Adrienne & Anor v Attorney General (CP14/2019) SCCC 1 (14 January 2020);
- The Petitioners are prisoners who were convicted for the offences of trafficking and conspiracy to traffic in a controlled drug, namely 47.435 kg of cannabis herbal material under The Misuse of Drugs Act [MODA]. They were sentenced on the 27th July 2015 to 2 life sentences which are to run concurrently with effect from their arrest on the 9th April, 2014. The Petitioners appealed their conviction and sentence to the Seychelles Court of Appeal which appeal was dismissed on the 11th August 2017 and the sentences were maintained. On the 28th of August 2017 they applied to the Tribunal set up under MODA 2016 for a review of the sentences. On 12th December 2018 the Tribunal found that a sentence of life imprisonment is above the range of sentences under the MODA 2016 and ordered that the outstanding portion of their sentences be reviewed and reduced to 20 years imprisonment.
- The Petitioners now claim that the sentencing regime of Cap 133, The Misuse of Drugs Act, that permits the imposition of sentences of 20 years imprisonment for a class B drug contraventions their right under Article 16 of the Constitution as it is cruel and degrading treatment and punishment especially when they have heard that other inmates who have been charged, convicted and sentenced for more serious class A drug offences such as importation of class A drugs have received more lenient and humane sentences.
- The Petitioners further claim that the disparity in sentences meted out to them when compared to that of other prisoners with more serious drug offences also contravene their right to equal treatment under Article 27 of the Constitution.
- The Petitioners further aver that the mandatory sentencing regime under The Misuse of Drugs Act 2016 for a class B drug violates their right under Article 16 of the constitution as it takes away from the court the Petitioners’ right to have their sentences determined by the court based on the principle of proportionality pursuant to their right to a fair trial by an impartial and independent court under article 17(1) which right includes a fair sentence set by the sentencing judge after considering the offender and the gravity of the offence and not one set by the legislature.
- The Petitioners aver further that although the Constitution guarantees them a right to just and proportionate sentences under the right to a fair trial pursuant to Article 19 (1) of the constitution, the 20 year imprisonment imposed will continue to be a cruel and degrading treatment and punishment unless the court applies the reasoning in Ponoo v/s the Attorney General  SLR 361.
- The 1st Petitioner aver that he has 4 minor children Jade Adrienne 12 years old, Ismael Adrienne 10 years old, Jaliah Adrienne 4 years old and Nadenne Adrienne 8 years old and the 2nd Petitioner has 2 minor children; Ibrahim Servina 16 years old and Grace Servina 8 years old. Under Article 31(d) of the Constitution the State herein represented by the Respondent undertakes to ensure the right of these minor children not to be separated from their parents save in judicially recognized circumstances but the Petitioners aver that separation from their fathers for a prolong period of 20 years is cruel, psychological torture, inhuman and degrading treatment that amounts to punishment of these six minor children and make them “ hidden victim” of the criminal justice system with no available support from anyone.
- The Petitioners further claim that based on the report of the superintendent of prisons they are model prisoners and they have been completely rehabilitated and if released they are prepared to contribute in a meaningful way to the community and to abide by any conditions that the court might deem fit to impose on them for their sake and that of the six minor children. The Petitioners aver that by the year 2035 the youngest of the 6 children will be 24 years old and they will all be grown up without the support of their fathers who have been completely rehabilitated, and they will have lost a whole generation of their lives.
- The Petitioners aver that they are persons whose rights under Article 16, 27 and 31 (1) (d) have been contravened and they bring this petitioner pursuant to Article 46(1) of the Constitution praying for the court to:
- Interpret the chapter of the constitution in such way as not to be inconsistent with any international obligations relating to Human right and freedoms, partially the United Nations Covenant on Civil and Political Rights and The International Convention against Torture and other inhuman, Degrading Treatments and Punishment which Seychelles acceded to in 1992.
- Apply the principle in the case of Ponoo v/s Attorney General especially as the sentences violate their rights under Article 16, 27 and 31 (d).
- Declare that the mandatory sentencing regime under MODA 2016 contravenes the Constitution in regards to them as it takes away the court’s absolute discretion when sentencing an offender and as it violates their right to a fair trial by an independent and impartial court under Article 19(1) which right includes a fair and just sentence imposed by the court and not one determined by the legislature.
- Declare that the rights of the Petitioners under Article 16, 27 and 31 (d) to have been contravened, and provide appropriate remedies.
- Make such declaration or order, issue such writ and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of the Charter and disposing of all the issues relating to the application.
- To interpret section 51(9) (d) of MODA 2016 so as to clarify the meaning of to “vary the sentence by reducing by any amount, the time remaining to be served in prison.”
- For leave to file the Petition out of time.
- The Respondent on the 10th September, 2019 submitted that the Respondent does not object to the prayer for leave to file the Petition out of time. The court therefore granted the prayer to file the petition out of time agreeably with the provisions of Rule 4(3) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules.
- The Respondent however raised the following preliminary objections to the petition under Rule 9 of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules:
- That there is a no cause of action for the Petitioners and none of their Constitutional rights were breached as alleged in the petition.
- That there is no actual violation or likely contravention of any of the Constitutional rights of the Petitioners as alleged in the petitioner.
- That all the issues raised by the petitioners are already settled by this Court and the Court of Appeal and therefore the present petition is frivolous and mere abuse of process of law.
- That the petitioners have got alternate remedy available before the Court of Appeal and it is also empowered to consider any allegations of constitutional breach (under Article 130(6) of the constitution) as averred in this petition.
- The Respondent prayed this Court to dismiss this Constitutional petition with compensatory costs.
- Both counsel made extensive submissions in respect of the preliminary objections. In fact it can safely be said that both learned counsel got over-enthusiastic and included in their respective submission issues best left to be determined by the court should the case be heard on the merits. Rule 9 of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules states:
“9. The respondent may before filing a defence to the petition raise any preliminary objection to the petition and the Constitutional Court shall hear the parties before making an order on the objection.”
Whilst this provision allows a Respondent in a constitutional case to raise preliminary objections, it does not give any definition or guidance on what could constitute preliminary objections which are distinct from the merits of a case.
- In a publication dated 13 October 2016 by Oxford Scholarly Authorities on International Law [OSAIL] the following was stated in respect of preliminary objection:
“A preliminary objection is a formal step by which a respondent raises a question which it contends should be dealt with separately, before any other issue in the proceedings is examined. This is usually, perhaps indeed necessarily, on the basis that that question is preliminary in nature; and that as a result, its resolution (in the sense contended for by the party raising it) will make examination of the rest of the case unnecessary and inappropriate. These objections are a procedural means of challenging the existence of the Court’s jurisdiction in a particular case. Jurisdictional issues are however not the only matters which may be the subject of such objections: two other categories are generally recognized: objections to admissibility, and a catch-all category of ‘objections of a preliminary character”.
- In the case of Mukisa Biscuit Company vs Westend Distributors Limited (1969) EA 696 at page 701 the court stated the following in regard to preliminary objection:
‘”A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and on occasion confuse the issues. This improper practice should stop”.
- Learned counsel for the Petitioners also questioned the very essence and use of the preliminary objections in her submission stating that “preliminary objections are used to challenge the sufficiency of a pleading on its face and not to challenge the substance or merit of a case prior to the hearing.” In addition to the fact that preliminary objections can be raised for issues of locus standi, jurisdiction, defects in the pleadings, failure to comply with set rules or legal provisions, and similar preliminary issues not determinant by relying on the merits of the case, we are persuaded that courts should be extremely reluctant to dismiss a claim which has even a small chance of success at preliminary stage.
- We now look at the four points raised by the Respondent as preliminary objections. Grounds 1 and 2 are taken together and points 3 and 4 are taken together as they refer to the same issues.
1. That there is a no cause of action for the Petitioners and none of their Constitutional rights were breached as alleged in the petition.
2. That there is no actual violation or likely contravention of any of the Constitutional rights of the Petitioners as alleged in the petition.
17. The Respondent submitted that the conviction and sentence imposed on the Petitioners were lawful and did not contravene any law, particularly MODA or the constitution. As such, they cannot claim that their sentences amount to cruel, inhumane and degrading treatment, noting that their life sentences have been reduced to 20 years of which they have 15 years remaining to serve. Learned counsel for the Petitioner maintains that whether the Petitioners’ rights have been violated or whether their interest in the case is perverse is a matter that the court can only determine after hearing the case on the merits and have been appraised of the facts and evidence upon which to make such findings.
18. We find that the Respondent is relying on the fact that the Petitioners have been tried by a court properly constituted and mandated to try the Petitioners. Their sentences were mandated by law. They have also made an unsuccessful appeal to the Court of Appeal but that they were partly successful before the Review Tribunal which reduced their sentences from life to 20 years. In fact it appears that the Petitioners have exhausted all legal process available to them. On the pleadings, we are in agreement with the Respondent. However we are of the view that having been tried, convicted and sentenced within properly established legal confines do not entirely exclude every possibility of constitutional violation. In other words it cannot be said that proper trial, conviction and sentence and constitutional violation are mutually exclusive. Hence we are of the opinion that the court can only make a final determination on such matters after a proper hearing.
3. That all the issues raised by the petitioners are already settled by this Court and the Court of Appeal and therefore the present petition is frivolous and mere abuse of process of law.
4. That the petitioners have got alternate remedy available before the Court of Appeal and it is also empowered to consider any allegations of constitutional breach (under Article 130(6) of the constitution) as averred in this petition.
19. As stated above, it is not disputed that the Petitioners have virtually exhausted their legal avenues by way of appeal and review. The argument of the Respondent is that the Petitioners must first exhaust all other alternative remedy and that the Court of Appeal could have heard their complaint in respect to the possible violation of their rights rather than filing new proceedings before the Constitutional Court. (Articles 46(4) and 130(6) of the constitution respectively as well as section 51(10) of MODA).
20. In the case of Collin Forte & Gina Forte v Attorney General CP04/2019 similar arguments were raised and upheld by the Constitutional Court. However, in that case the Petitioners had not yet had their appeal heard and had yet to seize the Review Tribunal. In this case the Petitioners have moved way past those stages. Articles 46(4) and 130(6) state:
“46(4) Where the Constitutional Court on an application under clause (1) is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned in any other court under any other law, the Court may hear the application or transfer the application to the appropriate court for grant of redress in accordance with law”.
‘130(6) Where in the course of any proceedings in any court, other than the Court of Appeal or the Supreme Court sitting as the Constitutional Court, or tribunal, a question arises with regard to whether there has been or is likely to be a contravention of this Constitution, other than Chapter III, the court or tribunal shall, if it is satisfied that the question is not frivolous or vexatious or has not already been the subject of a decision of the Constitutional Court or the Court of Appeal, immediately adjourn the proceedings and refer the question for determination by the Constitutional Court”.
We are of the opinion that these provisions do not disqualify a Petitioner from making a separate application to the Constitutional Court after exhausting all other avenues. We further find that for this Court to determine with certainty that there are other avenues which have not been availed to by the Petitioners, the Court would require a hearing on the merits.
- In conclusion, from all the above findings we find that the Petitioners do have a prima facie case which should be heard on the merits by this Court. The objections are therefore dismissed and the Respondent shall make his defence accordingly.
Signed, dated and delivered at Ile du Port on …
____________ _______________ __________________
R Govinden J (Presiding) C G Dodin J. S Andre J.