Jumaye v Tirant and Another (06 of 2007) (06 of 2007)  SCCC 5 (29 November 2010);
THE REPUBLIC OF SEYCHELLES
IN THE CONSTITUTIONAL COURT OF SEYCHELLES
(Karunakaran, Ag CJ (Presiding), Renaud & Gaswaga, JJ)
ANACLET TIRANT (CHIEF REGISTRATION OFFICER)
Constitutional Court Case Number: 06 of 2007
Mr. Georges for the Petitioner
Mr. Govinden, the Attorney General, for the Respondents
 Queency Jumaye, hereinafter referred to as the petitioner, is a citizen of Seychelles who resides in the electoral area of Roche Caiman, Mahe. The petitioner has invoked the jurisdiction of this court by lodging a petition against Anaclet Tirant, in his capacity as the Chief Registration Officer (hereinafter the first respondent) appointed by the Electoral Commissioner under section 3 (c) of the Elections Act, Cap 68A of 1996 (the Act). The Attorney General (hereinafter referred to as the second respondent) has been joined in the action in his capacity as the chief legal representative of Government, vide Rule 3 (3) of the Constitutional Court (Application, Contravention, enforcement or Interpretation of the Constitution) Rules, 1994.
 The following prayers are sought by the petitioner:
Declaration that the removal by the first respondent of the petitioner’s name from the voter’s register contravened the Constitution and the right of the petitioner to participate in Government under Article 24(1) (b) thereof;
Order the first respondent to pay the petitioner damages in the sum of SR. 100,000;
Order a writ of mandamus to issue compelling the first respondent to register the petitioner as a voter in the electoral area of her residence;
Order for costs.
 The undisputed facts leading to this action are that the petitioner was at all material times, since the coming into force of the Act, a registered voter and voted in every election until 2006. In the voters’ register (the register) for 2006, the petitioner was registered in the Les Mamelles, Mahe electoral area. As required by law, the revised registers were opened for inspection in January, 2007 in every electoral area of the country. In respect of the Les Mamelles electoral area, the petitioner’s name had been duly entered as a voter on the revised register (See attachment to petition BG1).
 On the 12th of May, 2007 the petitioner attended to vote in the National Assembly elections but was unable to do so because, on the certified register for Les Mamelles electoral area, her name had been removed by the first respondent, apparently for no reason and without her first being notified of the removal. The petitioner was also not registered in any other electoral area of the country. She immediately made a complaint about the removal to the Electoral Officer.
 The petitioner avers that none of the reasons for the possible removal of her name from the register was at all material times present. It is her contention that the removal of her name from the register without reason has contravened the Constitution, specifically the petitioner’s right to vote and to participate in government under Article 24 (1)(b) which renders the first respondent liable to pay her damages estimated as being worth SR. 100,000.
 The learned Attorney General, appearing for the respondents, objected to the petition and submitted that at the time of the lodging of the objection only the office of the Electoral Commissioner, gazetted and designated as the registration centre was open for receiving objections. The said objection was filed by one Emmanuel Jean Justin Fideria, holder of NIN 962-0536-1-1-45 and resident of Les Mamelles electoral area .(See attachment to defence No. 1 dated 30th January, 2007). That on receiving the objection, the Chief Registration Officer wrote a letter to the petitioner, asking her to show cause why her name should not be removed from the register of the said electoral area. It is further contended that since the petitioner never responded to the letter the hearing could not take place.
That the respondent had also made two telephone calls on number 345089 to the residence of one Georges Jumaye of Bassin Bleue to find out the whereabouts of the petitioner but was advised that the telephone was temporarily out of service. Further investigations were made through the immigration department and a report of seventy three persons (73) including the petitioner was generated from the database. That the said report showed the names of those people who were not overseas as un-tagged, but unfortunately for the petitioner her name was not un-tagged. As such the petitioner’s name appeared in the system and was considered as an overseas citizen.
 It is further contended that by ignoring the request of the respondent in itself was a breach of the Act and, being a resident in one electoral area but still insist on registering in another electoral area contravenes the provisions of the Constitution and section 5 of the Act. The learned Attorney General concluded that in those circumstances there was no further communication with the petitioner in view of the urgency to certify the register in time for the already announced National Assembly elections.
 It is imperative to first outline the procedure as provided for by the law from the time a complaint or objection, such as the one herein, is lodged till the time it is dealt with and put to a logical conclusion.
 Article 24(1) (a) and(b), and (2) provide for the right to participate in government and state as follows:
“24 (1) Subject to this Constitution, every citizen of Seychelles who has attained the age of eighteen years has a right –
to take part in the conduct of public affairs either directly or through freely chosen representatives;
to be registered as a voter for the purpose of and to vote by secret ballot at public elections which shall be by universal and equal suffrage.
(2) The exercise of rights under clause (1) may be regulated by a law necessary in a democratic society.”
 The law referred to here is the Elections Act (supra). Section 5 thereof expounds on the qualifications of persons who can be registered as voters and it makes reference to Article 114 of the Constitution. Article 114 (1) provides thus:
“114(1) A person who is a citizen of Seychelles and has attained the age of eighteen years is entitled to be registered as a voter unless the person is disqualified from registration under an Act on the ground of –
infirmity of mind;
residence outside of Seychelles.”
 While section 5 of the Act reads:
“5(1) Every citizen of Seychelles entitled to be registered as a voter under Article 114 of the Constitution shall, if the citizen resides in an electoral area, be registered as a voter in that electoral area unless the citizen–
is disqualified from registering as a voter under this Act or any other written law;
is under any written law, adjudged or otherwise declared to be of unsound mind or detained as a criminal lunatic or at the pleasure of the President;
is serving a sentence of imprisonment of or exceeding six months imposed by a court in Seychelles.
(2) No person shall be registered as a voter in more than one electoral area.”
 Under section 7 the Chief Registration Officer is under duty to prepare a register of voters, for each electoral area and revise it not less than once in each year for the purpose of: removing any obsolete entries; correcting any mistake in respect of the name and other particulars of a registered voter; deleting the name and other particulars of a person not qualified to be entered as a voter etc. The register so prepared or revised shall among other things contain the names of persons who on 1st January of the year for which the register is prepared or revised are entitled to be registered as voters.
 Pursuant to section 8 the Chief Registration Officer opens the revised or prepared register for inspection each year not later than 15th January for fourteen (14) days and invites any person who is or claims to be entitled to have the name of that person entered on the register in an electoral area to inspect.
 Section 8 further spells out the procedure to be followed depending on what transpires during the inspection. In the situation at hand I find the following reproduced provisions relevant:
 Section 8(3)(c)
“8(3) Any person who –
objects to the name of the person or, being a person whose name appears on the register, objects to the name of any other person, appearing on the register of that area,
may submit a claim or objection, within 4 days after the expiration of the period specified in the notice published under subsection (1), to the Registration Officer of that area in such form as may be provided by the Electoral Commissioner.”
 Section 8(4)
“8(4) The Chief Registration Officer shall ensure that there is present at the place where and at the time when the register of voters is inspected under this section, a Registration Officer or an Assistant Registration Officer for the purpose of receiving an application for inspection under subsection (2) or receiving a claim or objection under subsection (3).”
 The Registration Officer under section 8(5) then gives four days written notice to the person who made the claim or objection and to the person affected thereof, and has to hear the persons if they appear in response to the notice and such other evidence as he thinks relevant before allowing or rejecting the claim or objection.
 Section 8(6)
“8(6) The Registration Officer shall notify the decision made under subsection (5) to the person affected by the decision within 3 days of the hearing under that subsection, and where the Registration Officer has rejected the claim or objection, give reasons for the decision.”
 Section 8(7)
“8(7) Any person affected by a decision on a claim or objection made under subsection (3), may within 7 days of being notified of the decision under subsection (6) appeal against the decision to the Chief Registration Officer.”
 Section 8(9)
“8(9) The Registration Officer of each electoral area shall forward to the Chief Registration Officer all claims and objections made under subsection (3) together with the decision made thereon by each such officer.”
 Section 9(1)
“9(1) The Chief Registration Officer shall, after all claims, objections and appeals have been concluded under section 8, amend the register of voters for each electoral area accordingly and certify the registers.”
 The alleged transgression herein is in respect of two of the four parts of Article 24 i.e sub articles (1)(a) and (b), the Right to participate in Government and the Right to be registered as a voter, which are at the core of this petition. The provision shows for instance that if one is not a registered voter he cannot be able to participate in Government through freely chosen representatives.
 It is beyond the ground of dispute that when the revised registers were opened on the 15th January, 2007 for inspection the petitioner’s name was on the register for the Les Mamelles electoral area. In accordance with section 8(3(c) one Emmanuel Fideria, a resident of Les Mamelles electoral area, lodged an objection against her name on the ground that the petitioner does not reside in the Les Mamelles electoral area.
 However, the said objection was made to the Chief Registration Officer and not the Registration Officer. Contrary to Mr Georges’ contention, the learned Attorney General submitted that there was nothing wrong with such procedure given that the Registration Officer is only an agent of the Chief Registration Officer. That the Chief Registration Officer is the principal officer and whatever the assistant can do, he also enjoys all the powers so to do. It was also his submission that, according to the Act, the Chief Registration Officer enjoys similar concurrent powers to handle claims or objections as the Registration Officer. Further, that at the material time the office of the Electoral Commissioner was being used as the registration center for all the electoral areas where the Chief Registration Officer, the person in charge of matters regarding registration was also found.
 With due respect i do not agree with this submission. The law is very clear on this matter. Had the legislature wanted such objections to be initially lodged with and/or entertained by the Chief Registration Officer or any other officer save for or in conjunction with the Registration Officer, the law would have expressly stated so. The law would have also indicated matters in which the Registration Officer was to act as an agent of the Chief Registration Officer. But this was not done probably for a number of reasons. Given the importance of the rights at stake, the legislature wanted the objection to be given a thorough, exhaustive and diligent examination, by different officers at different levels before arriving at a final conclusion, especially where the objection was to be upheld and the concerned person’s name removed from the register.
 It was not therefore by mistake that the right of appeal was specifically provided for under section (8)(7). It is immaterial whether the Chief Registration Officer sits in the same office as the Registration Officer since their roles are not fused but clearly spelt out by legislation. Further, this was not the type of role/duty that could be delegated. The above roles are a creature of statute and could not just be switched nor abdicated in such a manner. That is why according to section 8(4), which is couched in mandatory terms, the Chief Registration Officer is to ensure that there is present at the place where and at the time when the register is being inspected, a Registration Officer or Assistant Registration Officer for purposes of receiving the objection. Non compliance thereof would clearly show not only a failure by the Chief Registration Officer in the performance of his duties but also a breach of the Act, results of which one cannot expect to be visited on the petitioner.
 I shall go further and say that even where the objection or complaint was received by the Chief Registration Officer, the obvious and prudent thing to do was to pass it on to the Registration Officer to handle as mandated. It is hardly necessary to mention that the Chief Registration Officer only deals with claims or objections that have come to him by way of appeal.
 Therefore, by entertaining Emmanuel Fidelia’s objection to the petitioner’s registration in the Les Mamelles electoral area, whether with or without notice to, and in the presence or absence of the petitioner and objector, the Chief Registration Officer was apparently acting without jurisdiction and whatever he did and concluded lacked the force of law since it was void ab initio.
 That is not all. Apart from stating that a letter was written to the petitioner, there is no further indication that indeed the letter was served or received. That telephone calls were unsuccessfully made twice to another person’s house where the officials thought they could find the petitioner. These, I must say were proper steps in the right direction but given the importance of the matter at hand and the timing, more could have been done before or other than deleting the petitioner’s name from the register . Moreover, section 7(2) allows the Chief Registration Officer to access, use and refer to a vast amount of information in the hands and custody of other Government Departments. Indeed, through the immigration database they had generated a report and established that the petitioner had been and was still living in Seychelles. She had not travelled out of the country.
 The learned Attorney General however submitted that the officers had forgotten to un-tag the petitioner’s name to reflect that she was in the country before and during the material time. Since service of notice was crucial, and time within which to correct and certify the register of essence, and bearing in mind the population of this country and the means of communication available, it was therefore open to the Chief Registration Officer to employ other forms of communication like radio, television, newspapers etc to transmit the notice to or summon the petitioner. The other option was to ask Emmanuel Fideria, the objector, since he claimed to be well conversant with the facts regarding the place where the petitioner resides to give a lead to the officials to enable them serve the notice.
 The law places the burden upon the public officer handling the exercise to execute it diligently. Such extra steps were very necessary given the obvious and grave consequences to the petitioner if her name was to be removed from the register yet there was an imminent election. Besides, the Chief Registration Officer had also taken trouble to clearly establish that although the petitioner had registered in a different electoral area she was not registered in any other electoral area in the country save for Les Mamelles. This is the more reason the Chief Registration Officer, in the prevailing circumstances, ought to have summoned utmost diligence while dealing with an objection where the person to be affected by its outcome had not for some reason been heard. In my view, the bottom line should have been to reject the unsubstantiated objection, allow the petitioner’s registration as had been maintained for the past four years and certify the register, and using the enormous powers vested in the office of the Chief Registration Officer, do everything to ensure that the petitioner does not register in any other electoral area in the country nor vote twice later on in the polls.
 On the record, apart from being stated that a letter was sent out, details of the notice and service thereof as required by law were not articulated. Without receiving and therefore responding to the notice the petitioner could not be expected to attend the hearing, hence I find that this was not sufficient notice. All these actions and omissions tantamount to a clear transgression of the petitioner’s constitutional rights complained of herein.
 On the claim for damages, the learned Attorney General submitted that if the court was minded to grant that relief, it should be in form of nominal damages pursuant to the provisions of the Public Officer’s Protection Act because there was no malice on the side of the Chief Registration Officer who is said to have acted in good faith. He urged the court, while quantifying the damages, to consider the fact that even if the petitioner were to be allowed to vote and she voted in favor of the incumbent candidate her vote would not have tipped the scales, it was not a decisive vote. That damages can only be awarded because the petitioner did not cast her vote.
 Asked whether there are any special damages claimed of the Sr 100,000.00 general damages prayed for in the petition Mr Georges replied that there was none whatsoever and submitted that any transgression of any right per se is compensated by damages. That although there was no injury to show the petitioner was prevented from exercising her right to vote. In addition, it was contended that the damages claimed rested in the inability to vote occasioned by the respondent. Mr Georges made reference to the case of Pamela Anne Jupitter Vs Anaclet Tirant Civil Side No. 337 of 2007.
 As it turned out, the petitioner had been disenfranchised. Her name had been removed from the register although she did not fall under the category of people whose names could be deleted pursuant to sections 5 and 6 of the Act. She thereby lost the right to vote in the subsequent election. It follows that since the petitioner was not a registered voter yet this was an election year, she could not participate in government for some time till the next election, for instance by way of freely choosing or electing representatives. It matters not whether her candidate wins or not, or, whether hers was to be the decisive vote or not. What counts is for the petitioner to enjoy her rights as provided for by the Constitution without any unwarranted limitations and participate in the conduct of public affairs as she wishes.
 For us to understand this subject better, especially with regard to the extent of the petitioner’s claim and inconvenience, I should perhaps first underscore the value and importance of voting in a national election such as the one that was missed by the petitioner in that year yet it was basically the whole purpose of having to register. It is said that elections ensure or guarantee democratic representation and also lead to effective governance (administration). Elections are the highest expression of the general will and they symbolize the right of the people to be governed only with their consent. Thus, it is a popular means of delivering services and goods to the electorate and when the incumbent fails to do so, a replacement is freely chosen in another election. Elections lead to accountability of the leaders (government) to the electorate. Elections also bring freedoms (e.g freedom to vote periodically) which is an integral part of development and good governance in a democratic society.
 Pertinent provisions found in International Instruments are reflected in our Constitution and statutes. For example, Articles 21 and 25 of the Universal Declaration of Human Rights (UDHR) 1948 and of the United Nations Convenant on Civil and Political Rights (ICCPR) 1966, respectively, which recognize the rights of all citizens to take part in the government of their country directly or through freely chosen representatives.
 As can be seen from above, the petitioner was denied a chance to participate in the election of leaders who would represent her in the national decision making processes on how the country should be governed and its resources allocated.
The right to vote is the key that opens up the door to the other rights. The petitioner could not speak through the ballot yet each and every single vote counts. The right of voting at an election is a thing of the highest importance, and so great a privilege, that it is a great injury to deprive the petitioner of it. Therein lies the damage. The right to vote is also cherished to the extent that in some countries like Belgium (since 1892) and Australia (since 1924) it is generally an offence for one not to vote.
 All sorts of reasonable allowances have been made to make this right a reality by allowing citizens to vote even where a dispute as to their prerequisites existed. For instance in the case of Tehn-Addy Vs Electoral Commission of Ghana (1996-7) SC GLR 589, the Supreme Court of Ghana ordered the electoral commission to re-open the electoral register to allow the petitioner (plaintiff) who had been denied to register to vote by the commission. Again in Philip Kwaku Apaloo Vs Electoral Commission of Ghana, Writ No. 5 of 2000 the court ordered the electoral commission to allow the petitioner (plaintiff) who had no Identification Card (ID) to vote. This goes a long way to show that the right to vote is very important and should not easily or lightly be taken away without exercising due care and following legal procedures.
 The facts in the case of Pamela Jupiter (supra) were somewhat similar to those in the case at hand. The objector was registered in a different electoral area from that of the petitioner/ plaintiff; the objection was made to the Chief Registration Officer instead of the Registration Officer of the Les Mamelles electoral area; no notice was given before the plaintiff’s name being removed from the register; and as such the plaintiff was neither heard nor given a chance to enjoy her right to appeal against the decision to remove her name from the Les Mamelles electoral area. The Supreme Court of Seychelles held (per Renaud, J) that “taken as a whole, I find that the decision of the defendant was not proper both in law and fair electoral practice and the standard of care expected of the office of the defendant was somewhat not properly safeguarded and applied in the circumstances.” The court awarded Sr 10,000.00 as moral damages. I entirely endorse this holding.
 In the case of Ashby Vs White (1703) 92 ER 126, where the right to vote was extensively discussed, Lord Holt CJ, held that:
“if the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and, indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal…My brother Powell indeed thinks, that an action upon the case is not maintainable, because there is no hurt or damage to the plaintiff; but surely every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindred of his right…. As a man shall have an action against another for riding over his ground, though it do him no damage; for it is an invasion of his property, and the other has no right to come there.”
 This was a dissenting judgment in the Court of King’s Bench which was upheld by the House of Lords.
 As conceded by Mr Georges, the petitioner did not suffer any pecuniary damage but suffered some inconvenience of walking for about thirty minutes under the sun to the polling station and lining up for about an hour before being advised of her disenfranchisement and turned away. In his submission the learned Attorney General stated that there could have been some mistake on the side of the first respondent but that this was done without any malicious thought. It was lightly mentioned during the hearing of this petition that the name of the petitioner had been restored on the register. The case is therefore about the transgression that was caused at the material time.
 (i) Considering the above reasons, I find the petition to be meritorious and it is accordingly granted.
(ii) The writ of mandamus sought is hereby issued to the extent that the petitioner’s name should be immediately reinstated on the electoral register of her District of residence by the Chief Registration Officer.
(iii) Given all the circumstances of this case I feel a sum of Sr. 10,000.00 (Ten thousand Rupees only) will be awarded as damages.
(iv)The petitioner is also awarded costs of the case.
 Before I take leave of this case, I wish to observe that the Chief Registration Officer should always take extra care before deciding to remove a voters name from the register. Due regard must be given to the law and relevant procedures outlined therein to avoid similar occurrences in future, especially now that another exercise of inspection of the register and national election are imminent. In the same vein, I shall borrow the words of Lord Holt CJ (supra), when he sounded a warning that “To allow this action will make public officers more careful to observe the Constitution (law) …… in all elections…”. Therefore, I find myself in good company to emphasize that an electoral process which fails to ensure fundamental rights of citizens (the right to register and to vote inclusive) before, during and after elections is flawed. Yet, without getting elections right we cannot have good governance. The citizens have surrendered all these rights and entrusted the same with the Electoral Commissioner with the hope to see, enjoy and receive back a credible, transparent, free and fair election, devoid of disenfranchisement. Although it is said that no electoral process is 100% perfect, the Electoral Commissioner must endeavor to do everything possible to eliminate obvious and simple mistakes and organize credible elections to win the total confidence and trust of the electorate.
Signed, dated and delivered at Victoria this 30th day of November, 2010 by:
Hon Justice KARUNAKARAN, ACJ (Presiding)
Dated this 30th day of November, 2010
Hon Justice RENAUD, J
Dated this 30th November, 2010.