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

Day 19 – 17 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).

Mrs Aglae brought the Cascade Register and she made an application to recall Mrs Choppy in the afternoon, which was granted. 

Mrs Aglae called her next witness, Mr Douglas Accouche who was the Presiding Officer of Anse Etoile at the Second Round of Presidential Elections 2015. Mr Accouche explained the procedure of what happened at the opening of the station, where names were called out of people who had voted at the Special Polling Stations which were crossed out from the list. He went on to explain the procedure to receive the envelopes from the Special Polling Station, he indicated that when the envelopes arrive to the station, the voting process stops, for those present to deal with the envelopes. 

It was brought out that there was an issue with the number of envelopes received and the list of names of people who had voted. 284 envelopes were received, however only 283 names were called out in the morning prior to the commencement of voting. Mr Accouche brought this discrepancy to the attention of the polling agents and other officers present. He made a note of this in the occurrence book that they had received 284 envelopes, and he stated that no objections were raised.

 He then went on to explain the procedure of what happened at the end of counting, he emphasized that at each step of counting he involved the two polling agents for the respective political parties. At the end of the count, there was a tally and all those present signed the ballot account. 

Mr Hoareau questioned Mr Accouche on his years of experience which he stated that he has been part of the election process since the 1990s so he is familiar with the process.  In response to Mr Hoaureau’s question he stated that the Election Act governs the procedure of elections and that if there is any inconsistency with the Handbook issued by the Electoral Commission and the Election Act, he will follow what is stated by the Act. There was the hypothetical point of a vote being marked by a ball-point pen, whether he would accept the vote. He stated that he would accept it as the law does not state how a person’s vote has to be marked. Mr Accouche was referred to the Handbook where the point of a felt marker had to be used by a voter, Mr Accouche reiterated that he would still accept the hypothetical vote marked in ball point as long as the marking was clear and eligible and the intention of the voter ‘s choice of candidate was clear. Mr Accouche agreed that the Handbook was for the Electoral Officers and not guidelines for the voters.

Mr Accouche indicated that there was a concern with the ballot papers which they had received, the papers were sticky and there were certain batches of 101 and 99 instead of 100. There were two batches of ballot papers which had 99. He stated that those two batches of 99 ballot papers were left for last. 

Mr Georges questioned Mr Accouche whether he had verified the ballot books prior to the commencement of voting. He replied that there was a random count on the morning of the polling, and he had verified the ballot books prior when he had seen that two of the ballot books had fewer ballots. Mr Accouche  described the method of tallying that was done at the polling station, each tally that was received was sent to the Electoral Commission Headquarters. The checks and balance of the ballots were done at the end of counting, everything tallied up. 

Mr Georges asked Mr Accouche to explain the discrepancy; 284 envelopes were received at the station but only 283 names were on the list which had been sent to the Anse Etoile Polling Station. Mr Georges pointed out that one name had not been crossed out on the register and that there should have been 284 names which should have been crossed out and not 283. Mr Accouche in response explained the procedure of what they did when the station received the envelopes from the other polling station. It was brought out to Mr Accouche’s attention, that if the officers counted the ballots in the boxes and the names crossed out in register, it would show the discrepancy. Mr Georges suggested a possibility that the list provided was correct and that there was an extra ballot to the number which the witness agreed that it could be a possibility. 

Mr Accouche was asked to explain whether the 284 envelopes received at the station were counted separately or jointly with the other ballot boxes where votes were cast at the station, as well as how the counting procedure took place.  Mr Accouche stated that he did bring out the discrepancy to the attention of the polling agents for each political party as well as notified this to Electoral Commission Headquarters. He explained that at the end of voting, a ballot account was completed, however on the account he did not make mention of the additional vote as there was no place that made provision for this but he did make an entry in his occurrence book. 

Upon re-examination, Mr Accouche stated that there were 6 people who signed in receipt of 284 envelopes. He stated that the tally sheet was done simultaneously as the issuing of ballot papers, and that the tally sheet at the station will only show the ballots issued to those who came to the station to vote and not of the people who had voted previously at the special voting station. Mr Accouche added that when making the tally, he and his officers would take into account the tally sheet of people who voted in the station and they would make another entry for the envelopes on the ballot account which they would total together but that there was no extra ballot, only a name missing on the register for the Special Voting Station. 

The Court asked Mr Accouche whether in his years of experience as a presiding officer, whether this was the first time that such a discrepancy occurred in relation to the list received and the envelopes received. Mr Accouched confirmed that this was the first time this has happened. 

Mrs Aglae called her next witness, Mr Steve Thelermont who was a name caller and the person who crossed out names on the register at the Special Voting Station at the National Library. He described the set up of the polling station, as well as the procedure of voting. He stated that there were three name callers; one for Grand Anse Praslin, Baie Sainte Anne and the Inner Islands, one for each table. He was the name caller for the Inner Islands.  At each table, there was a document officer who recorded the details that the Name Caller had read out on a register. He was shown the registers and he identified his register that he used on that day as well as the register  and list of names used by the document officer. 

Mr Thelermont stated that when he called out a person’s name, the Document Officer would record this on a statement. When the statement was full, it would be given to the Presiding Officer who would fax it. At the end of voting, there was a reconciliation of how many people voted and the total amount was 185 voters. This information was handed to the Presiding Officer who then gave the result. Mr Thelermont then explained the ballot papers were sealed in a khaki envelope and the necessary was done to secure those votes. 

Mrs Aglae asked Mr Thelermont to go through certain names that he had crossed out on his register and to cross check with the register of the document officer and with another register that was not used at the National Library. He stated that the relevant information was called out in English.

Mrs Valabhji questioned Mr Thelermont on the number of registers used, he corrected himself stating that there were 4 registers, 2 used by the Electoral Commission and one used for each political party. He stated that the Statement Officer is the same person who was the Document Officer. The distance where he was sitting at the National Library to the Document Officer was about 4 metres and was shown to the Court. It was brought out that due to the infrastructure of the National Library, there was an echo when a name was called out which could have possibly led to someone not hearing the correct line number. 

Mr Thelermont identified his register to the true reflection of people who voted for the inner island as he saw each and every person who came to vote for the inner island. Mrs Valabhji inquired whether there was a possibility that a person could vote twice as he would have seen them earlier, he replied that he would not remember their faces but if he checked the register he would know whether they had voted before. 

Mr Thelermont explained the process the station followed at the closing of voting where he tallied the numbers. He also confirmed that prior to the start of voting, the ballot box was opened to show that it was empty. 

Mr Subramanian on behalf of the Attorney General Chambers inquired about the time the information was transmitted to the inner island. Mr Thelermont was not aware as he left it to the Electoral Commission to sort out themselves. 

Mr Thelermont could not confirm to Mr Georges when Mrs Aglae had shown him the third register. Mr Thelermont was asked to compare his register used at the National Library with the other register. He confirmed that very few names had been crossed out on the register used at the Library compared to the majority on the other register.

  The role of the statement officer was described, her role was to fill in a form when he called out the page, line and name and Mrs Azemia is the person who signed off the form. Mr Georges reiterated that the name of the voter was called out and the statement officer would have heard the name being called out, which Mr Thelermont confirmed. He also indicated that he did repeat what he had said if the statement officer did ask for the information to be repeated if she was unable to catch what he had said.

Mr Thelermont mentioned that there was a constant flow of people who came to vote throughout the day.  He could not give a reply when the names were crossed out on the register by the statement officer. The role of the statement officer was explained. He confirmed that the number of names on the list corresponded to the names called out and in addition he stated that he did a verification from his register and the unused ballots. The only discrepancy was the names and not the numbers. 

The court adjourned and resumed at 13:45 where Mr Georges continued with his cross-examination where he went through various names on Mr Thelermont register list and the list of names. Mr Thelermont acknowledged he was aware of the occurrence book, however he did not use it but was aware that every time one of the sheet of names was faxed, this was entered in the occurrence book.

Mrs Aglae called Mrs Choppy back to court who confirmed that there were four person who were doing the tally at the polling station of Cascade. After the tally sheet was completed, she signed off and it was at the end of voting that the tally sheets were used for the ballot accounts. The ballot account and the tally sheets used were produced to court. 

Mr Hoareau questioned Mrs Choppy whether the tally sheet represented the number of voters who attended Cascade polling station; on the 18th, to which she replied in the affirmative. The Tally sheet would not record the envelopes that were brought to the polling station.  She explained how they counted all the ballots that had been used and unused. She stated that there were 4 person who were doing the tally at the Cascade Polling station and the voting procedure was once again explained as well as what happened to the tally sheet once one page was completed. The tally sheet was used at the end of voting for the ballot account at the end of voting. The Cascade ballot account and the tally sheet for Cascade were admitted to evidence. 

Mr Hoareau inquired whether there was an enumerator present at the polling station, Mrs Choppy stated that there was. An enumerator was explained to be a person responsible for counting voters and reconciling the tally sheets.

Mr Georges inquired whether on the ballot paper account there was a discrepancy to which Mrs Choppy replied that when they had started they had 2600 ballot papers but at the end, there were 2601 ballots. She explained how the total 2601 was calculated however she was not an accountant by profession so she could not confirm; the ballots that were used were counted from the tally sheet and were added to the number of unused ballots.  There was a discussion of how Mrs Choppy got the total of 2601. Mr Georges suggested that the method which they had used was improper and that another method should have been used to calculate. The issue of the 172 ballots from the tally sheet was brought to the attention of Mrs Choppy and she stated that the number was always 172 and not 171 as a witness of Mr Georges suggested. Mrs Choppy denied the suggestion made by Mr Georges that the number 171 was changed to 172.  Mrs Choppy’s explanation for the extra ballot was that when they received the ballot books, there must have been one book with 101 papers and she was certain that there were 2601 ballots which they had received at the Cascade polling station. 

Upon re-examination, Mrs Choppy stated that the tally sheet was handed to her before the counting started and that she relied on the person who put the figure on the ballot account, who was Mrs Monthy.

Mrs Aglae called her next witness, Mrs Linda Monthy who was the person who issued the ballot papers and she was the one at the end of voting who verified the tally sheet and the counting. Mrs Monthy explained the procedure of issuing ballot papers, as well as what happened after a tally sheet had been completed. In addition she stated that after each ballot paper was issued, she would make a mark on a tally sheet. At the end of counting, she was the person who coordinated the counting; taking into account the tally sheet as well as complete the ballot account. She stated that when the officers open the box, she knew the numbers from Special Voting Station as well as the unused ballot papers. 

Mrs Valabhji asked Mrs Monthy to explain what she did when she recorded the tally. She confirmed that she did not give two ballot papers to any voter and in addition, the tables were so close to each other that another person on a different table would see. She stated that she was not under pressure as she had ample of time to prepare to give the ballot paper and ensure only one paper was given. Towards the end of the voting process, she stated that on her last ballot book she was using did not have 100 papers but had 101; there were 79 left from the book and 22 had been used. She had not expected to have 79 and she recounted to ensure that was the correct number.  She brought this to the attention of Mrs Choppy. However, the polling agents for each political party signed that there were indeed 79 ballot papers remaining in her ballot book. 

Mrs Monthy indicated that her tally sheet did not match the number that Mrs Choppy had which was 2600, however she was certain that her tally sheet was correct and that her ballot book had 101 which increased the ballot count to 2601. The SNP polling agent did not object to the 79 ballot papers remaining however after the counting had been completed and the difference was highlighted, he made an entry to the occurrence book and refused to sign the ballot account paper. She reiterated that the tally sheet showed the correct number of ballots received at the Cascade polling station. 

The Attorney General inquired when she realised there was 101 ballots in her book, when did she bring it to the attention of the presiding officer. Her response was that she brought it when the station closed, but it would the presiding officer’s job or her deputy to make the entry of what she reported. She confirmed that there were no alterations to the number 172. 

Mr Georges questioned Mrs Monthy on her tally sheet as to the 100 written on certain pages of the tally sheet. She explained that it was to assist with the counting as well as to let her know when one ballot box had finished. Her total from the tally sheet which she had filled in was 250. It was pointed to her that on one page she did not write 100 which she admitted. She stated that it was only at the end of voting; at 7pm that she had a book with 101 ballots as during the day she had books with 100 ballots. There was a discussion of the extra ballot, where Mr Georges questioned her about her inconsistency of not writing 100 on her tally sheet. He further suggested to her number 2 was not written consistently when the various pages were compared.
 
Mrs Monthy stated that she did report the extra ballot paper in her book to Mrs Choppy but Mrs Choppy was not paying attention as she was busy. She also stated that the secretary of Mrs Choppy also told her that there was a book at Victoria when she had checked had 101, this was mentioned at 7pm. She stated that it was not normal to find 101 ballots in one book, perhaps there was a factory defect that printed an extra ballot. Mr Georges pointed out to Mrs Monthy that she knew of the discrepancy and if she was concerned as she stated she was, she would have brought it to the attention of Mrs Choppy.  She did not notify those present that there will be a discrepancy as she stated that everyone knew there were 22 votes cast and 79 papers remaining. 

She stated that at the beginning of polling, no one at the station counted the books as the secretary had verified this before. The process of counting was described. It was indicated that there was an extra ballot when the number was compared with the number, which was received from the Head Office. From 7pm there was a ballot ‘adrift’, the officers the station recounted 4 times to ensure that there were 2601 ballots. Mrs Monthy stated that the secretary at the station, Ms Madeline had mentioned to her that when she was counting the ballot books; there was a book with 101 and another with 99 ballot papers and Ms Madeline concluded that the two books compensated each other. This information was only relayed to her late in the evening and this information was made known to Mrs Choppy as presiding officer as well as others at the station and that it had been recorded in the occurrence book. 

Mrs Monthy stated that Ms Madeline must have made a mistake on counting; that there was a book with 99 as well as a book with 101 and that she did not make any mistake.  Mr Georges questioned her whether she believed that it was a mystery about the discrepancy to which she replied that it was no mystery at all. 

The Court asked Mrs Monthy how many books were left from her stock. Her response was that there were 3 books which remained. 

Upon Re-examination Mrs Monthy was asked to count how many books she had used. Further her profession as a financial controller she was familiar with numbers  and it was simple mathematics. 

The court adjourned for the day. The case will resume on the 18 March 2016 at 9:30 am.

Report compiled by the Special Rapporteurs