use at the National Library special station on the 18th December in respect of the inner islands and he stated that it was possible that there was more than one register in use and that would explain why there are 2 registers in respect of the inner islands. He explained that despite more than one register being in use, the name of a voter would only be crossed off one register, that being the register being used by the caller that called out the name and details of the voter. Mr Morin was referred to the two registers in respect of the inner islands and specifically the name and details of a person that had been crossed out on both registers and was asked to explain how this could have happened. He stated that he didn’t know. He was next referred to a voter and asked whether the voter’s name had been crossed off the registers and he confirmed that it was crossed off register 1 and not register 2. He was referred to the list compiled from forms that were filled out by electoral officers in respect of the inner islands and periodically faxed to La Digue and asked whether he could see the name of that voter and he confirmed that he could. He was asked whether one could assume in that instance that register 1 was used and he stated that was correct. Mr Morin was referred to another voter whose name was crossed off register 2 but not register 1 and who appeared on the list and he agreed that one could assume that in that instance it registered 2 that was used. Mr Morin was then referred to a voter who was crossed off register 1 but not register 2 and he was asked to look for the voters name on the list and he stated that it was not on the list. He was asked whether he could provide an explanation for this and he stated that the name should have been on the list and that it could have been an omission, error or other. Mr Georges asked what Mr Morin meant by other. Mr Hoareau objected to the line of questioning stating that the only matters pleaded were in respect of two individuals and not these individuals. Mr Georges argued that the cardinal pillar of the Petitioner’s case was that the lack of reconciliation of the registers leads to uncertainty and that his questions are perfectly in line with the particulars of the pleadings as amended yesterday. The Court upheld the objections of Mr Hoareau.

Mr Georges continued his questioning of Mr Morin. Mr Morin was questioned as to whether he was aware that in the case of inner islands, not all names from the special polling stations were transmitted to the polling station on La Digue and he stated that he was not aware. He was questioned as to the purpose of the transmission and he stated that it was to prevent a person from voting twice.

Mr Morin was questioned about aged and incapacitated voters and was asked whether he had read any reports of observers in the past and he stated that from his partial reading of the reports the issue of aged/incapacitated voters had not come up. In reply to questions put to him, he stated that he did not see it important to read the reports or a report of the Commonwealth observers dated 2001 on the issue. He was questioned as to whether, in his capacity as the Chief Electoral Officer, he carried out any investigation into reports of abuse of aged/incapacitated voters, and he stated that he did not, besides putting it to the attention of the Electoral Commission.

Mr Morin was referred to the occurrence book for North East Point special station and asked to read an entry which he read as - presidential candidate SNP reported workers telling residents who to vote for, report sent to HQ – and he stated that the entry appeared to have been made by the electoral officer. He stated that the report was received by him at headquarters and that he told the electoral officer to have a look into the matter and further reported the matter to the police but that he did not follow up on the matter.

Mr Morin was questioned as to whether he knew of the Agency of Social Protection and whether his office received any complaints between the two ballots pertaining to that agency and he stated that he received a report saying that there were long queues outside the agency. He stated that he sent the Chair of the Indian Ocean Commission observer mission to look into the matter and that he did not do anything as he did not feel it important to investigate long queues. He was questioned by Mr Georges as to whether he never put two and two together; long queues, social welfare, closeness to elections and he stated that he had more important issues to deal with.

Mr Morin was questioned on the quality of ink and spray. He was asked whether he was aware that there are commonly known methods of removing ink and spray and he stated that he was not aware. He was asked whether he was aware of any criticism that had been levied internationally against the supplier used in the 1st and 2nd round against the quality of the ink and spray and he stated that he was not aware. He was asked whether he was aware that the same supplier supplied ink and spray for the Malaysian elections in 2013 and that the ink supplied by that supplier could easily be washed off with soap, toothpaste, washing liquid, bleach and even grass and he stated that he was not aware of any of this. It was put to Mr Morin that the ink and spray used was well below standard, that members of the Electoral Commission themselves expressed surprise that this ink and spray was to be used and that persons in Seychelles themselves were able to demonstrate how easy it was to remove the ink and spray and he did not answer.

Mr Morin was questioned as to the counting of ballot papers in the books of 100 and 50. He stated that the ballot papers were counted on the evening before polling day, 17th December, one by one, by books of 100 or 50, by the electoral officers and Deputy. He stated that when a ballot paper book was found to contain more or less than 100 or 50, it was substituted for the book containing the correct number of ballot papers. He was asked whether the ballot paper books were counted again at the polling stations on the morning of the 18th December and he stated that they were not. When questioned why this wasn’t done, he stated that it was at the discretion of the electoral officers whether or not to count the books again and that he wouldn’t know which of the electoral officers did or didn’t. Mr Morin was asked whether there are any guidelines in place and he stated that guidelines exist and are produced so that electoral officers can follow procedures and make sure they don’t miss out anything. He was referred to the handbook for electoral officers and he stated that this handbook was produced by the Electoral Commission with his participation. He was referred to the section of the handbook that states that electoral officers must re-verify the ballot paper books and shall report back to headquarters if any of the books does not contain 100 or 50. It was put to him, and Mr Morin agreed that the words’ must re-verify’ and ‘shall report’ are imperative and not at the discretion of the electoral officers. Mr Morin was asked to refer to the occurrence books of Silhouette and Cascade and to identify any reports that had been recorded. He identified entries made in both Silhouette and Cascade occurrence books, in both cases the entries were not made in the morning, and in the case of Silhouette the entry was made after an entry by the SNP agent and in the case of Cascade, the entry was made at 10.55 pm after the close of voting.

Mr Morin was asked whether the registers were reconciled and he stated that this was not done but that a tally sheet was produced. He explained the tally sheet stating that every time a ballot paper was issued a tally would be marked on the tally sheet. He conceded that it was possible that there could be instances where a ballot paper might have been issued and due to human error not marked on the tally sheet or instances where two ballot papers were issued, by mistake or otherwise. It was put to him and he agreed that the tallying of the number of votes in the box as against a tally sheet which is susceptible to error is not a fool proof method of tallying. After being put to him, Mr Morin stated that it was possible that the room for error was less when crossing off names on register compared to the tally sheet. It was put to Mr Morin that the law requires the marking of registers and not tally sheets. Mr Morin agreed that the law does not speak of a tally sheet but that this was a method adopted by the Electoral Commission to keep a tally.

Mr Georges sought to question Mr Morin about instances of double voting at Glacis but this was objected to by Mr Hoareau on the grounds that these were not contained in the pleadings. The Court did not allow this line of questioning.

Mr Morin was questioned about the discrepancies in the number of envelopes received from special stations at English River compared to the number of names on the list received and Mr Morin stated that as the overall number of 4100 envelopes and 4100 names tallied, he put it down to human error. It was put to Mr Morin that if one adds all the votes that do not tally in all electoral districts at which there are discrepancies, they do not cancel each other out, as there are still 5 envelopes more than names. It was put to Mr Morin that if they cancelled each other out, then it could have been said that the envelopes for one electoral went to another but that this was not the case. Mr Morin said he put it down to error. Mr Morin was questioned what the magnitude of human error was nationally if out of the number of votes at one electoral area there were these number of discrepancies and he did not answer.

The case reconvened in the afternoon where Mr Georges continued cross-examining Mr Charles Morin. Mr Georges questioned Mr Morin on the voter education which was on the media in the manner of which to vote. For a person to indicate their vote, they had to put a cross or tick and not a circle as Mr Morin had indicated yesterday. It was further admitted that no items were allowed with a voter in the polling both. Mr Georges questioned Mr Morin whether he was surprised to learn that there had been three ballots which had been marked with a ballpoint pen compared to the marker to which he replied that he was not surprised. Mr Morin stated that he believed that the voter education had been adequate. He further stated that the method which the Electoral Commission used to deal with complaints were adequate.

It was however put to Mr Morin that the method of dealing with complaints by the Electoral Commission was completely wanting, to which he disagreed.

Mr Morin had previously admitted that a name could have been left out when the list was compiled due to the pressure of work and the work was completed late at night. Mr Georges questioned Mr Morin that it may be understandable that a name could have been omitted, but how could a name have been added to the list, to which Mr Morin replied that he did not know.

Mr Georges continued his line of questioning of an extra name being added to the list in relation to two electoral districts, namely Bel Air and Pointe Larue. Mr Georges stated that if those people’s names had been put on the list, their names would have been crossed off the register and they would have been deprived of their right to vote. Mr Morin stated that this was not brought to his attention.

Mr Georges pointed out to Mr Morin that all polling agents and representatives of the political parties had signed on a list which indicated the number of envelopes which had been counted and not on the list of names which had been tallied by the Electoral Commission as that list had been created after the counting of the envelopes.

Mr Morin stated that for each special voting station, the Electoral Commission had a breakdown of the people who had voted and their electoral area. He further stated that all those envelopes tallied to the breakdown.

Mrs Aglae re-examined the witness on the means of voting, Mr Morin stated that in his past experiences, what was used to vote was an ID card. In the last election, there were other means to vote other than an ID card; a person could use their passport, birth certificate or present himself to his electoral area and if 2 people could identify him in which case the person with those 2 people will sign an affidavit to indicate that the person was identified by them. Those options were brought out in the voter’s education that a person could vote without their ID card.

It was reiterated that all ballot boxes were sealed, locked and escorted to the Electoral Commission Headquarters. Mr Morin explained that armed guards escorted all the boxes from the polling station to the Electoral Commission Headquarters which were then handed to him. Mr Morin stated that he did not receive any complaints that a person could not vote because they did not have any ID card. He, however, stated that he did receive complaints from both political parties which were dealt with by the necessary procedure.

The voting procedure for the special polling station at the National Library for La Digue, Inner Island, Baie Sainte Anne and Grand Anse Praslin was explained and it was pointed out that there were no complaints of anyone voting twice. Mr Morin stated the list of names with the vote cast at the National Library were then transported to the relevant electoral area. During counting, the votes received at the National Library tallied. 
Mr Morin stated that he did not have any personal knowledge of any incident that occurred at North East Point. Mr Raman, a Mauritian Observer was sent to check out what was happening at the Agency of Social Protection, and nothing abnormal was reported. The ink and spray used in the second round were the same ones used in the first round and no complaints had been made by the SNP.

There were reports made for Silhouette and Cascade in the occurrence book. Mr Morin stated that the Electoral Commission gave no instructions to their officers when the reports should be made, as long as the report is made in the occurrence book. The occurrence book was open to the Electoral officer in charge, as well as the polling agents, the observers and anyone accredited by the Electoral Commission working in that polling station.

Mr Morin was questioned about when tally sheets were introduced; he stated that it was since the days of Judge Sauzier was involved in elections, he believes that it was in the 1980s. There were no complaints made by either political party of the use of tally sheets. The names of the agents at Les Mamelles polling station were called out in court, the counsel for the Petitioner, Mr Georges' name was mentioned. It was stated that Mr Georges was a counting and polling agent.

Mrs Aglae called her second witness Mr Gilbert Morel, who was the Presiding Officer at Pointe Larue. He explained that before the station opened, there were pre-checks in place. During the pre-check stage, he stated that there was one batch that had 101 ballots instead of 100 which made a total stock of ballot papers to 2101 instead of 2100. This booklet was marked and Mr Morel called the polling agents to explain what happened and they all agreed to readjust the number to 2101 instead of 2100. He described the procedure of how voting takes place and that no foreign objects; bags, mobiles or hats were introduced into the voting station and they were left outside on a special table. He explained the checks which were done to ensure that a person could not vote twice.

Mr Morel stated that the envelopes from the Special Voting Stations were received in the morning at the Pointe Larue polling station. 

There was one issue which Mr Morel mentioned, that on the list there were 145 names whilst the envelopes received were 144. There were 145 voters who had voted on other islands according to the list but Pointe Larue voting station had only received 144. The polling agents and Mr Morel realised that there may be a possibility that a person who had not voted may come to the station and try and vote but would not be able to do this as their name had been struck off and that they would be prepared should that happen and neither political party objected to this. Mr Morel was shown the Summary of Votes cast in the second round of the Presidential Elections where it was pointed out that 144 people voted and 144 envelopes were received. He went on to explain the counting procedure and that no complaints or remarks were made from any polling agents. Also that the ballot papers received from the Special polling stations were in tact and there was no tampering of the envelopes. He described the manner in which all the 144 ballot papers were checked and counted.

Mr Georges questioned Mr Morel whether he verified that all envelopes received had, for example, Pointe Larue in the front, which he replied that he did. Mr Morel stated that the most popular means of identification for voting was the use of ID card. He also explained what happened at the end of voting, the procedure which took place to secure the registers, occurrence book, ballot papers and ballot boxes. Mr Morel indicated that he ensured that the ballot papers from the Special Voting station had been counted again in front of the polling agents. Mr Morel stated that reconciliation was not done of the 3 registers at Pointe Larue as this was not standard procedure.

Mrs Aglae called her third witness, Mr Thomas Dauban who was the presiding officer at Plaisance for the Second Round of the Presidential Elections. Mr Dauban described the procedure that took place in the morning at the Plaisance Polling Station. He indicated that there were checks in place to ensure that no one could vote twice.

Mr Georges questioned Mr Dauban whether prior to the opening of the voting station, he had counted the ballot papers received from the Electoral Commission Headquarters. Mr Dauban responded that he did not count each and every ballot paper received as he had done so before the election had started and that the ballot papers had been locked and sealed after the counting had been done prior.

Mr Dauban explained the procedure of what happened at the end of the day when the voting had ended. He continued to explain that the register was locked in a box in the presence of witnesses. He stated that he gave the occurrence book and ballot paper account back to the Electoral Commission.

Mr Georges questioned Mr Dauban about a Barbara Coopoosamy, who was a voter belonging to the Plaisance Electoral Area. A line was drawn across her details and there was cross or asterisk on the line. Mr Georges asked Mr Dauban to go through the register to see whether there were other names which had a remark next to the line drawn across their names. At random, a name was seen to have an asterisk next to the line drawn across their name. Mr Dauban was not aware what the remark meant next to the name which had been crossed off. Mr Dauban admitted that he had seen a few names which had been crossed off with an cross or other remark next to it. If there such an abnormality, common practice would have been that someone would report it to Mr Dauban or his deputy or an entry would have been made in the occurrence book but that was not brought to his attention nor put in the occurrence book. Mr Dauban admitted that inadvertently a name could have been crossed out.

Mr Georges stated to Mr Dauban that on the 18th December 2015, on the main day of voting, Ms Coopoosamy was informed that her name had been crossed off but she was allowed to vote. Mr Dauban in response stated that if she was allowed to vote, than it must have been shown that she had not voted previously, however he stated that the facts were not brought to his attention that Ms Coopoosamy had not voted and that she was allowed to vote despite her name being crossed off.

On re-examination, Mr Dauban stated that if Ms Coopoosamy had come to the station to vote but it was seen she had already voted, that this would have been brought to his attention.

The case will reconvene tomorrow 16 March 2016 at 10 am.

Report compiled by the Special Rapporteur."