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

Day 20– 18 March 2016, 9.30 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 Mrs 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 called Mr Mathiot who was the presiding officer for the Inner Islands. He identified the different polling stations for the inner islands. He stated that on the main day of polling, he was located on La Digue and he went on to explain the procedure followed at the polling station when a person came to vote. Mrs Aglae questioned Mr Mathiot whether he had seen anyone voting twice and he replied in the negative however there was a list which showed that there were two persons who had already voted on the special voting station on Mahe and had presented themselves on La Digue to vote. This issue was brought to the attention of the Electoral Headquarter and an entry was made in the occurrence book of La Digue. The Electoral Commission Headquarter stated that a mistake had occurred when crossing out the names.

Mr Mathiot went on to explain that in the La Digue polling station, he received two lists; a list of voters who had voted at the Special Voting Station before the main polling day and another list of people who were voting on the same day at the National Library which was being regularly updated as and when people were voting and sent to La Digue by fax. He explained what he did when he received the list from the National Library. Mrs Aglae asked Mr Mathiot to identify some names that were on his register which he had identified as his with the list created at the National Library. Mrs Aglae stated that it had been established that there were 53 names which were on the list and not crossed off on his register, and whether he could put forward an explanation for this. He explained that a possibility is human error when a name was called, an officer may have omitted crossing out the name or another possibility which is a remote possibility, is that in his opinion, the list was never faxed to the La Digue polling station.

Mr Mathiot explained that the votes cast at the National Library are physically delivered to the La Digue polling station before its closing and counted along with the list that had been sent to the polling station from the National Library. The procedure for counting was explained, and two possible methods used for counting to ensure that everything tallied. At the end of counting, no objections were raised as everything tallied and all present including the polling agents for the political parties signed the ballot account.

Mr Mathiot confirmed that he did make an entry in the occurrence book in regards to the names of persons who were supposed to have voted at the National Library. This entry was read out from the occurrence book in Court and the book was produced as an exhibit. It was agreed by Mr Mathiot that there was a visit from a member of the Electoral Commission at the La Digue Polling station but he could not recall the woman’s name, he stated at no point did the member of the Electoral Commission have access to his register nor reconciled his register.

Mr Mathiot was present at the Special Polling station that was set up on Silhouette and he indicated that there had been an issue. At the closing of the station when reconciling the ballot papers along with the tally sheet, the list of names and the unused ballot papers, it was discovered that there was an extra ballot paper but the envelopes received and used tallied. An entry was made in the occurrence book in regards to the extra ballot totalling to 251, which was read out in court and the occurrence book was produced as evidence.

Mrs Valabhji inquired about the manner in which the ballot books were presented for Silhouette Polling Station, he responded that he had received 2 books with 100 ballots and a third book with 50 ballot papers. He confirmed that there were 209 people who came to vote. At the end of voting, the unused ballots were counted and there were 42 unused instead of the 41 that Mr Mathiot was expecting. It was recounted to confirm the correct amount was 42 and Mr Mathiot came to the conclusion that the Silhouette Polling Station had received 251 ballot papers instead of 250 as had originally been stated.

Mrs Valabhji asked Mr Mathiot about the La Digue Polling station and whether he could state how many votes were received from the special voting stations. He responded that they had received 185 ballots in envelopes and it tallied to the list received. Mrs Valabhji repeated the process of asking Mr Mathiot to cross-check names on the list from the National Library with his register. Mr Mathiot stated that the person who made the list had recorded the wrong name who had voted and crossed out the person’s name who had presented himself to the La Digue station. There were two registers used at the station as well as a master register which was used to ensure that all names were being crossed out as they were being called at the station, it was according to Mr Mathiot a reflection of everyone who had voted for La Digue.

The Court asked Mr Mathiot whether he did receive the 53 names who had voted on Mahe on the Special Voting Station, he stated that the names were not convened to him by fax.

The Attorney General adopted the same line of questioning with regards to the 53 names, Mr Mathiot added that he did not receive it and that the 53 names were not reflected on the master register on La Digue. He pointed out that as soon as they receive the fax from Electoral Commission, they would cross it off the master register and that he finds it unusual that the list was not faxed.

Mr Georges asked Mr Mathiot to explain his statement that he had made earlier. Mr Georges questioned Mr Mathiot about the ballot papers received by the Silhouette polling station, Mr Mathiot stated that when his deputy counted the ballot papers the night before, there were 250 ballot papers and Mr Mathiot stated that he cannot recall whether it was either his deputy or himself who signed a document stating that the Silhouette Polling station would receive 250 ballot papers. This procedure of counting the ballot papers was also followed for the La Digue polling station.  At the end of counting on Silhouette, a ballot account was prepared and that the extra ballot was reflected on it. A discussion ensued in regards to the extra ballot and Mr Mathiot stated that everything tallied, the envelopes that they had received from the Electoral Commission with the ballot papers used and unused. Mr Georges suggested that possibilities why the envelopes and tally sheets tallied which Mr Mathiot rejected. Mr Mathiot stated that on Silhouette, a laptop was being used to ‘tag’ the voter. It was brought out that the person who marks the tally sheet and who issues envelopes and ballot paper was the same person and that the person who tagged the voters was another person. Mr Mathiot disagreed with Mr Georges that a mistake could have been made when tallying, he put forward that the mistake must have occurred when counting the ballot papers. Mr Mathiot did not make an entry on the occurrence book of this mistake; he only informed his deputy that there was a mistake.

Mr Georges then proceeded to question Mr Mathiot about the La Digue polling station, where Mr Mathiot described the procedure after counting had ended, what he did with the occurrence book, registers and other account tables. Mr Georges pointed to Mr Mathiot that the procedure which he had followed was not the norm which he agreed, however, it was not his call as he was following the instructions of the Chief Electoral Officer, Mr Morin.

The witness explained the procedure and set-up of the La Digue polling station, where he identified that two registers were used along with a master register. Mr Mathiot stated that the master register tallied with the other two registers used on La Digue and it had the list of names of people who had voted at the special polling station at the National Library, the list was sent to them via fax, a couple of times during the day. Whenever a list was received by the station, the voting process stopped and the list was read out so that the master register could be updated by an officer. Mr Mathiot stated that the two registers were not updated against the list as it would have been a duplication which Mr Georges pointed out was a risky procedure to undertake as that would allow a person to vote twice. Mr Mathiot replied that there were procedures in place to ensure that it didn’t happen. Mr Georges questioned Mr Mathiot’s decision to use a master register at the La Digue polling station and whether Mr Mathiot reconciled his master register with the two registers. Mr Mathiot responded that it was not a requirement to do so and that he did not reconcile.

Mr Georges asked Mr Mathiot for an explanation why the 53 names on the list were not on the master register. Mr Mathiot stated that the list of names was not faxed hence why the names were not marked on the master register. Another suggestion was that those names were never called and the person with the master register could have missed out. Mr Mathiot stated that he did not verify the original list of names received at the station. A list of names was crosschecked with the master register and it was agreed by Mr crosschecked with the master register and it was agreed by Mr Mathiot that he did not receive it by fax or if he did receive it, it was not inputted on the register. Mr Mathiot confirmed that he did not check the original list received by the station as the master register had already been marked with the list of names faxed earlier, the officers and himself counted the original list with the ballots from the box received to ensure the two tallied which it did. Mr Georges brought out that on a sheet of the list of names, there were three names missing and asked Mr Mathiot for an explanation, which he explained was that an officer reading the name must have skipped those names or when the names were being read, the master list was not updated. Mr Georges suggested that this might have happened on Silhouette, however, MrMathiot disagreed.MrMathiot disagreed.

The Court adjourned and reconvened at 13.45. Mr Georges continued questioning Mr Mathiot about the La Digue polling station, specifically about the pace at which voters came to vote. Mr Georges implied that the person who was marking the master register might have missed out a name when marking. Mr Mathiot stated that there was sufficient time to flick through the registers to mark however it may be possible a person may have missed out a name, as that should have been the case. For the second round, the process was different compared to the first, there was a master register and the National Identification Number (NIN) was not called out which effectively speeded up the voting process. The witness confirmed that it was the master register which had been marked on the list of names from the special voting station for inner islands two days prior to the main polling day and any names which were received during the day from Headquarters was only marked on the master register. It was reiterated that whenever a list arrived at the station by fax, voting stopped so that the registers can be marked.

An issue with the identification of the registers used at the polling station of La Digue used by the ‘Callers’.  Names were checked on the list with the master register as well as another register used on La Digue, on both registers those names called out had been crossed out.

Mr Georges suggested that it was not only the master register which was updated as shown by Mr Mathiot. Mr Mathiot reiterated that the master register was the only one which was marked with voters from other special voting station and he does not know how the other register was marked but he could not say that a person had voted twice in two different locations. Mr Georges questioned Mr Mathiot how did he correct the mistake, he stated that the correct names were crossed out on the master register, however, it was shown to Mr Mathiot that on the master register the correct names were never crossed out and the wrong names were left. Mr Mathiot stated that he had instructed his officer to amend the error but unfortunately, his officer did not follow his instructions.

Upon re-examination, Mr Mathiot explained how the ballot paper account was filled in; how the figures were inputted on the form. Mr Mathiot stated that the mistake of the two voters was entered in the occurrence which was read out in Court. Mrs Aglae suggested to Mr Mathiot a third possibility why the ‘caller register’ was crossed, that even if Mr Mathiot told his officer that only the master register was to be crossed out, a person with a register may have crossed out on his register as the name was being called. He replied that yes that may be a possibility. The witness stated that the two registers which Mr Georges identified as the registers used at the inner island polling station for La Digue, the handwriting was not his. The diagram which Mr Mathiot drew was admitted as evidence.

Mr Gappy was called as the last witness of the First Respondent, he is the Chairperson of the Electoral Commission, and has been in that position since July 2011. He stated he has experience with elections since 1999. He explained his role in the second round of the Presidential elections and the preparation required. He stated this was the second time that the ballot papers were printed in South Africa, for the second round of the Presidential Elections. He further explained the arrangements the Electoral Commission with the political parties agreed upon for the second round of elections. He relayed that the ink and spray used for the second round had been used multiple times before in prior elections and that the Commission had tested the ink on their staff which showed that the ink stayed too long and that they had to write a letter to the Presiding Officer of the relevant electoral area to allow those people to vote as the ink had remained. No complaints had been made about the ink at this election or in the first round.

Mr. Gappy explained the arrangements the Electoral Commission had made with the Island Development Corporation (IDC) and Air Seychelles for the Outer Islands. There were 15-20 Special voting stations and he explained the arrangement made for one of the outer islands. He gave an example of how two electoral officers, with the police, a representative from each political party, one domestic observer made their way to Alphonse Island. The process of setting up at that Special Voting station was explained and process at the end of voting what the officers did with the votes cast. It was noted that 36 people had come to Alphonse to vote and the 36 votes were then put in envelopes with the respective electoral area.

It was stated that there was a list provided for each Special Voting Station of how many people were expected to come vote, however, there were provisions in place if a person came to Alphonse to vote that the person would be able to vote as long as they presented an ID card to identify themselves. The officer, in this case, will have to look at the master register to ensure that the person is eligible to vote and which Electoral Area they belonged to. There was an incident where this happened on Assumption Island, those people were allowed to vote. Mr Gappy identified the other Special Voting Stations and which category of people could vote at those stations. He explained what happened at the close of each of those Special Voting Stations. There was a tally sheet for each of those stations which facilitate the counting, this method has been used since the start of the multi-party and there has never been an issue.

Mr Gappy described the layout of the sorting room to the court, where he stated the sorting out took place in one room and that everyone could see what was happening and he explained that he invited all polling agents to check whether the seals on the ballot boxes from the Special Voting Station were still intact. There was a list which had been generated by the Chief Registration Officer of all the people who had voted at the Special Stations and a summary was generated according to which electoral area they belonged and this summary was explained to the Court. Mr Gappy identified two problems which occurred at the Special Voting Station, the first was that the wrong electoral area was put on the envelope, it was decided that the two electoral area will remain as it is as this was a Presidential Election and the end result was important. The second issue was that there were two envelopes which had no electoral area, his point was repeated about it being a Presidential Election. The Court asked Mr Gappy whether this was the first time  the mistake of the envelope had happened, he replied that it was not, it had happened before.

The Court adjourned and will resume on Monday 21 March 2016 at 9:30 am

Special Rapporteur