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

Day 21– 21 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 continued to question Mr Gappy, he went through the sorting process that took place at the Special voting station. He described the different steps the Electoral Commission took for counting and what they did with the ballots received from the special voting station. He went on to explain the figure 4100, what it represented, which was the number of people who voted at the special voting stations. He stated the checks in place to ensure the envelopes received from the special voting stations were not tampered with, where the Electoral Commission and the political parties put their seal on the envelopes. The procedure that took place before the opening of each electoral area was explained in relation to the ballots cast at the Special voting station, as well as when the envelopes were sent from Electoral Commission to the relevant Electoral Area (convoys took the batches of envelopes to each polling station, convoys were constantly under the supervision of police officers as well as parties representatives). Mr Gappy then explained how the Commission generated the list of people voting at special polling stations in the days precedent the main polling day.

The Court asked Mr Gappy whether the information on the envelopes not corresponding to the list of names he mentioned in the last court session on Friday, was conveyed to the relevant Presiding officer of the electoral district. He stated that it was not at the opening of the station, however during the course of the day, this became known and the Electoral Commission then explained to them what had happened.

Mr Gappy explained that there were checks in place to ensure that a person does not vote twice; there were the two special ink, the invisible and the visible one and there was the list that had been generated and read out prior to the opening of the station. There was no report made of any person coming to vote again. There was a supplementary list provided in addition to the Electoral Officers register, which had been agreed by the political parties prior to the election. The purpose of the tally sheet was explained by Mr Gappy, which is to verify that each ballot issued is accounted for. He went on to explain how the ballot account form was filled in; the district of Cascade was used as an example. After the ballot account form was completed, it was communicated to the Headquarters, Mr Morin will verify it and will summarise the results and present it to the Commissioner. It was explained that the account is made starting from the tally mark together with the number of votes coming from special polling stations and unused ballots, not the register. The final calculation of votes was based on valid votes, this calculation was used for the first and second round.

The ballot box which had the summary of ballot paper was opened in court, Mr Gappy went through the summary of ballot papers and through the list of names with the envelopes received for each electoral area. The following areas were brought out: Anse Boileau, Anse Etoile, Au Cap, Bel Air, English River, Pointe Larue, Grand Anse Praslin and Plaisance– they had a difference between the number of envelopes received to the list of names. It was brought out that there were two names in particular, one voter from the Anse Etoile Electoral area and another from Au Cap who had voted at the English River Special Voting station, whose names were not on the main register but on the supplementary list of voters. Those two names accounted for the relevant electoral area which were missing one name on the list as opposed to the envelopes received. This was Mr Gappy’s explanation of the difference of envelopes to the list of names.

Mr Hoareau questioned Mr Gappy whether any complaints were received from the representatives of the SNP if the seal had broken from the khaki envelope, he replied in the negative. Mr Gappy stated that the ballot account was filled in before the ballot box was open which was in accordance with the rules prescribed in the Electoral Commission Handbook.  He confirmed that the person giving the ballot paper is the same person who marks the tally sheet, and the tally sheet of Cascade was shown to confirm that this was done. Mr Gappy had mentioned when being questioned by Mrs Aglae last Friday 18 March 2016 that the tally sheet was used since the time of Judge Sauzier when he was involved in elections; around the early 1990s. There was an Electoral Reform Committee which was set up two years ago and it was brought out by Mr Hoareau that Mr Ramkalawan (the petitioner) was part of that committee assisted by his counsel, Mr Derjacques. Mr Hoareau asked Mr Gappy whether Mr Ramkalawan made any recommendations to the committee about the tally sheet or ballot account or whether any adverse comments were made, Mr Gappy replied in the negative.

There were several registers used at each polling station in the second round, and the political parties had agreed to this arrangement even in the first round.  The qualifications to vote are, a person must be a citizen of Seychelles, 18 and over and must be registered in one of the electoral areas, merely being a Seychellois does not qualify a person as a voter. Mr Gappy confirmed that in the first round results were computed on valid votes, as well as in the second round and previous elections. He also stated that the two voters who had voted at the special voting station, their names were not on the main register. At the conclusion of voting or counting, reconciliation was not done as this was not practicable nor is it a recognized best practice and that each polling station relies on their tally sheet which is a quicker method to check how many people have voted. Mr Hoareau inquired whether at the end of the first round Mr Ramkalawan made any recommendations in respect of tally sheet or reconciliation of registers, Mr Gappy replied in the negative.

Mr Georges questioned Mr Gappy on his experience as an electoral commissioner and as chair, Mr Gappy replied that he had over 15 years of experience. Mr Georges asked Mr Gappy what constituted a successful election in his opinion, Mr Gappy explained his idea by making reference to liberal freedoms, fairness, transparency and openness. Mr Georges stated that Mr Gappy failed to mention outcome as a part of his explanation to which Mr Gappy responded he did not regard the outcome as one of the fundamentals, he looked at other fundamentals and there are international observers and the police to ensure that no violations of the laws are perpetrated. Mr Georges further stated that he made no mention of any set of rules that guide the election to which Mr Gappy responded that the Electoral Commission relied on the Constitution and laws of Seychelles, but there is a set of guidelines for proper conduct. Mr Gappy stated that the law was binding, however, the handbook they issued constitutes a set of guidelines through which experienced people can share their practical experiences. The handbook was there to guide people and it was not followed strictly as it made provisions for some leeway but it was followed in its essence. Mr Georges inquired whether when conducting elections the electoral commission drew from reports and recommendations of other bodies such as observers. Mr Gappy’s response was that they do try to interact with international observers and take on board their suggestions but these are not binding. Mr Gappy was asked whether he read important assessments and best international practices suggested by organisations in relation to elections, he replied in the affirmative but he did not read a report mentioned by Mr Georges, namely by ACE (Electoral Knowledge Network) but he has read another report by IDEA (International Democratic Electoral Assistance).

Mr Georges began the afternoon session by informing Mr Gappy about ACE as a world-leading network on elections best practices. After Mr Gappy confirmed that he has heard of it, Mr Georges informed him about a series of guidelines suggested by ACE. Mr Gappy restated that these are not desirable practices in Seychelles where tally marks work best. Mr Gappy agreed that it is good to know what the starting number is when counting votes. Mr Georges pointed out that for ACE, reconciling votes and lists is the best practice but Mr Gappy replied that in a small country, efficiency is key so that practice is not used. Mr Georges stated that this could prejudice the rights of the loser but Mr Gappy assured the court he was confident of the result.

Mr Georges pointed to Mr Gappy that the law makes no provision for tally sheets and that the Elections Act  (S 25 (1) (b)III) provides that a mark is to be made on the register directly. Mr Gappy agreed but only as regards to voting register. However when the final account of votes is done, the tally is made against the tally sheet and not the register. Mr Georges asked Mr Gappy if his office has received any report by national or international observers missions, to which he replied that his office may have but he has not read any. It was agreed that it is fair to assume that because of this case, observers have not submitted reports yet but have given interim reports in the media.

Mr Georges proceeded to ask about accessibility to the voting boxes and registers at the Commission’s Headquarters. Mr Gappy explained that only Mr Morin and himself have access to the ballot boxes and register. When sourcing the boxes from Cascade, Mr Gappy confirmed there were no party candidates’ seals on the boxes opened in the morning session. Mr Gappy then answered a series of questions on the exact procedure for handling of occurrence books.

Mr Georges then asked Mr Gappy if he was aware that his defence as First Respondent had been amended early last week. The answer was in the positive as some registers contained mistakes. Provided he knew of the existence of the supplementary list, Mr Georges asked whether Mr Gappy was aware of the identity of the two people discussed in the morning session (Ms Pillay and Ms Belle) at the time his defence was changed, he could not provide an answer to Mr Georges’ question.

Mr Georges then had Mr Gappy explain what happened to the boxes coming from polling stations in outer islands and the lists of voters who had voted there as well as the names of people who came to vote whose names were not on the original list. It was brought out that some mistakes were made by the Electoral officers issuing ballot papers and envelopes; putting the wrong electoral district on the envelopes, but this would not be reflected in the lists recording the number of voters. Court intervened to ask Mr Gappy how many wrongly marked envelopes there are with the 2 unmarked envelopes, Mr Gappy answered 10.

Mr Georges then asked about the special station at Headquarters for Praslin and La Digue which does not have a list of voters to start with. Mr Gappy explained the list is made by the polling agents who take note of the names and details of voters as soon as they come in the polling station. The list is then faxed to the polling stations on Praslin and La Digue, in order to avoid double voting. If the list is not faxed, Mr Gappy stated that there are other checks in place to prevent double voting; officers can rely on inking in order to avoid double voting. Mr Georges suggested that the ink might fail, but Mr Gappy replied in the negative and stated that there are enough preventive measures against double voting. Mr Georges informed Mr Gappy that many lists were not faxed to La Digue to which Mr Gappy replied that he was informed that the lists were being faxed and there was a final list which was sent to La Digue polling station but should the list not be sent, this would be a violation of the rules.  Mr Georges stated that there were two names which found themselves on the calling register which should not have been there, Mr Gappy stated that it was human error but there was no double voting.

Mr Gappy then confirmed he had encountered the petitioner Mr Ramkalawan and his counsel Mrs Georges to hand over registers of inner islands. He did not accept the suggestion made by Mr Georges that he had told them he was handing over a reconciled list for the inner islands as the Electoral Commission does not have any reconciled list. A discussion took place about those registers to ascertain whether those registers were compiled for the inner islands, however, an answer could not be provided as he too unsure about it.

The Court adjourned for the day and will reconvene on the 22nd March 2016 at 9am

Special Rapporteurs