26th February 2016: ELECTION PETITIONS: Summary of Proceedings by the Special Rapporteur
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).
Mr Sopha was called back for cross-examination by Mrs Valabhji. It was put to Mr Sopha that despite having been in police custody and having been put under pressure to sign the document accepting the results that he was still able to make entries in the occurrence book. Mr Sopha stated that despite his state, he felt it necessary to make an entry so that there would be an account of what happened that could be referred to later. Mr Sopha confirmed that, besides that entry, he did not make any other entries in the occurrence book.
Upon being questioned as to why he did not make an entry in the morning to the effect that he was only able to count one batch of ballot papers and not the other batches, Mr Sopha stated he didn’t make an entry because there were other people present although he agreed that he didn’t expect the others to make the entry. It was put to Mr Sopha that the reason he didn’t make an entry was that he knew, having participated in previous elections, that it was not a necessity to count all the batches of ballot papers. Mr Sopha did not agree and stated that he considered it a problem that all batches were not counted. Mr Sopha was questioned as to whether it could be possible that there were 2 extra ballot papers in those batches that weren’t counted. He said he did not accept this as it cannot understand how a mistake of this sort could happen.
Mr Sopha was questioned as to whether the other polling agents for SNP were under his control and Mr Sopha explained that they work together and it is normal for the other polling agents to discuss with him what happened at the time during which they were at the polling station. Mr Sopha was asked whether he received any reports from the other agents in respect of persons voting twice, and he stated that he did not. He further stated that he personally did not observe any persons voting twice. Mr Sopha stated that he also did not receive any reports of any one person placing two votes in the ballot box nor did he witness this.
Mr Sopha was questioned as to whether the SNP seals that he had placed on the ballot boxes were still intact at the time of closing and he confirmed that they were. Mr Sopha was questioned as to whether he witnessed any person adding two extra ballot papers to the other ballot papers whilst counting and he stated that he did not. It was put to Mr Sopha that the two extra ballot papers came from the batches of ballot papers that were not counted at the start of counting. Mr Sopha did not agree with this because he stated that the batches were meant to be the same. Mrs Valabjhi put it to him that he cannot confirm that this is not the case because he never counted all the batches. Mr Sopha stated that he was not able to but was told that the batches were the same as the first that he counted.
Mr Sopha was questioned as to why the ball-pen marked ballot papers were an issue and he stated that according to the procedure in place, when a person comes to vote, he is not meant to bring in any ball-pens with him, and a marker is there to be used. It was put to Mr Sopha that there was no issue with ball-pen marked ballot papers but that the issue was that the ballot papers were marked in favour of Mr James Michel. Mr Sopha stated that his issue was that the marking in ball-pen was not in accordance with the procedure and law. It was put to Mr Sopha that he never objected to the two ball-pen marked ballot papers when they were held up but that it was only after all the ballot papers were counted and after communications via text messaging that he objected to the ballot papers. Mr Sopha disagreed, saying that the moment the first ball-pen marked ballot paper was raised up, he objected, and similarly when the second ball-pen marked ballot paper was raised, he objected again.
Mr Sopha was questioned as to whether the electoral officer threatened to take his mobile phone away from him and he stated that he was not threatened but informed of the legal procedure that mobile phones were not to be used. Mr Sopha was questioned as to why he didn’t make an entry in the occurrence book with respect to the ball-pen marked ballot papers. Mr Sopha stated that he did not think to do so as it was observed by everyone. Mr Sopha stated that the counting agent of Parti Lepep even told him to take the two extra votes for him if he still objects, and when put to him by Mrs Valabjhi that the reason the counting agent of Parti Lepep said this was because he knew it would make no difference to the results, Mr Sopha stated that he believes that the counting agent was using that approach to get him to accept the results.
Mr Sopha was then questioned about his issue with not having received the ballot account paper and whether he made an entry in the occurrence book. He stated that he did not make an entry but kept asking the electoral officer to provide one but it was never provided. Mr Sopha was questioned as to how his inability to obtain a copy of the ballot account form would affect the election results, and he stated that the ballot account form would reflect the same information as was recorded in the occurrence book.
It was put to Mr Sopha that there were two extra ballot papers but not two extra votes. Mr Sopha disagreed.
Mr Sopha stated that the issue was not that the SNP lost on another occasion, but that we should be frank and realistic and recognise that the procedures were different during the second election; recounted the experience of when he was arrested, and stated that these situations are the reason he is here today. It was put to Mr Sopha that the reason for his presence is sheer desperation to find something to ask court to annul the elections. He disagreed.
The Attorney-General was next to cross-examine Mr Sopha. It was put to Mr Sopha that on the morning of the 18th December he was fresh and still composed having not yet been allegedly stopped by the police. It was put to Mr Sopha that after he counted the first batch of ballot papers amounting to 100 that he simply accepted the decision of the electoral officer that there was no need to count the others and that he did not protest. Mr Sopha stated that he objected but that he eventually accepted the decision of the officer. It was put to Mr Sopha that as an experienced polling agent, when he found things objectionable, he would make entries in the occurrence book, but that he did not in this instance.
Mr Sopha was then questioned as to the number of ballot boxes and he stated that yesterday he stated there were 5 boxes but that upon reflection he realises there were 4. Mr Sopha again stated that he could not remember which box the two extra ballot papers were in. Mr Sopha was questioned as to whether, if there were indeed two extra ballot papers, he would know in whose favour the two extra ballot papers were marked. He agreed. It was put to him that he must have made a mistake on his affidavit because he had said the two extra votes were cast in favour Mr James Michel and that in fact he would not know. He agreed. He then agreed that there were three ways to indicate an intention using a tick, cross or ‘x.’
Mr Georges called the next witness, Mr Adolf Jason Dubel. Mr Dubel stated that on the morning of Wednesday 9 December he was at Providence together with a group of approximately 10 persons looking for casual work. He stated Mr James Lesperance approached them and gave them SR 500 to be shared amongst the group. Mr Dubel stated that he knows Mr Lesperance very well; that he knows him to be a businessman and that Mr Lesperance also goes by the nickname “Tonton”. Mr Dubel stated that the money was handed over to him personally and that the group was told to come to Lesperance Complex later that day at around 11 am. He stated that he went, together with a group, to Lesperance Complex at around 11 to 11.30am. He stated that when they got to Lesperance Complex, he met with Mr Lesperance and two other ladies. He stated that there was a meeting and an offer of SR 5000 was made. He stated that on the day he was only given a portion of this offer being SR 2000. He stated that the individuals in the group received SR 2000 from Mr Lesperance and the two ladies who were present. He stated that he was personally handed the SR 2000 by Mr Lesperance. He stated that the remaining portion was to be given on the Thursday before the election period on Friday. He stated that the money was given on a “give and take” basis and he was asked to hand in his ID card and that he did. He stated that the SR 2000 was given at the same time as the transaction was taking place. He stated that he was made to sign a document, like a receipt, confirming that he had received a sum of money. Mr Dubel stated that he received his ID card back in approximately 24 hours. He stated that he got a call from Mr Lesperance instructing him to go to back to Lesperance Complex and that when he did he was handed over a batch of ID cards of all the individuals in the group. He stated that he took the ID cards to another building to be photographed for production in a newspaper and that all the individuals were then returned their ID cards. During cross-examination, Mr Dubel stated that he has occasionally worked on a casual basis for Mr Lesperance and that on each occasion he was paid.
Mr Georges called the next witness, Mr Ron Philip Laporte. Mr Laporte stated that on the morning of Wednesday 9 December he was at Providence together with a group of 14 individual who was approached by Mr James Lesperance. He stated that he knows Mr Lesperance by name but not personally. He stated that Mr Lesperance gave the group SR 500 to share amongst the group. He stated that Mr Lesperance told the group to come to Lesperance Complex at Room 10 because he had a proposition for them. He stated that the group went to Lesperance Complex after they had bought snacks and beverages with the SR 500. He stated that when in the office, Mr Lesperance, made a proposition to them, which was agreed by him and all other members of the group. He stated that in consequence of the proposition he received SR 2000 and the promise of SR 3000. He stated that he had to wait several hours to receive SR 2000 as Mr Lesperance had to go get the money. He stated that each individual in the group received SR 2000. He stated that the SR 3000 was to be received one day before the second round of elections. He further stated that he and the others gave our ID cards. He stated that there was a hand-drafted document that he signed it, and so did the other individuals in the group.
Mr Laporte stated that when he looks for casual work, he usually receives casual work. He stated that upon receiving casual work, he almost never hands over his ID card but that when he does it is only for identification purposes. He stated that the ID card was not returned to him that day but that Elizabeth kept his ID card. He further stated that the other individuals in the group also were not returned their ID cards. Mr Laporte said that after this he went to see a friend, Colin, in order to record a video of what had happened. He stated subsequent to the video, he was contacted by two persons by the names Steve and Natasha, as well as Mr Wavel Ramkalawan and I then went to the SNP headquarters to see Mr Wavel Ramkalawan to report the incident. At the SNP headquarters, he stated that, in his presence, Mr Wavel Ramkalawan called the Electoral Commission to report the incident, as well as Mr Lesperance to say that his actions were not right. Mr Laporte stated that he then went to the police station to see the Commissioner of Police but did not have the chance to do so. He stated that Mr Adolf Dubel, one of the individuals in the group, returned his ID card to him the next day. He stated that on the 16th December he spoke to Mr Lesperance who came to Cascade to see him. He stated that he was given SR 300 and that Mr Lesperance asked him to come to his office. He stated that the request was in relation to the first incident. He stated that he did not go to Mr Lesperance’s office as he felt it would be unethical. He stated that he watched the swearing-in ceremony of Mr James Michel on television and that he saw Mr Lesperance sitting in the front row. On cross-examination, it was put to Mr Laporte that there were other individuals at the swearing-in ceremony and other individuals sitting in the front row and he agreed that he saw other individuals.
Mrs Georges proceeded to question the next witness, Mr Steve Philip Pillay. Mr Pillay stated that he was a counting agent for the SNP in the second round of the elections at Au Cap. Mr Pillay was shown a list of voters from special polling stations that was produced to the Court. He stated that the figure shown at the bottom of the list reflecting the total number of names on the list was 209. Mr Pillay stated that the list was brought to Au Cap and that the list was called out at 6.30 am in the morning. Mr Pillay stated that he was not in attendance in the morning when the envelopes containing the votes in respect of the special polling stations were brought into the station. He stated that he did have occasion to see the envelopes and this was at closing when they were counted. He stated that there were 210 envelopes. Referring to another list compiled at the sorting of envelopes from the special polling stations, Mr Pillay stated that the figure shown in respect of Au Cap was 210. Mr Pillay stated that on the list of voters from special polling stations read out in the morning the number was 209.
During cross-examination, Mr Pillay stated that he wasn’t present when the envelopes arrived from the special polling stations and he was not present at the sorting out of envelopes at the special polling station so he cannot say what happened at sorting. He was again shown the list compiled at the sorting of envelopes from the special polling stations where he identified the signatures of Mr Dereck Amade. It was put to him that Mr Clifford Andre had also signed off this document together with Mr Amade and that they were SNP agents. He was asked to read the figure on the list for Au Cap that he read as 210 envelopes from special polling stations. Mr Pillay confirmed that at counting the results tallied. Mr Pillay stated that he questioned the presiding officer regards the difference of one envelope and that he was told that this extra envelope came from headquarters and had been cleared through. It was put to Mr Pillay that he didn’t know what happened at the sorting out process and what explanation the agents there had been given. It was further put to him that he agreed to sign the document confirming the results at the end of counting because he accepted the results. Mr Pillay stated that aside from the one vote, he agreed, but conceded that he made no objections. It was put to Mr Pillay that besides the discrepancy of one vote, everything else tallied and Mr Pillay agreed.
Mrs Georges called the next witness, Mr Philip Norbert Louise. Mr Louise stated that he was a polling and counting agent for the SNP in the Anse Boileau district. Mr Louise was shown the list of voters from the special polling stations for the district of Anse Boileau. Mr Louise explained that he opened the Anse Boileau polling station and that before voting started the list was read out and everyone made a note of the names. He stated that all the polling agents were given a copy of the list. Looking at the list, Mr Louise stated that there is a figure on the last page that states the total number of names appearing on the list and that is 214.
Mr Louise stated that during the day the envelopes in respect of the special polling stations were brought into the Anse Boileau polling station and that it came to his attention during the day that the envelopes received were counted and it was found that there were 215 envelopes. He stated that whilst he was there at closing, he heard an electoral officer speaking of the fact that 215 envelopes had been received from the special polling stations but that there was only 214 names on the list. Mr Louise was asked to look at the list compiled at the sorting of envelopes from the special polling stations and to state the figure next to Anse Boileau showing the total number of votes and he stated it was 215. Mr Louise stated that he saw that the signatures of Mr Clifford Andre and Mr Dereck Amade on the list confirming as correct the figures. The list was produced to the Court.
Mrs Aglae proceeded to question Mr Louise. Mr Louise confirmed that he was not present when the envelopes were brought to the station. Mr Louise confirmed that he signed the document confirming the results at the end of counting. It was put to Mr Louise that before main polling day the votes from special stations are sorted into their electoral areas and that agents from either party and electoral officers are present during the sorting. Mr Pillay confirmed that he was not present at the sorting. Mr Pillay confirmed that he identified Mr Andre and Mr Amade as the SNP agents present at sorting. He confirmed that he would not know what happened during sorting and what explanation they were given for both signing and accepting the list.
Mrs Valabhji proceeded to question Mr Louise. Mrs Valabhji identified 7 persons who signed the list at sorting confirming 215 envelopes for Anse Boileau at special stations. It was put to Mr Louise that it is possible that the person compiling the list of voters might have missed typing one name and that would explain why there were only 214 names. Mr Louise said he didn’t know. It was further put to Mr Louise that he confirmed all votes tallied at the end and he said yes. Upon re-examination by Mrs Georges, Mr Louise stated that he has not seen this list before today.
Mr Georges called the next witness, Mrs Reginda Alcindor Esparon, a nurse by profession, who works as an administrative officer in the office of Mr Wavel Ramkalawan. Mrs Esparon stated that she use to be a supporter of SNP and now Linyon Sanzman. Mrs Esparon stated that she has been involved in elections before and has twice stood as a candidate in the National Assembly elections. She stated that she was elected in 2002 as a member of the National Assembly for the district of Glacis. She stated that she served on the National Assembly for approximately 8 years both as an elected member and a proportionally elected member.
Mrs Esparon stated that she was a polling and counting agent for the SNP for the district of Glacis. She stated that there are two polling stations, one based at the North East Point (NEP) Hospital (“NEP polling station”) and the Glacis polling station. She stated that some of the residents of the NEP Hospital vote at the main Glacis polling station and some vote at the NEP polling station. She explained that the residents vote by placing their ballot papers in envelopes and then those envelopes would be placed in the box. She stated the Glacis voters that vote at special polling stations also place their ballot papers in the envelopes. Mrs Esparon explained that the residents of the NEP Hospital are aged, infirmed or sick persons.
Mrs Esparon stated that she has been to the NEP Hospital before. She stated that she knows Mrs Anne Desir who was a colleague from when she was a nurse. Mrs Esparon stated that they do not have a close relationship because they have different political views. She stated that Mrs Desir is a supporter and activist of Parti Lepep as she has seen her in rallies wearing the Parti Lepep t-shirt.
Mrs Esparon stated that she was the polling agent at the NEP Hospital during the first round of elections. She stated that, on polling day, she was given a list of the names of residents of NEP Hospital eligible to vote. She was shown a document and she stated that this was the list of the names of residents of NEP Hospital eligible to vote (“NEP Hospital List of Eligible Voters 1”). She stated that she counted the names of residents on said list and there were 151 out of which 94 residents were listed as having voted. The list was produced to the Court.
Mrs Esparon stated that she was the polling agent for SNP during the second round of elections on the 16th December. She stated that the NEP station was open from 8 am to 12 pm. She stated that she was there on the day but not for the entirety of the time as there was another polling agent for SNP present, Mr Savy, at the NEP station. Mrs Esparon stated that at approximately 7.15 am in the morning on the 16th December she received a phonecall from a resident of NEP Hospital. She stated that she called Mr Savy and asked him to go see what was happening and Mr Savy went and reported back to her. She stated that she went to the NEP Hospital at around 7.30 am and did not see Mr Savy. She stated that she went to the presiding officer and together with the presiding officer went through the pre-opening routine.
Mrs Esparon explained how the residents of NEP Hospital vote. She stated that the residents that can walk, come in by themselves, but that the residents that aren’t able to walk, they are assisted by family members or, in their absence, the nursing staff of the NEP Hospital. Mrs Esparon stated that she saw Mr Wavel Ramkalawan that morning at around 9 am outside the polling station. She stated that when they were talking outside the station, she saw the residents of the station leaving the station and she engaged in conversation with the residents. As a result of the conversation the residents she had spoken to then went back to the NEP station.
Mrs Esparon stated that on the day of polling she was given list of the names of residents of NEP Hospital eligible to vote. She was shown a document and she stated that the list showed that there were 116 residents and that 112 voted and the list was produced to court (“NEP Hospital List of Eligible Voters 2”).
She stated that she returned to the NEP Hospital on Sunday following the elections on the 16th where she met a male assistant of the NEP Hospital who gave her a document. She was shown a document in Court and she confirmed that this was the same document that was handed to her. She was asked to read the words on the top left corner and she read them as “Educational Material”. She was further asked to read the words in the margin of the document and she read them as “Publisher Parti Lepep, P.O.Box 901, Maison du Peuple, Ledikasyon Voter”. She stated that on the official ballot paper, the candidate at the top is Mr Wavel Ramkalawan and the candidate at the bottom is Mr James Michel, just as on the document. She stated that there is no SNP logo next to Mr Wavel Ramkalawan’s name on the document.
Mrs Esparon stated that she was the polling and counting agent on behalf of Mr Wavel Ramkalawan at Glacis polling station on the main polling day, 18th December. She stated that only one counting agent was allowed for each candidate at counting and that only one polling agent at a time were allowed in the station. Mrs Esparon stated that prior to the opening of the polling station before voting commenced the names on the list were read out and the electoral officers crossed out the names on their registers and she crossed out the names on her register. She stated that there were 4 registers in use and 4 tables at the station, one on each table. She was handed over a document that she confirmed was the list of names of voters from special polling stations (“List of Names for Glacis from Special Stations”). She stated that the List of Voters for Glacis from Special Stations showed all the voters that voted at NEP Hospital and all the residents of Glacis that voted at other special polling stations and 243 people appeared on this list.
Mrs Esparon stated that 16 packets of ballot papers were received in the morning and each packet was put in a box and then one was placed on each table at a time. She stated that the leaves in the packets were not counted, but that she was informed that if during the voting the ballot papers finished, more would be requested from headquarters. She stated that each time a packet in use on one table finished, the president officer would inform them that a new packet was being given to that table but that the leaves were again not counted. She stated that at closing, the presiding officer showed her the number of packets that were unused and the partly used sheets. She stated that the leaves in the partly used packets were counted but that the unused packets were not counted. She stated that she was told by the presiding officer that each packet contained 50 leaves.
Mrs Esparon stated that the envelopes containing the ballot papers from special polling stations were received during the day but that she doesn’t know the time. She stated that the envelopes containing the ballot papers received from special polling stations were counted separately. She stated that she made notes of what she counted and she can confirm how many were received by each candidate. She was handed over a document and she stated that these were her notes. She stated that the number of ballot papers received from special polling stations was 244 votes; that 172 ballots were in favour of PL and 70 in favour of SNP as well as 2 spoilt ballot papers.
She stated that after the counting she received a ballot paper account from the presiding officer reflecting the final count of ballot papers at the end of the count in the Glacis polling station. She was handed over the document that she confirmed was the same ballot paper account that she received and signed (“Glacis Ballot Paper Account”). Reading from the Glacis Ballot Paper Account, she indicated the total number of ballots received was 2900; the total number of votes cast was 2872 and the total number of votes received from the special polling stations was 244. She stated that the number of votes received by Mr Wavel Ramkalawan was 1500 and Mr James Michel was 1320. She further explained that Mr Wavel Ramkalawan won the majority of votes in each ballot box at the Glacis polling station except for the box containing the ballot papers from the special polling stations where Mr James Michel won a majority of votes. Referring to the Glacis Ballot Paper Account, she stated that it showed that 244 ballot papers were received from the special polling stations but that the List of Voters for Glacis from Special Stations contained 243 names. In addition she stated that one ballot paper was also missing from the two boxes at the Glacis polling station (not the box from the special polling station).
Mrs Esparon was handed over a document that she identified as the summary of ballot papers from special polling stations signed by numerous persons including 3 SNP agents (“Summary of Ballot Papers from Special Polling Stations”). On the list, she read out the figure of 243 in respect of Glacis. She stated that this figure tallied with the List of Voters for Glacis from Special Stations that was received in the morning.
At closing, she stated that she saw the registers placed in a box but not sealed and that a comparison was not made of the various copies. She stated that she was not aware of what was happening in the other stations around the island as she was not allowed to use her mobile phone and that it was only after the votes were counted that she was allowed to use her mobile phone.
The Court adjourned until Monday 29th December 2016 at 9 am.
Report of the Special Rapporteur