29th February 2016: ELECTION PETITIONS: Summary of Proceedings by the Special Rapporteur

Day 13 –29th 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).

The Court reconvened this morning and Mrs Aglae proceeded to cross-examine Mrs Esparon. Mrs Esparon confirmed that on the morning of the 18th December 2015whilst at the Glacis polling station she did not observe any issues that required making of entries in the occurrence book; that the ballot boxes were empty, that the List of Voters from Special Stations was read out in her presence and that she did not observe any person voting twice. Mrs Esparon was referred to her notes and asked as to when she made corrections to the figures and stated that when she was told that 244 envelopes were received from the special polling stations, the envelopes were searched again and one ballot paper was found to have been stuck inside an envelope. It was put to Mrs Esparon and she confirmed that she was not present when the envelopes were received. It was put to Mrs Esparon that there could have been an error in the counting of the envelopes and she stated that she didn’t know. It was put to Mrs Esparon that the correct amount of envelopes received was 243. It was further put to Mrs Esparon that there is no legal obligation on the presiding officer to provide her with a copy of the Glacis Ballot Account Paper to which Mrs Esparon said she was not aware.

 

Mr Hoareau proceeded to question Mrs Esparon. Mrs Esparon was referred to the occurrence book for North East Point (NEP) Hospital in respect of the 2nd round and she confirmed that she only made one entry. She further confirmed that there were no entries made by other SNP polling agents. She confirmed that she made one entry but that was dealt with.  It was put to Mrs Esparon that Mrs Anne Desir is a Parti Lepep supporter and not an activist and Mrs Esparon said that it was her opinion that Mrs Desir is an activist. It was put to her that the fact that there were more patients on the NEP Hospital List of Eligible Voters in the 2nd round could be the result of extra persons having been admitted to the NEP Hospital between the 1st and 2nd round and she confirmed that this could be the case. She further confirmed, upon it being put to her, that in general, voter turnout was greater in the 2nd round. (Correction: The Special Rapporteur Summary of Proceedings Day 12 incorrectly stated that NEP Hospital List of Eligible Voters 2 showed 116 residents. This should have been 156 residents).  

Mrs Esparon was questioned as to her presence at the Glacis polling station and she confirmed that she was present in the one hour morning, 30 minutes at midday and 30 minutes before closing. She stated that she was aware that there would be more than one register in use at the Glacis polling station. Mrs Esparon stated that she did not observe any voter leaving the station with a ballot paper and she did not observe any person tampering with the ballot boxes. She also stated that there were no complaints made by the other SNP polling agents in respect of those matters. Mrs Esparon was referred to the Summary of Ballot Papers from Special Stations and confirmed that the summary stated 243 ballot papers in respect of Glacis. She confirmed that the summary was signed by seven persons including the SNP counting agents and Reverand Christine Benoie, a priest from the Anglican Church representing CWS, a group of local observers.

Mrs Esparon was referred to the notes she took of the counting of the ballot papers from the special polling stations. She confirmed that she wrote a figure of 171 in respect of Parti Lepep (PL) but then changed it to 172 after a ballot paper was found stuck inside an envelope. It was put to her that had she kept the figure of 171 for PL, 70 for SNP and 2 spoilt, that this would amount to a total of 243. Mrs Esparon agreed but said that the polling agents that were present when the envelopes were received informed her that there were 244 envelopes. Mrs Esparon agreed that she could not confirm this herself as she was not present when the envelopes from the special stations were received. It was put to Mrs Esparon that the correct number of envelopes from special polling stations was 243 and not 244 to which Mrs Esparon disagreed.

Mr Georges proceeded to re-examine Mrs Esparon. She stated that the entry made of 244 on the list under “Number of Ballot Papers Received from Other Stations” was made by the presiding officer and not her and it did state 244. She confirmed that on the first count of the envelopes from the special stations, there were 171 for PL, 70 for SNP and 2 spoilt and that on the second count there were 172 for PL, 70 for SNP and 2 spoilt. Mrs Esparon was referred to the Glacis Ballot Paper Account. She stated that there was an asterisk and note made by the presiding officer next to the total votes of 2861, and that the note read “short by one ballot paper”. She stated that there was a total recount of the ballot papers from the special polling stations but that there was no recount of the ballot papers from the main Glacis polling station as these were already counted twice as per standard procedure. Mrs Esparon was asked to look at the occurrence book for the Glacis polling station and asked to read a specific entry which she read as follows “9.28 hrs. Mr Ferley. Envelopes 243. Recorded as correct 244 instead of 243. Headquarters faxed report.” She stated that there is a circle around 244. She further stated that the occurrence book contained a tally showing 244 as the total signed by Mr.Shamlaye, the presiding officer. Mrs Esparon stated she believes Mrs Desir to be an activist as she has seen her at rallies in the Parti Lepep t-shirt and that she is very active in districts doing campaigning. Mrs Esparon then went through the NEP Hospital List of Eligible Voters 1 and 2 and identified individuals that had not voted in the 1st round but voted in the 2nd round. She stated that the individuals were resident at the NEP Hospital during the 1st and 2nd round and that the same facilities were open to them to vote in the 1st as in the 2nd round.

Mr Georges called the next witness, Mr Antoine Onezime, the Chief Executive Officer of the Seychelles Broadcasting Corporation (SBC). Mr Onezime was asked whether on the 15th December 2016 the SBC recorded an interview with Dr Patrick Herminie, Speaker of the National Assembly, in both English and Creole. Mr Onezime stated the English interview was aired on the 15th December during the news bulletin. Mr Onezime was questioned as to whether the interview in Creole was aired and he stated that it was not aired on television. Mr Onezime stated that he later found out that the interview was aired on social media and that, to his knowledge, the SBC did not release the interview to social media. He stated that it was the procedure to post interviews on the SBC website after interviews had been aired on television but that this interview was not posted on the SBC website. He stated that the reason for not airing the interview was a result of complaints made to the Electoral Commission. MrOnezime was asked to return to Court in the afternoon when a video would be shown to the Court.

Mr Georges, therefore, proceeded to call the next witness, Mr Marcus Simeon in the meantime. Mr Simeon is the Chief Executive Officer of the Agency for Social Protection. Mr Simeon stated that the offices of the Agency are located principally on the ground and first floor of the Oceangate House and that there are decentralised offices in the districts. Mr Simeon stated that his office is situated on the 1st floor of Oceangate House. Mr Simeon, focusing on the payment of welfare assistance by the Agency, stated that persons wishing to obtain welfare assistance must make an application either in their districts or at the Oceangate House. Mr Simeon explained that the application is means tested; a comparison is made between the person’s income and standard weights established under law in order to determine whether a person can receive welfare assistance. Mr Simeon explained that once an application is lodged into the system, the system automatically performs the calculation and based on the results, any officer or himself can approve the application. Mr Simeon stated that it takes a matter of minutes for the calculation to be performed by the system so that an application can be approved within a few hours on the same day or within three to five days if there is a need to investigate further. Upon being questioned as to whether there is a process of verification, Mr Simeon explained that the Agency is linked to different bodies such as the Seychelles Revenue Commission and the Pension Fund, enabling them to check whether the person making an application has a declared income. Mr Simeon was shown the letter in respect of Mr Marlon Zialor earlier produced to the Court. He confirmed that this was a standard letter printed by the system as a result of a person lodging an application through the system. He further confirmed that the letter was signed by him. 

Mr Simeon was asked about welfare assistance payments by the Agency in 2015 and stated that there was a constant rise in payments in 2015 which peaked in November. He explained that during the year the main reason for the constant rise was that more people were qualifying for welfare assistance as a result of amendments to the weights made in May and August (weights increased). He explained that the peak in November was the result of an announcement made by the Ministry of Fisheries and Agriculture with regards to welfare assistance to fishermen. He stated that the total sum paid in November 2015 was just under 9 million rupees and that just over 4 million of that was paid to the fishermen leaving approximately 5 million towards usual welfare assistance. Mr Simeon was then asked to read the record of daily payments made in December 2015 but he only had a record of weekly payments which was read out. Mr Simeon explained that in week 2 of December 2015, in addition to a weekly payment, there was also payment of the monthly payment (payment made persons that qualify for welfare assistance throughout the year). Mr Simeon read the figures for December 2014 confirming that in Week 2 there was also payment of a monthly payment in addition to the weekly payment.

Mr Hoareau proceeded to cross-examine Mr Simeon. He was shown the letter pertaining to Mr Marlon Zialor. Mr Simeon stated that he was familiar with the application made by Mr Zialor and that the application was made on the same date as the letter (16th December). Mr Simeon stated that the application was made before one of his officers and that he did not personally see Mr Zialor. He stated that as per the application, a copy of which was presented to the Court, Mr Zialor claimed to be unemployed and living with his pensioner mother and his child whom he had to assist. Mr Simeon stated that given such circumstances as well as the fact that the upcoming days were public holidays before which he needed to buy food, his application was approved. He confirmed that the application also stated that Mr Zialor used to work at Raffles Hotel on Praslin as well as with his brother in law in respect of a beach cleaning business. He stated that this information was made in the “comments” on the application form and the application form together with the file pertaining to Mr Zialor was produced to the Court. 

Mr Simeon was questioned as to whether this was the first Mr Zialor made an application. He stated that an application was made in September 2014 when Mr Zialor sought assistance on grounds that he was living with his unemployed partner and his partner’s child on La Digue and that Mr Zialor received SR 500 for three months given that Mr Zialor was employed at the time compared to December 2015 when he was not employed. Mr Simeon confirmed that it was not unusual for an application to be made and processed on the same day and that the law permits the Agency to do this. He reiterated that applications can be processed within minutes as the calculations are done automatically by the system. Mr Simeon was questioned about the increases in weights throughout the year of 2015 and he stated that the increases were made by legal instrument signed by the Minister following proposals made by the policy body for social affairs together with the Agency, weights were increased in respect of day care being announced by the President in his National Day address in June.

Mr Georges proceeded to re-examine Mr Simeon. Mr Simeon stated that the 2014 application was made in Mr Zialor’s district. Mr Simeon was asked to look at the 2014 application; specifically, the section dealing with household information where there was a name filled in. Mr Simeon was then asked to look at the 2015 application under the same section where there was no name filled in. Questioned as to why it was not stated there that Mr Zialor lived with his pensioner mother but that this was only stated in the comments section of the application form, Mr Simeon explained that including the pensioner mother in the household information section would result in her pension being taken into account in the calculation of welfare assistance to Mr Zialor and result in a reduction. Mr Simeon stated that it is not correct procedure for a pensioner’s pension to be used to sustain an individual capable of employment in this manner. It was put to Mr Simeon that he wanted Mr Zialor to succeed and not fail in his application to which he agreed. Mr Simeon agreed that when Mr Zialor made an application in 2014, the Agency did not simply take Mr.Zialor’s word but did their own cross-checking and noted the results of the exercise in the comments section of the application form. Mr Simeon was asked why there was no cross-checking done in respect of the 2015 application and he stated as the system is linked to the SRC and Pension Fund they checked if Mr Zialor was employed or not. When asked why this was not reported in the comments section, Mr Simeon stated that it was not cross-checked. Mr Simeon confirmed that the 2014 application was stamped received by the Agency on 16th September 2014 and the letter confirming payment of welfare assistance was dated 23rd September 2014, a week later. Mr Simeon was questioned as to the 2015 application and letter date and he confirmed that they were both dated the same date. 

Mr Georges called the next witness, Mr  Brian Commettant who is the  Head of the Research and Statistics department  of the Governor of the Central Bank to appear on behalf of the bank. Mr Commettant stated that the fiscal statement of accounts for 2014 and 2015 showed that the “total expenditure by government on social programmes” was 82 million in December 2015, 30 million in November 2015 and 47 million in October 2015. The total for the year 2015 was 405 million. Mr Commettant stated that the total for the year 2014 was 356 million and that there had been an increase of 14% between 2014 and 2015. The figures for the year 2014 in respect of the “total expenditure by government on social programmes” was 54 million in December 2014, 26 million in November 2014 and 41 million in October 2014. (Note: all figures have been rounded up).Mr Commettant stated that in both years, December had the highest figure and that in respect of December 2015, the next highest figure was recorded in October. Mr Hoareau cross-examined Mr Commettant as to what “social programmes” in the phrase “total expenditure by government on social programmes” meant and he stated that he did not know. Mrs Aglae and the Attorney-General adopted the questions of Mr Hoareau.

The Court reconvened in the afternoon and Mr Georges re-called Mr Antoine Onezime. Mr Onezime was shown a video recording of interview in Creole with Dr Patrick Herminie which he confirmed was the same interview that the SBC recorded and which he saw posted on the Facebook page called Dan Lari Bazaar. Mr Onezime stated that an extract of this interview in Creole was run on SBC radio at 4pm.

Mr Hoareau cross-examined Mr Onezime. Mr Onezime stated that it was the SBC that sought the interview with Dr Herminie in his capacity as the head of the legislature. Mr Onezime stated that the main news bulletin is the 8pm news bulletin on television and the 7pm news bulletin on radio.  Mr Onezime stated that the interview was not aired on the main news bulletins on television or radio but that an interview in English was aired on the news bulletin at 7pm on television in addition to the extract of the interview in Creole on the radio. The Attorney-General asked Mr Onezime if he was acting as an agent for Mr James Michel and he stated that he was not. On re-examination by Mr Georges, Mr Onezime stated that he did not interview Dr Herminie personally. Mrs Aglae and the Attorney-General adopted the questions of Mr Hoareau.

Mr Georges next called Mr Patrick Savy. Mr Savy stated that he acted as a polling agent for Mr Wavel Ramkalawan at the special polling station at North East Point (NEP) on the 16th December. He stated that early that morning he received a phone called from Ms Regina Alcindor-Esparon and that he went to the special polling station at NEP which is located at the Old Peoples’ Home. Mr Savy stated that when he arrived at the Old Peoples’ Home, he entered the female ward that was located next to the special polling station and saw Mrs Anne Desir. He stated that the ward contained elderly persons’ beds and that there were approximately 25 elderly persons either sitting next to or lying down on their beds. He stated that he saw Mrs Desir walking from bed to bed and that when she saw him, she left the room and later returned with Ms Vicky van der Westhuizen. He stated that Ms Vicky was a previous member of the National Assembly for the Parti Lepep and a polling agent for the Parti Lepep. He stated that Ms Vicky shouted at him that he was not allowed to be there and to leave. He stated that since she was applauded by Mrs Desir, who was the person in charge of the ward, he left the ward. He stated that Ms Vicky and Ms Desir told the police officer to remove him and not to let him in again, but that the police officer didn’t do anything as he was already leaving on his own. He stated that he was wearing his Linyon Sanzman badge when he went to the station that morning. He stated that he returned to the station in the afternoon and saw that there were many more members of staff than he had previously observed on a visit of the Old Peoples’ Home before elections. Mr Savy stated that when he went to the Old Peoples’ Homes on polling day there were also more elderly people in the ward, approximately 10 more people.

Mrs Aglae questioned Mr Savy as to whether he made any entries in the occurrence book and he stated that he did not. Mr Hoareau then proceeded to examine Mr Savy. Mr Savy was asked when it was that he visited the Old Peoples’ Home before December 2015 and he stated that it was in October. It was put to Mr Savy that he never saw Ms Vicky in the ward but it was Ms Desir that asked him to leave and called the police officers to remove him and that it is only when Ms Vicky heard the commotion that she came into the ward to see what was happening and that is when he was removed by from the ward by the police officers. Mr Savy stated that Ms Vicky shouted at him. Mr Hoareau put it to Mr Savy that he had stated in his affidavit that Mrs Desir shouted at him and that there are inconsistencies between his testimony and his affidavit and Mr Savy stated that he came here to tell the truth. The Attorney-General questioned Mr Savy as to whether it was Ms Vicky who shouted at him and he stated that both Ms Vicky and Ms Desir shouted at him.

Upon re-examination by Mr Georges, Mr Savy again stated that Ms. Vicky shouted at him to leave from the moment she entered the ward. He was read an entry from the occurrence book made by Ms Vicky at 7.45 am that she personally asked Mr Pat Savy to leave the ward and he stated that is indeed what happened.

Mrs Georges called the next witness, Mr Gervais Henri. Mr Henry stated that he was a polling and counting agent for the SNP at theEnglish River polling station on the 18th December 2015. Mr Henri explained the pre-opening procedures and stated that the names of the persons on the List of Voters from Special Stations in respect of English River were read out and the list contained 259 names. Mr Henri was shown the Summary of Ballot Papers from Special Stations and he stated that the total in respect of English River was 262 and that this tallied with the number of envelopes received at the English River polling station. Mr Henri explained the counting procedure. He stated that in the morning he was informed that 2400 ballot papers were received and that in the evening the number of ballot papers unused was deducted from the total number received in the morning. He stated that each ballot box was counted separately. He stated that 3 registers were in use at the station and that the registers were not reconciled to end up with one register nor were the names on all 3 registers were not counted, but that the total is only obtained from the number of ballot papers issued and the number of ballot papers in the ballot boxes. He stated that the purpose of ID cards is for identification purposes. He stated that his office received many calls as there was confusion amongst the public as to what official document could be used and the perception was that ID cards was the only form of identification document allowed. He stated that voter education on the issue wasn’t clear.

Mrs Aglae questioned Mr Henri as to whether he observed that the ballot boxes were empty and he stated that they were empty. He stated that he did not count all the batches of ballot papers, only one of 100, and that he was satisfied, He stated that he did not notice anyone voting twice or in the name of another person or not being able to vote because they did not have their ID card. Mrs Aglae questioned Mr Henri as to whether he was present during the sorting of the ballot papers at the special stations when the Summary of Ballot Papers from Special Stations was prepared and signed off by the SNP agents and he confirmed that he was not present. He was asked whether he would trust the signing off of the SNP agents and he said he supposes he would. He was asked whether at counting he noticed anything out of the ordinary in respect of the ballot boxes and he confirmed that he did not. He stated that there was no recount. He stated that except for the 3 ballot papers that did not tally, there were no other issues and he signed the English River Ballot Account Paper. He stated that he did not receive a copy of the Ballot Account Paper and it was put to him that this was not a legal requirement. It was put to him that as an experienced polling and counting agent that if there were any issues he should have made an entry in the occurrence book which he didn’t and he stated that he would expect the presiding officer to invite him to make an entry in the occurrence book.

Mrs Valabhji adopted the questions of Mrs Aglae and proceeded to question Mr Henri further. It was put to Mr Henri that there is no legal requirement for the electoral officer to provide polling agents with a copy of the Ballot Paper Account. Mr Henri was questioned as to whether the fact he didn’t receive a copy of the Ballot Paper Account, would it have affected the results and he stated it did. There was no re-examination by the Attorney-General.

Mr Georges called the next witness, Mrs Lydia Jumeau. Mrs Jumeau stated that on the 9th December 2015 she was in a shop called Home Accessories located at Providence together with some other persons including two women who she identified as the nieces of Mr James Lesperance at around 10 am. She stated that she knows Mr Lesperance personally and that Mr Lesperance is a fervent Parti Lepep supporter and that she herself is a fervent SNP supporter and executive committee member, but that this does not prevent her from having a good relationship with Mr Lesperance. She stated that whilst she was at the shop with his nieces, she was told about a photograph on Facebook of businessmen exiting State House of whom Mr Lesperance was one of them. She said she then saw

saw Mr Lesperance at around 11 am exiting his truck in the car park of the shop and that she spoke to him about the photograph. After their conversation, she said she saw a man that looks for jobs at Providence who told her something. I followed Tonton inside the shop and we talked. She said she then grabbed something from his pocket and found that he had two ID cards from his shirt pocket. She stated that she had not expected this and he became very pale when she did this. She then stated that she asked him what he was doing with ID cards and said that he stuttered and stammered so she could not understand. She said she was objecting to this because she was of the opinion that he was buying ID cards. She thought this was important because ID cards are used for identification purposes for voting.  Mr Hoareau questioned Ms Jumeau as to whether she personally observed Mr Lesperance buying ID cards and she stated that she did not.

The court will resume at 9 AM  on Tuesday 1st March 2016.