22nd February 2016: ELECTION PETITIONS: Summary of Proceedings by the Special Rapporter

Day 8 –22nd February 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).

 At the opening of day 8 of the Alleged Irregularities Petition Case, the Court dealt with two preliminary issues. Firstly, the Court advised all parties that Ms. Aglae had delivered all unsealed registers to the Court and that they could be viewed by the parties during court opening hours. The second issue regarded the production of the audio recording allegedly made at SPDF headquarters, which production was strenuously objected to by Mr. Hoareau. Taking into account the objections, Mr. Bernard Georges has decided not to pursue its production at this stage and instead he will call the makers of the video and/or the makers of the statements to Court to give evidence.

Mr. Wavel Ramkalawan continued to give evidence this morning and began by explaining that the attempt to buy ID cards was a topic of discussion in the electoral reform forum because it had been a big problem in past elections.  He went on to state that the SNP had presented a motion for electoral reform in the past and it had been rejected which led to the boycott of the last National Assembly Election. He explained that the purpose of the boycott was to push the ruling party into a forum for electoral reform.  As a result, a forum was convened and a report was produced to the Vice-President of the Republic, after which certain amendments to the law regarding the elections were made. Mr. Wavel Ramkalawan then produced the report to the Court.

Mr. Wavel Ramkalawan commented that he had been particularly disappointed with the voter education in the 2015 elections and that the Electoral Commission had failed to give sufficient information to persons as to how they could vote and as to what documents if any they were required to produce in order to vote. For example, many people did not know that if they did not have any form of identification they could simply go to polling agent and once identified by two officers/agents they would be able to cast their vote.

Mr. Wavel Ramkalawan then produced the Electoral Commission Handbook for Electoral Officers published in November 2015. He focused specifically on the control of ballot papers and the requirement to verify that each book of ballot papers contained the correct number of ballot papers before polling could commence. This verification was to be done in front of the polling agents at the start of polling and if any irregularities were discovered then these would be recorded in the occurrence book at the polling station.

Mr. Wavel Ramkalawan remarked that he had been given occurrence books relating to some of the polling stations of five constituencies and that in all the occurrence books which he had been given, there was no mention whatsoever of ballot papers being counted in front of polling agents. He stated that according to his analysis, at the Anse Aux Pins constituency there appeared to be two extra ballots compared to the initial inventory and at the Cascade constituency there was a difference of one ballot. It was therefore clear according to Mr. Wavel Ramkalawan, that the electoral officers did not follow their own handbook and it was only upon counting that they noted the extra ballot papers.

It was then the turn of Ms. Aglae to question Mr. Wavel Ramkalawan as to the evidence that he had brought before the Court. It was put to Mr. Wavel Ramkalawan that upon the announcement of the election results, his first statement was to congratulate Electoral Commission for a job well done. Mr. Wavel Ramkalawan admitted that he had congratulated the Electoral Commission for the smoothness of the voting process but that he had also issued a letter to the Electoral Commission requesting a national recount that showed he was not happy and that there had been problems with the voting process. Both letters that Mr. Wavel Ramkalawan had sent to the Electoral Commission regarding the challenge of the results were produced to the Court.

Mr. Wavel Ramkalawan acknowledged that he had been in contact with his polling agents during the polling process but stated that the communication was in regards to general complaints and if required he would then call Mr. Gappy or Mr. Morin to raise the concerns. At the sorting out of the ballots at the special polling station, the agents all signed at the tally but that there signature was as witness to the count only and not an acceptance that there were no problems. It was put to Mr. Wavel Ramkalawan, that if in fact there were any disputes, the explanations would have been sought at the sorting out and that no explanations were sought by the polling agents.

Ms. Aglae told Mr. Wavel Ramkalawan that Mr. Gappy did not reconcile the 3rd register and that in fact the 1st register was used by the caller at the special station, the 2nd was used by the officer who was recording the names of the persons being called out, this record would then be periodically sent to La Digue to be struck off the 3rd register. Therefore what was given to Mr. Wavel Ramkalawan was not a reconciled register but a register used on La Digue, which included the crossed out names of persons who had voted at the special station.

Ms. Aglae took Mr. Wavel Ramkalawan through the registers and it was put to him that there were human errors that resulted in the irregularities. Mr. Wavel Ramkalawan stated that these errors could have made on purpose. Mr. Wavel Ramkalawan explained that he could not identify any names of the 53 extra votes and Ms. Aglae told Mr. Wavel Ramkalawan that the 53 votes were not unaccounted for and that they can be found in the registers if he had compared the registers to the list of voters for the special station. It was put to Mr. Wavel Ramkalawan that the 53 unaccounted votes were marked on the 1st register but not crossed off by the 2nd register and therefore did not appear on the 3rd register, but that they appear on the list.  Mr. Wavel Ramkalawan stated that ‘the term human error is being pushed to the limit’ and points to a major irregularity in that the officers were not doing their job properly and further ‘left the door wide open for double voting’.

It was next the turn of Mr. Hoareau to question Mr. Wavel Ramkalawan.  During the questioning Mr. Wavel Ramkalawan stated that he expected to win the second ballot and was not happy when he did not win and also that he was not happy because of the irregularities that had taken place.  He continued to state that at the forum for electoral reform there where no recommendations that were made as to special station at the National Library besides the recommendation of having all polling on one day which would eliminate the need for special stations.

Mr. Wavel Ramkalawan explained that the purpose of the visit to the Electoral Commission office was to view documents relating to voting on Inner Islands. He and Mrs. Georges had access to the three registers and the list of voters for the Inner-Islands.  He continued that the purpose of the verification was to cross check the records, given that in the Petition the Inner Islands are mentioned and because of the fact that the Electoral Commission would rely upon these documents. Mr. Wavel Ramkalawan maintained that he did not go to view documents to find faults, but once they were advised that there was a reconciled register they thought that they might as well compare the registers and that the 53 unaccounted votes were discovered by a mere coincidence. It was put to him that he should have compared the registers to the list of voters for the special station for a complete comparison and in response Mr. Wavel Ramkalawan stated that if he had been given the two original registers that were used on La Digue then he may have been able to compare the list of voters to the registers used but in the circumstances there was no way of confirming that the voters on the list of voters did actually vote on La Digue. Mr. Wavel Ramkalawan went on to state that it was only as a result of his exercise that the Electoral Commission went back and analyzed the 3rd register and that had they thought about this, it would have been part of there answer to the Petition.

Mr. Wavel Ramkalawan maintained that he cannot on the evidence confirm as to whether there was a mistake or ‘human error’ on the registers, but simply that the occurrence book states that someone named Damien Hoareau voted on Mahe and then someone with the same name voted on La Digue and this needs to be questioned, the same situation occurred for a Mr. Franchette.  He went on further to state that his conclusions are based on the official record of the Electoral Commission and that  ‘there are too many errors’ and ‘human error in so far as 53 names are concerned could have changed the result’. It was put to Mr. Wavel Ramkalawan that he was not being objective and is coming to a conclusion that will suit his side to which Mr. Wavel Ramkalawan argued that he is basing his conclusion on official documents and not on speculation.

Mr Wavel Ramkalawan stated that the main responsibility of the party’s agents at the polling stations was to cross-check persons who presented to vote against their own list of voters but that as the Electoral Commission was to make a list available to the party in respect of voters voting at the special polling stations it was not a priority for the party’s agents to cross-check at the special polling stations.

Mr Wavel Ramkalawan was questioned about the video which he alleged is a recording of Mr. Dolor Ernesta and said that he cannot say that the statements made are true but that these were the words said. He could also not confirm that in 2015 Mrs Anne Desire was an executive committee member of PartiLepep but he knew she was a supporter.

Mr Wavel Ramkawalan said whilst he had never counted people in the queue and he could not ascertain everyone in the queue had received welfare assistance, he noted the queues were exceptionally long. Mr Wavel Ramkalwan acknowledged that people should not be deprived of social assistance during the election period.

It was put to Mr Wavel Ramkalawan that the provision relating to opening times of District Administrator’s Offices in the Shared Code of Ethical conduct by political parties, candidates and other stakeholders related to the main day of election not to any other polling days, and therefore the District Administrator’s Office at Perseverance could have been opened on the 16th December 2015. Mr Wavel Ramkalwan disagreed and said that it applied to districts in which special stations were set up as well, of which Perseverance was one.

Mr Wavel Ramkalawan stated that he was aware of only one occasion that the Government of Seychelles had assisted Seychellois employees at the Indian Ocean Tuna (IOT) and was not aware that Seychellois employees in private sector received gratuities just like civil servants. It was put to him that this 13th month salary for Seychellois employees at the IOT was a result of negotiation made between Government and the IOT prior to May 2015. Mr Wavel Ramkalawan disagreed stating that the issue of the 13th month salary only arose when the SNP made the announcement on the 5th May 2015. 

Mr Wavel Ramkalawan was questioned about the content of Mr David Savy’s comments on Facebook which he interpreted to be threats by Mr Savy to persuade people not to vote for him. Mr Basil Hoareau put to him that this was his interpretation and Mr Savy was engaging in a debate and stating that in fact he was saying that it is up to Etihad and Sheikh Khalifa as to whether Etihad Airways would pull out or not. Mr Wavel Ramkalawan disagreed. He further stated it does not have to be stated and he is a right thinking individual who can read between the lines and see what is being implied by the comments.

Mr Wavel Ramkalawan was asked about presidential pardons. He agreed that the President cannot pardon anyone unless advised by the advisory committee to do so and it is not the sole decision of the President however he does not know if these procedures were followed. He was also asked about Tony Dubignon who was released in 2014. He stated that he did not believe this to be because of a presidential pardon but Mr Dubignon having served his sentence.

 

Mr Wavel Ramkalawan was shown the letter dated the 16th December 2015 sent to Electoral Commission from Mr Nicholas Prea regarding a complaint against the Seychelles Broadcasting Corporation (SBC) for airing an interview of Mr Herminie, the Speaker of the Seychelles National Assembly. He stated there wasn’t a complaint against the Speaker as he thought that Mr Herminie was the agent of Mr James Michel and could campaign and saw no need to make an official complaint. Mr Wavel Ramkalawan felt that the broadcast was using Mr Herminie in his role as Speaker of the Seychelles National Assembly and not as a politician to threaten voters into not voting for him.

Mr Wavel Ramkalawan was asked about the issues that he alleges took place at Anse Aux Pins and shown the occurrence entry made by the polling agent but the entry could not be clearly read.

Mr Wavel Ramkalawan was asked about a letter written in Tamil and he accepted that this was a letter that ‘LinyonSanzman’ (Union of Change) sent on the 9th December 2015 to the Tamil community because some members of the Tamil Community cannot understand English and Creole. Mr Wavel Ramkalawan stated that he had made promises during the political campaign including declaring that ‘Deepavali’ will be made a public holiday and he would have done the same for  Eid for the Islamic community as well as promises of  positions in his Cabinet that included the Tamil community so as to stop discrimination. He agreed that these promises were made to induce voters similar to any promises made during elections.

 

The hearing will resume on Tuesday 23rd February 2016 at 10 am.