15th February 2016: ELECTION PETITIONS: Summary of Proceedings by the Special Rapporter

Day 4:  MA 13/2016:  Wavel John Charles Ramkalawan v Electoral Commission, herein represented by HendrickGappy, James Alix Michel and 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 ruling on the application MA 13/2016 to strike out the Attorney-General from the CP1/2016 – “Election alleged irregularities” Petition was delivered by the Honourable Chief Justice Twomey.

The Attorney-General is joined as is required Rule 7 (4) of the Presidential and National Assembly Election (Election Petition) Rules 1998. It was unanimously held that the role of the Attorney-General when not representing clients is to represent the interest of government and to provide assistance to the Court. The Court was of the opinion that the Attorney-General was incorrect to align his response with the pleadings and evidence to be presented by the Electoral Commission and Mr James Michel without independent grounds for doing so. Whilst it is not allowed for the Attorney-General to adopt the pleadings of another party, this does not prevent the Attorney-General from coming to a similar opinion as that of another party. Even if the Attorney-General has formed an independent opinion that there have been no irregularities in the election process, it does not mean that this information is within his personal knowledge and therefore cannot be provided as evidence on the Court record through an affidavit. In the defence of the Attorney-General to the Petition the supporting affidavit of Principal State Counsel, Mr David Esparon, places on record his belief that the election was free from irregularities and adopts the pleadings and evidence of the Electoral Commission and Mr James Michel. The Court held that this is clearly not within Mr Esparon’s knowledge or ability to prove and as such the affidavit  fails to meet the requirement of s.170 of the Seychelles Civil Procedure Code** and cannot be admitted into the court record.

It was further held that it would not be appropriate to remove the Attorney-General from a case of such importance. However the Court reminds the Attorney-General of his role to this Court to provide an independent perspective, and when matters fall outside his knowledge or expertise, to remain silent on such.

The Court made the following order:

a.     The application to strike out the Attorney-General is dismissed.

b.     The Affidavit of Mr Esparon is struck out of the proceedings.

c.     The defence on the merits of the Attorney-General is struck out of the proceedings.

The Court then dealt with a new application filed by Mr Wavel Ramkalawan. Mr Wavel Ramkalawan believes that Mr James Michel is in possession of information relating to a number of the alleged illegal practices and prays the Court to call Mr James Michel, at an early stage of the trial, to give personal answers** on some of these denied allegations.

The Chief Justice stated that the matters should be heard inter partes and time was given to the other parties to respond to the Petition. The responses will be heard on Tuesday 16th February at 9 am.

CP 7/2015: “Valid votes” case

Mr Bernard Georges submitted on behalf of Mr Wavel Ramkalawan that the simple issue in this case is whether, on the interpretation of the Constitution, Mr James Michel cleared the threshold of 50% of the votes in the second ballot and consequently whether he should be have been declared President.

Mr Georges submitted that to achieve the 50% threshold the number of votes in favour of each candidate should have been measured against the total number of votes deposited in the ballot boxes at every polling station in the second ballot, irrespective of their content. In the alternative the measurement should be against all votes deposited in the ballot boxes save for those mutilated or torn. Mr Georges submitted that the Court would have determine what the terms “votes in an election” in paragraph 5 and “votes cast” in paragraph 8 of Schedule 3 of the Constitution mean in law, in fact and in practice. If these terms refer to all votes which were deposited in the ballot boxes in the second ballot then the calculation of the Electoral Commission was wrong and Mr James Michel did not obtain more than 50% of the votes. If on the other hand, the terms refer to valid votes only then the calculations was correct and Mr James Michel had obtained 50% of the vote.

Mr Georges relied on four main arguments:

  1. Constitutionally a rejected vote cast in the exercise of a fundamental right cannot be ignored.
  2. On the interpretation of the Constitution, the above terms mean that every vote vast into the ballot box, other than a torn or mutilated vote, are to be counted for calculating the 50% threshold.
  3. A presidential mandate is required to be clear and unambiguous. Only 50% of all votes (save perhaps for a torn or mutilated vote) will achieve that purpose.
  4. The reasoning in the PDM** judgment is sound and is not a bar to this action.

Mr Georges argued Schedule 3 of the Constitution that deals with the Presidential election provides for a threshold that the successful candidate must clear. The effect of this provision is that a subsequent ballot will be held until the threshold is achieved by one candidate and that the Constitution envisages any number of ballots until this is achieved. This threshold however does not exist in National Assembly elections and as such this Petition can be distinguished from the interpretation in the PDM case.

In considering the right of every citizen to vote set out in article 24 of the Constitution, Mr Georges submitted that every vote is to have an equal value. A distinction must be made between a person who consciously decides to vote blank or vote in a manner that the vote will be rejected than a person who stays at home and refuses to participate in elections and the former’s vote should have equal value to that of a person who choses one or other of the candidates. It therefore follows that although it is not counted for all purposes it must be counted for the purpose of computing the 50% threshold.

Mr Georges made comparison with other jurisdictions and referred to the Kenyan case of Odinga v Kenyatta which he argued supports the proposition that a vote is a vote irrespective of whether it is rejected or valid. Whilst the laws in Kenya go as far as to say that a rejected vote is null and void, the laws of Seychelles do not go so far and taking into account the competing rights of citizens Mr Georges submitted that rejected votes, which cannot be ascribed to one or other candidate, should still count towards the threshold.

In addressing the possible scenario that no candidate would pass the threshold in subsequent to the second ballot Mr Georges argued that the incumbent President can remain in power until a person is elected so there would not be a scenario where the Seychelles would be left without a President.  Nonetheless Mr Georges urged the Court not to hypothesize on scenarios may never occur.

In response, Mrs Aglae for the Electoral Commission submitted that the words
“votes cast” in paragraph 8 and “votes in an election” in paragraph 5 are qualified by the word “receive” which means received by a candidate and accordingly can only mean a valid vote. She further submitted that this issue was decided in the case of PDM and that Mr Georges has not brought anything new before the Court to allow the enlargement of the definition of “votes cast”.  She relied on s.34 (2) of the Elections Act to substantiate her argument that where a ballot paper is rejected (as per s. 34 (2) EA which papers are rejected) it is endorsed with the word “rejected” and it is sorted in a different group from the remaining ballot papers towards a candidate hence it is clear that the intention of the drafters of the law is that rejected votes are not to be counted towards the computation of the election results. She submitted that paragraph 8 of Schedule 3 of the Constitution does not make provision for a third ballot and argued that Mr Wavel Ramkalawan was challenging section 34 of the Election Act and article 24 of the Constitution and this was not the proper way to do so. She maintained that the words “votes cast” bear the same meaning whether we are talking of National Assembly election or Presidential election or a Referendum.

Mr Basil Hoareau on behalf of Mr James Michel submitted that Article 24 and Article 113 of the Constitution does not give a citizen an unrestricted right to vote in whatever manner he or she wishes but the exercise of the right may be regulated by law as is necessary in a democratic society. The right to vote is restricted and must be exercised within the framework of the law, that is, the Elections Act. This means that if one does not exercise the right in accordance with the Election Act that ballot paper cannot be taken into account in determining the results of the Presidential Elections.

Relying on the PDM case Mr Hoareau submitted that the liberal meaning of “votes cast” must be read in the context of the principles of democracy which forms the basis of the Constitution and has effects on all other provisions of the Constitution. Accordingly the liberal meaning must advance the principles of democracy and not destroy it. Equating votes cast to total votes will have the effect of destroying the democratic process. The requirement to interpret the Constitution as a whole requires the maintenance of consistency between the provisions of the Constitution; the PDM case has already ruled that votes cast means valid votes in Schedule 4 and interpreting votes cast in Schedule 3 to mean anything other than valid votes would result in inconsistency.

Mr Hoareau insisted that paragraph 5 and 8 of Schedule 3 do not allow for any subsequent ballot following the second ballot and to interpret votes cast as total votes would put us at a constitutional impasse as our Constitution does not provide for a third ballot. If the provisions are interpreted in the way Mr Georges has argued then there is a possible scenario when elections will be held every 14 days, if neither party receives 50%, indefinitely. He supported the arguments of the Electoral Commission on section 34 of the Elections Act that rejected votes are separated and not counted.

In closing Mr Hoareau considered the question: When does a ballot paper become a vote? He submitted that a ballot paper only becomes a vote when the voter uses the ballot paper in accordance with the law and if failing that then the ballot paper remains a ballot paper and never becomes a vote.

The Honourable Attorney-General adopted the submissions made by the representatives of the Electoral Commission and Mr James Michel. He stated in addition that this Petition was frivolous and vexatious and should be struck out.

In reply to the arguments of the Electoral Commission, Mr James Michel and the Attorney-General, Mr Georges stated that the PDM case has not authoritatively stated that “votes cast” in Schedule 3 equals valid votes and reiterated that there is a distinction between Presidential and National Assembly elections. He maintained that the Constitution leaves open the possibility for subsequent ballots following the second ballot and if it intended to restrict the election to only two ballots it would have specifically said so.

The Court will give judgment together with the consolidated CP1/2016 “alleged irregularities” Petition.

The Court will reconvene tomorrow, Tuesday 16th February at 9 am to hear submission on the application by Mr Wavel Ramkalawan to call Mr James Michel on personal answers.

Legal note:

**Section 170 of the SCCP, Cap 213 restricts the contents of affidavits to “facts as the witness is able of his own knowledge to prove, except in interlocutory applications, on which statements as to his belief, with the grounds thereof, may be admitted.”

**Personal answers: section 163 allows a party who is desirous of obtaining the personal answers not upon oath of the adverse party to petition the Court exparte at any time prior to the day fixed for the hearing of the matter to obtain the attendance of such adverse party and the Court on sufficient ground being shown shall make an order granting the application or petition. And the party having obtained such order shall serve a summons, together with a copy of the order, on the adverse party to appear in court on the day stated.

Schedule 3, Paragraph 5. Subject to paragraphs 6 and 7, a person shall not be elected to the office of President unless he has received more than fifty percent of the votes in the election and the necessary number of ballots may, subject to the election being discontinued and recommenced in accordance with an Act, be held in accordance with the direction of the Electoral Commission to achieve that result.

Schedule 3, Paragraph 8.(1) Where in an election to the office of President three or more candidates take part in any ballot and no candidate receives more than fifty percent of the votes cast, then, if the result of the ballot is that -

(a) all the candidates receive the same number of votes;

(b) two or more candidates receive, equally, the highest number of votes;

(c) one candidate receives the highest number of votes and another candidate receives the second highest number of votes; or

(d) one candidate receives the highest number of votes and two or more candidates receive, equally, the second highest number of votes,

only the candidates referred to in subparagraph (a), subparagraph (b), subparagraph (c) or subparagraph (d), as the case may be, shall take part in the subsequent ballot and the other candidates, if any, shall be eliminated.

(2) Any subsequent ballots referred to in subparagraph (1) shall be held not less than seven days and not more than fourteen days after the immediately preceding ballot.

Elections Act, section 34. Counting.

(1) The Electoral Officer or the Designated Electoral Officer, as the case may be, shall in respect of an election or, where the Presidential Election and a National Assembly Election are held simultaneously in respect of each such election separately, in the presence of the candidates, if they are present, with the help of enumerators examine, count and record the number of ballot papers contained in each ballot box.

(2) Where a ballot paper—

(i)         does not bear the official mark referred to in section 25;

(ii)        has anything written or marked by which a voter can be identified;

(iii)       is mutilated or torn; or

(iv)       does not contain a clear indication of the candidate for whom the voter has voted,

the ballot paper, shall be rejected and shall be endorsed with the word “rejected” by the Electoral Officer or the Designated Electoral Officer, as the case may be, and if a candidate or a counting agent of a candidate who may be present objects to the decision of the Electoral Officer or the Designated Electoral Officer, as the case may be, also with the words “rejection objected to”.

(3) The ballot papers, other than those rejected under subsection (2), shall, in respect of an election or, where the Presidential Election and the National Assembly Election are held simultaneously, in respect of each such election separately, be thereafter sorted into different groups according to the indication of the candidate for whom the voter has voted, the ballot papers in each group shall be counted and the Electoral Officer or the Designated Electoral Officer, as the case may be, shall record the number of ballot papers in each group.

(4) The ballot papers shall be kept with their faces upwards while being counted and recorded.

(5) Subject to the decision of the court on an election petition, the decision of the Electoral Officer or Designated Electoral Officer, as the case may be, as to the question arising in respect of a ballot paper is final.

(6) The Electoral Officer or the Designated Electoral Officer, as the case may be, shall prepare a statement showing the number of ballot papers rejected under the following heads—

(a)        want of official stamp;

(b)        writing or mark by which a voter could be identified;

(c)        mutilated or torn;

(d)        absence of a clear indication of the candidate for whom the voter has voted,

and shall, on request, allow the candidate, if present, or the counting agent of each candidate, as may be present, to copy the statement.