Ramkalawan v Electoral Commission & Ors (SCA CP 01/2016) [2016] SCCA 17 (12 August 2016);

Flynote: 

 

JUDGMENT

 

S. Domah (J.A)

  1. On 3, 4 and 5 December 2015, Seychelles held its first round in its latest quinquennial election for the choice of its ensuing President. As per the Constitution, if any from the number of the candidates secured more than 50% of the votes, he is declared elected, failing which the process goes through a second ballot between the best two. As it happened at the end of the 3-day process, no candidate reached that ceiling. The country was then set for a second round on 16, 17 and 18 December 2015. It was the first time it had happened in the history of Seychelles. The two contestants were Respondent No. 2, Mr James Alix Michel, the President in post; and the Appellant, Mr Wavel John Charles Ramkalawon, the Opposition Leader. It was a notoriously close contest and the whole country waited with bated breaths for the announcement of the results which came out late in the night of 18 December. The Appellant, the Opposition leader had missed it by a narrow margin of 193 votes.  

 

  1. Unhappy with the outcome, Appellant filed a petition against the Electoral Commission, the elected President and the Attorney-General before the Constitutional Court.  In his view, rightly or wrongly, he would have carried the day but for the electoral malpractices.   

 

  1. He averred eleven (11) acts of illegal practice. The Respondents denied all the allegations and Respondent no. 2 went an extra mile. He averred in his defence that it was the appellant, then petitioner, who has been guilty of illegal practice within the meaning of section 51(3)(b) of the Election Act. At the end of a long hearing spanning over a couple of weeks and comprising a host of witnesses, a heap of documents and over 1,500 pages of transcript,  the Court comprising Chief Justice M. Twomey, C. McKee J. and D. Akiiki-Kiiza J.  delivered a judgment of 131 pages.

 

  1. They  found:
    1.  the acts of illegal practice not proved against the elected President;
    2. a number of others mentioned in the case needed to be summoned and were summoned to answer allegations of illegal practice;
    3. the allegation made by Respondent No. 2 proved against the Appellant on the facts and his own statement.  

 

  1. Section 47(1) of the Elections Act provides that, at the conclusion of the trial of an election petition, the Constitutional Court shall report in writing to the Electoral Commissioner its finding under section 51(3)(b), the end result of which is that he is disqualified from voting for a period of 5 years. The Court stayed the order of reporting the Appellant on his application pending the determination of the appellate Court.

 

  1. This Appeal against the decision of the Constitutional Court canvasses the following grounds:

 

GROUND 1

The Constitutional Court erred in finding that the Appellant had committed an illegal practice contrary to section 51(3)(b) of the Elections Act without:

  1. Any party to the petition having prayed for any relief in respect of the alleged illegal practice;
  2. Warning the Petitioner that he risked being penalised for having committed an illegal practice and giving him an opportunity of being heard thereon otherwise than to counter a mere allegation raised;
  3. Considering the evidence supporting the alleged illegal practice in detail and assessing that evidence in the light of the requirements of section 51(3) (b).

 

GROUND 2

The Constitutional Court erred in finding that the Appellant had committed an illegal practice contrary to section 51(3)(b) of the Elections Act in that it failed to appreciate that the Newsletter had not contained any stipulation as to vote, had not made any definite promise to any voter, had not been specific as to a voter, and had not offered to procure any office in exchange for a vote.

 

GROUND 3

 

The Constitutional Court erred in deciding to report that the Appellant had committed an illegal practice without first:

(a) Considering, and giving the Appellant an opportunity of explaining, whether the act or omission constituting the alleged illegal practice had been done or made in good faith or through inadvertence or other reasonable cause, or

(b) Considering whether, taking into account all the relevant circumstances, and after having heard the Appellant in that regards, it would be just that the alleged illegal practice should be an exception under the Elections Act and that the Appellant should not be subject to the consequences arising from the commission of the alleged illegal practice.

  1. In this appeal, we are concerned only with the above grounds. The case has other ramifications with which we are not at present concerned. Miscellaneous Proceedings are on-going.

 

Evidence and Proceedings

 

  1. The finding of illegal practice against the appellant was based on a leaflet and Appellant’s response to the questions on its content. It has not been challenged that the leaflet emanated from him. Drawn up by him in the English language, it was translated in Tamil language and circulated to the Tamil community. Dated 9th of December 2015, its proximity of the date to the second round carries some significance. In that open letter issued to the Tamil community, he had spoken about his identical origin and his close ties with the community before making certain promises: inter alia, making Deepavali a national holiday and appointing “those who are eligible from Tamil and Indian origins (in) suitably placed positions in (his) cabinet” and the public service. 
  2. Evidence had been adduced by Mr. Rajasundaram, himself a Tamil and  knowledgeable with the Tamil language and the Tamil Community. His reading of the letter was at first that it was like a manifesto. However, under cross examination by the Attorney General who read section 51 (3)(b) of the Act to him, Mr. Rajasundaram agreed that there was an apparent breach of the section in the inducement offered to the Tamil Community to vote for him and in return for favours.  We have to straightaway state that a witness’s opinion as to whether an activity falls foul of the law is neither here nor there. This was a matter of law for the trial Court at the time and for this Court on the present appeal.   

 

  1. Mr. Georges – evidently focusing on his defence that section 51(3)(b) referred to “a voter” and not a community of electors as such - questioned the witness on the Tamil community. The witness answered that the targeted readership was not a particular voter but a particular community. Further, he agreed that this was not a case where any specific person had been promised a post as a Minister in Cabinet or Principal Secretary in the public service. The letter was not personalized. It was agreed that there was no signature on the letter. Mr. Rajasundaram stated that he himself had received the letter between the first and second round of elections despite the letter being dated 9thDecember 2015.

 

Mr Ramkalawan’s Answers

 

  1. The Appellant admitted to having drafted the letter in English for the purpose of its translation and circulation to the Tamil community. It contained statements such as: Those who are eligible from Tamil and Indian origins will be suitably placed positions in my cabinet, Principal Secretaries…. The above are not just words or just decorations, I request all of you to support me and other parties to join me and I humbly request you to do so.  You should also be instrumental for this country to have a good room flourishing like a flower.  Support Ramkalawan and make him victorious.” These were amongst other benefits to the Tamil community if they were to support him and the parties representing him in the election. 
  2. Mr. Ramkalawan’s answer to the content of the leaflet has been that it was simply politicking and that all elections are about promises.  His position may be gauged by the following answers he gave: “Well I was not offering anything in particular to the Tamil or people of Indian origin, what I was basically saying is if there are people of Tamil and Indian origin who are eligible and who are suitable qualified they could very well just like anybody else be part of government.”  He added: “it was also very important for me to write to the Tamil community because there had been this notion that Ramkalawan and the SNP were xenophobes and that they hated foreigners, and given that the Tamil community is a big community that votes I thought it was my duty as a Politician campaigning to also seek their vote.” When asked whether this letter was intended to induce voters to vote for him, his answer was: “My Lords, election is about promises, so if I make a promise to the Tamil community is it not the same as making a promise to the elderly?  Is it not the same as making a promise to young people?  Is it not the same as making other promises?  This is what elections are all about.  And when politicians stand up and say I promise that I will do this that and the other, I do not see the difference between that and what is in the letter.

 

  1. That made Mr. Hoareau appearing for Respondent No. 2 probe Mr. Ramkalawan further:

“Q:       So you agree with me that you were inducing these people to vote for you on the promise of offering ministerial posts and principal secretarial post in your government to members of their community?

A:         So what?  I mean this is my answer my Lords. “

Our task in this appeal is to see whether he is correct in holding that view and giving that answer.

THE LAW

  1. Before we move to the heart of the matter, it behoves us to clear some air with respect to the law itself. This is the first time a petition of such magnitude has been brought under the Election Act 1996.

 

 

 

Nature of the Proceedings Before the Constitutional Court

 

  1. The questioned  areas touch some basic principles applicable. They related to the nature of the proceedings, the onus and the standard of proof, the categorization of the various sections, whether under the criminal law or the civil law etc. Some of the words used in the text of the law throw some doubts as to whether the hearing was a civil action or a criminal action or somewhere in between. Some phrases in the Elections Act are connotative of criminal action rather than civil action. For example, section 47(1)(b) uses the word: “guilty of an illegal practice” and other sections use the word “trial.” The terms used in civil actions are “an illegal practice stands proved” or “hearing” instead of “trial.” Not only practitioners want to be certain about it but also the citizens who are the users. The problem this duality creates becomes evident at the time of the applicability or otherwise of: (a) the right of silence; (b) the right against self-incrimination; (c) the quantum of proof which is proof beyond reasonable doubt in a criminal trial and proof on a balance of probabilities in a civil action.

 

  1. The Constitutional Court heard the case as a civil case all through and applied  the civil standard of proof. Section 45(1) makes it abundantly clear that the trial of an election petition shall be held in the same manner as a trial before the Supreme Court in its original civil jurisdiction.

 

  1. These issues have vexed not only Seychelles. They have necessitated the  authoritative pronouncement of the courts in other jurisdictions equally: Australia, Canada, India, United Kingdom, United States, Mauritius etc. Be that as it may, the law has to be certain especially one that touches each and every individual for the exercise of his or her right to vote. Candidates, voters, public authorities, practitioners need to know the scope and the limits of the various provisions and how they relate to one another in terms of application and interpretations.

 

  1. Our analysis, however, shows that the confusion does not lie in the text of the Elections Act but in our own minds. The Act creates two possible actions in actual fact: one is the civil action by way of petition and the other is a criminal action by way of a formal charge. There is no mystery in how a civil action may cohabit with a criminal action and how they relate to each other in a legislation – whether one after the other or independently of each other or in parallel. In the Canadian system, the Federal Court of Canada was called upon to clarify the position in a case as recent as 2013. In McEwing v. Canada (Attorney General) 2013 FC 525 (CanLII), the Court examined the Canadian Election Act 2000 and stated as follows:

“Prior to the enactment of the 2000 Act, procedures to overturn election results were governed by … the Dominion Controverted Elections Act, a 19th century Statute. …. (The) legislative regime … were considered to be cumbersome, costly and time-consuming and were for those reasons, rarely employed. The two jurisdictions, civil and criminal, were therefore treated separately  in the 2000 Act.”

 

Co-existence of civil and criminal actions

 

  1. A careful reading of the Seychelles Elections Act 1996 shows a comparable history and outcome. In the Canadian system, the criminal régime in section 19 is more easily demarcated from the civil régime in section 20 of the Elections Act 2000. In our Elections Act, the civil is found in sections 44-45 and the criminal in sections 51-53. However, the same acts and doings generate both a criminal and a civil action. Where the acts and doings are proved on a balance of probabilities, they lead to non-criminal sanctions such as rights suspension, de-registration etc. In Seychelles, it is removal of name from the Electoral Register for a period of 5 years, which in effect in a quinquennial legislature is for one or two elections only. The same acts and doings, if proved beyond reasonable doubt, in criminal proceedings will lead to criminal sanctions: 3 years imprisonment and SR20,000 fine. In certain cases, the maximum penalty is SR1,000,000. This explains the rationale for not creating a new and third quantum of proof in this area.

 

The mental element in civil and criminal electoral actions

 

  1. This takes us to the issue of mental element applicable in the two actions. This issue becomes relevant to us in relation to the application of section 45. The state of mind in a civil action is in abstracto: the standard of a reasonable man (English law) or “la conduite d’un bon père de famille” (French Law). Criminal liability is assessed in concreto: whether this particular defendant had the mens rea required for the offence charged. Thus, while the standard in the mental element of fraud in criminal election action would be subjective, in a civil election action that would be objective, mitigated to a mere level of recklessness or carelessness, even if in either case “the intention is doing that thing which the Statute intended to forbid.” See  Norfolk, Northern Division, Case [1869)] 1 O’M & H 236]; Wrzesnewskyj v Canada (Attorney-General) 2012 ONSC 2873 (CANLII).

 

  1. In Bielli v Canada (Attorney-General 2012 FC 916 (CANLII), the mental element in a criminal case is compared to that in a civil case where “it is not a determination based on the subjective or individual perception or experience, but what is reasonable to conclude regarding what a person ought to have known in the circumstances.”  It is a question of fact whether the person knew or should have known: McEwing v. Canada (supra).

 

  1. Further, in the case of Andrew Erlam & Ors v Lutfar Raman and Anor [2015] EWHC 1215 (Comm), at para. 56, the High Court decided that “knowledge of what they (the respondents) are doing does not need to be proved against a candidate for him to be fixed with their actions.” That admittedly is a hard fact but objective liability is part and parcel of civil law which is concerned with a community rights and obligations: see Great Yarmouth Borough Case, White v Fell (1906) 5 O’M & H 176. The reason thereof may lie in the fact that it is rare that members of the public engage in DIY corrupt practice in election time. Their activity invariably revolves round the candidate they support. It is always open to the candidate to come up and rebut his involvement in the conduct of the undesirable elements in his entourage.    

 

  1. We are concerned in the present case with a civil application of the law of illegal practice but not the criminal application of the law of illegal practice.

 

  1. In the case of Pellerin v Thérien [1997] RJQ 816 CA, the appellant challenged the constitutionality of section 465 on the ground that the sanction was suspension of his political right to vote, which was as good as a penal sanction. Yet the quantum of proof the law provided for was on a balance of probabilities. The Court of Appeal dismissed the argument holding that the two aspects of control over elections are distinct and require different substantive principles and rules of evidence. In the case of FH v MacDougall 2008 SCC 53 (CANLII), at para. 40, the Court stated that: “Absent a statutory direction to the contrary, the burden of proof never shifts to the respondent party and the quantum of remains that of the balance of probabilities.” The same view has been taken in the case of Andrew Erlam & Ors v Lutfar Raman and Anor [supra] which puts it curtly: “In general terms, an election court is a civil court not a criminal court.”

 

  1. It would be otherwise where the case was conducted on the basis of a criminal charge for election offences of corrupt or illegal practice at which time the criminal standard of proof will apply. This was definitely decided by the Court of Appeal in England, which we make our own, in the case of  R v Rowe ex parte Mainwaring [1992] 1WLR 1059.   The civil standard of proof which is balance of probabilities for the hearing of an election petition has been confirmed in the case of A.K. Jugnauth v Ringadoo [2007 SCJ 80] [supra] by the Judicial Committee of the Privy Council in Ringadoo v Jugnauth [2008 UKPC 50] insofar as it concerns the trial of an election petition as opposed to the trial of a defendant who stands charged criminally with election offences.

 

Adversarial Action with Inquisitorial dimension

 

  1. Accordingly, there should be no confusion in our minds about the nature of the action, the onus of proof and the standard of proof. We are in the area of civil proceedings, if with a statutorily added inquisitorial dimension. But not for its inquisitorial character do the nature of the action and proceedings and the onus and the quantum of proof change. Where the action starts by a citizen against another citizen by way of petition, the action is a civil action and will be governed by all the rules of the civil procedure. Where the action starts by the State against a citizen based on the offence, the action is a criminal action and will be governed by all the rules obtaining under the criminal procedure. As for the word “guilty” used in penal proceedings, it is not a monopoly of criminal law. It is of usage in civil law equally, more often seen in disciplinary proceedings: (see West’s Encyclopedia of American Law, 2nd ed. 2008.)

 

ELECTION AND DEMOCRACY

 

  1. At the same time, the high seriousness of this civil process should be in the forefront in the mind of everyone involved. An election for the choice of our legislature or the Head of State goes to the very root of our democratic system of government. In Indira Nehru Gandhi v. Raj Narain [1976] (2) SCR 347 (AIR 1975 SC 2299), the Court held:

 “Democracy is a basic feature of the Constitution. Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the Constitution. So is the need to protect and sustain the purity of the electoral process.”

THE CONSTITUTIONAL COURT SITTING AS AN ELECTION COURT

  1. Our laws have entrusted the task of protecting and sustaining the purity of the electoral process upon the Judiciary through a Constitutional Court sitting as the Election Court with at least two judges. The paramount role of this Court in the context of Seychelles calls for profound reflection on the high responsibility reposed upon it.  

 

  1. In to-day’s political world, evidence abounds that the strength of a democracy is only as good as the credibility of its elections. Elections make or break democracies. They make them where they are free, fair and credible. They break them where they are just a façade. In the IDCR: Briefing Paper Electoral Corruption. Sarah Birch, this is what has been stated:

 

“In the modern world, electoral corruption is one of the major obstacles to democratisation; it is also a significant problem in many established democracies.”

           

  1. We are going through a period of time in world history where even the established democracies seem not safe enough in the many ways elections may be rigged. Mischief makers have adopted new ways of corrupting the electoral process. In a recent election in Canada, a misleading message was sent over the internet in the name of the authorities to the voters of a particular area with a known allegiance to one of the parties. The message directed them to a place where it was not possible for them to vote. Electoral corrupt practice has taken other subtle and sophisticated forms as is evident in the case of Andrew Erlam & Ors v Lutfar Raman and Anor [supra] better known as the Tower Hamlets case. This has emphasized the role of the election courts to exercise greater vigilance over the manner in which democracies are being corrupted.

 

Election Court is a Unique Court

 

  1. It is sometimes not so obvious that an Election Court has special characteristics. As was stated in the Tower Hamlets case:  

“An election court is, in some ways, a unique tribunal. Election petitions are presented and pursued in very similar manner to claims made in the civil courts and, procedurally, the basic rules to be applied are those of the Civil Procedure Rules (“CPR”). Accordingly, election proceedings have an adversarial character. Nevertheless, election petitions differ in a number of ways from civil actions.”  

 

  1. One of the special characteristics is that it is vested with at once an adversarial character as well as an inquisitorial character: see para. 40 of  Andrew Erlam & Ors v Lutfar Raman and Anor [supra]. A like competence is vested with the Constitutional Court sitting as an Election Court. The Elections Act vests it with powers under section 45(2) whereby the court may not stay content with only the dispute between the parties but need to go further. It may order proprio motu and compel any person concerned with the election to attend as a witness to depose. The trial is not only the trial of the persons directly before court but it is one of the election itself. That is apparent by the wording of section 45(2).

 

 

Section 45 (2): Election Court’s Inquisitorial Role

 

  1. Section 45 (2) reads:

           

            “45(2) The Constitutional Court may— 

(a)        by an order, compel any person who appears to the Court to be concerned in the election to attend as a witness at the trial; and

(b)        examine a witness referred to in paragraph (a) or any person in Court, although the person has not been called as a witness.

(3) A witness or a person referred to in (3) subsection (2) may be examined or cross examined, as the case may be, by the petitioner, respondent and Attorney-General or his representative, if present at the trial.”

 

  1. All this simply highlights the role the Judiciary plays and should play in ensuring that the integrity of the electoral process is not corroded in any way whatsoever. Its primordial responsibility is to jealously guard the legacy of a democratic system of government and ensuring its continuous consolidation under the rule of law.

 

Mindfulness of nation’s fragility

   

  1. The Judiciary, however, has its institutional limits. It may only enter the scene ex post facto, for diagnosis and cure. By that time, it may well be too late. Our fragile democracies would be better served if everyone played by the rules. On and off, it would help each citizen to refer to our Constitution along with our prayer books. It is a place where we have reposed our own fate as an individual and as a nation. We have to be:  

EVER MINDFUL of the uniqueness and fragility of Seychelles;

CONSCIOUS of our colonial history before becoming an Independent Republic;

AWARE and PROUD that as descendants of different races we have learnt to live together as one Nation under God and can serve as an example for a harmonious multi-racial society ....

It shall be the duty of every citizen of Seychelles-

(a) to uphold and defend this Constitution and the law; ... and

                   (f) generally, to strive towards the fulfillment of the aspirations contained in the Preamble of this Constitution.”

  1. With the above essential preliminaries, we come to the Grounds of Appeal.

 

GROUND 1

  1. Ground 1, challenges the decision of the Constitutional Court in its finding that the Appellant had committed an illegal practice contrary to section 51(3)(b) of the Elections Act without:
  1. Any party to the petition having prayed for any relief in respect to the alleged illegal practice;
  2. Warning the Petitioner that he risked being penalized for having committed an illegal practice and giving him an opportunity of being heard thereon otherwise than to counter a mere allegation raised;
  3. Considering the evidence supporting the alleged illegal practice in details and assessing that evidence in the light of the requirements of section 51(3) (b).

 

  1. We shall take the Grounds in the order in which they have been raised.

 

GROUND 1(a)

  1. On Ground 1 (a), the question is whether the mere fact that the 2nd respondent had only stated that there was corrupt practice by the Appellant, without praying the Court for a relief, the Court should have at all made an order which was to all intent and purposes outside the four corners of the pleadings. Mr Bernard Georges for the Appellant submitted that Respondent No. 2 had never intended the ultimate consequence of de-registration of the Appellant when he had put in his defence. His complaint was a shield and not a sword.

 

Limits and Scope of Pleadings in an Election Case

 

  1. We would have happily granted learned counsel that argument had we been in an ordinary civil case between private parties before any other Court: see Gill v Gill SCA 4/2004. But here the parties were neither in an ordinary case nor before an ordinary court. A court entrusted to hear an election petition is a unique court in many respects as has been outlined above, both adversarial and inquisitorial. We have dwelled on that aspect sufficiently above to rehash it here.

 

  1. What is more, section 45(1) does not stay content with stating that the trial of an election petition shall be held in the same manner as a trial before the Supreme Court in its original jurisdiction.  It subjects the civil proceedings to the imperatives of the Act. Section 45(1) is stated to be subject to this Act (underlining ours.) Now, when we read section 45(2), we note that once a petition is lodged, the Court is seized with a wider jurisdiction than just an examination of the issues before the two parties. The trial by that very fact becomes the trial of an election. Section 45(2) enables the Court to go beyond the parameters of the adversarial hearing and don an inquisitorial role. It may order and compel the attendance and the examination of witnesses who are not originally in the case but are concerned. We are not basically limited by the pleadings as would be the case in an ordinary civil action between private parties.  

 

  1. In a 19th century case dealing with a like issue as the present one whether a petitioner could be questioned on his own wrong-doing in his own petition, the court held: “Except where there are recriminatory charges against the unsuccessful candidate, or for the purpose of declaring petitioner’s vote void on scrutiny, the conduct of the petitioner at an election cannot be inquired into, and in this case there is no distinction between a candidate-petitioner and a voter-petitioner”: Re Dufferin Case (1879) HEC 529. 4 AR 420 (CAN) cited in The Digest of Annotated British Commonwealth and European Cases Vo. 20, Elections, para. 1727.

 

 

  1. However, that decision did not survive for long. In the early 20th century, the overriding need to maintain the pure stream of an election process  uncorrupted came to the fore and the Courts moved away from that jurisprudence as from the case of Maidstone Case, Cornalis v Barker (1901) 5 O’M&H 149, cited in The Digest (ibid.), para. 1727.
  2. In the Seychelles’ Elections Act, like in many other up-dated elections laws, this long arm of the law is evident. Section 45(2) reads:

“45(2) The Constitutional Court may— 

(a)        by an order, compel any person who appears to the Court to be concerned in the election to attend as a witness at the trial; and

(b)        examine a witness referred to in paragraph (a) or any person in Court, although the person has not been called as a witness.

 

(3) A witness or a person referred to in (3) subsection (2) may be examined or cross examined, as the case may be, by the petitioner, respondent and Attorney-General or his representative, if present at the trial.”

 

  1. The Attorney-General has referred to the case of Moses Masika Wetangula v Musikari Nazi Kombo and William Kinyani Onyango IEBC [2013] eKLR in support. The Court did refer to these cases in its judgment at paragraph 111. That should provide the answer to this part of the Appeal. There is no merit in Ground 1((a).  

 

GROUND 1(b)

  1. On Ground 1 (b), the question is whether it was the duty of the Court to warn the appellant that he risked being penalized for having committed an illegal practice. That would have given him an opportunity to answer or not to answer the allegation or to give a proper explanation.  

 

  1. It is the argument of the Respondents that the appellant was represented by counsel of some standing so that the need was not felt. To our mind, the right against self-incrimination exists no matter whether it is a civil case, a criminal case or an enquiry. That right is attached to the person and goes with the person. It does not matter where he is: whether at the police station, in his home, in a public place, in the witness box, in a criminal case or a civil case.

 

Was there a duty to warn appellant?

 

  1. The wording of Article 19 (1) (g) should be borne in mind, however: “A person shall not be  compelled to testify at the trial or confess guilt.” On the facts, it is patently clear that the Appellant was not compelled to say whatever he had to say in his defence, in the particular circumstances of this case. There arose no duty either on his counsel or the Court to enter into the arena. On the facts, the averment against him was not a matter that had occurred out of the blue. It had been on the cards since the beginning of the case. He had all the time available to consider his position. There is no indication that he was taken by surprise in any way as learned counsel for the Respondents put it. If with the opportunity given to him, he did not apprise himself of the law, he is deemed to know the law. Eventually, he preferred to meet the allegation with his explanation.  

 

  1. On the other aspect of this ground as to whether the explanation was acceptable and should have been accepted by the Court, we shall address it along with Ground 1 (c).

 

GROUND 1(c) 

  1. The grievance of Mr Bernard Georges under  Ground 1 (c) is that the Constitutional Court did not properly examine whether the facts constituted illegal practice. The examination is extremely cursory in the judgment, according to him, in its finding that the Appellant had committed an illegal practice by publishing and distributing leaflets in the Tamil language to voters from the Tamil Community in Seychelles promising them senior posts in his government, thereby inducing them to vote for him or refrain from voting for the elected President contrary to section 51(3)(b) of the Election Act.

 

  1. The operative part of the judgment of the Constitutional Court on the question in quo reads:

                        “While it is not averred that the acts of the Petitioner affected the results of the elections in any way, it is clear that his acts satisfy the provisions of section 51(3)(b) to constitute illegal practices. Even if he was not intending to contravene the law, we view such acts especially by the leader of a political party to be reprehensible and irresponsible. We were particularly dismayed by his non chalance and levity when challenged with the evidence which he admitted. We are obliged to make a report on this matter to the Electoral Commission in terms of striking his name off the register of electors.”

 

              Court’s examination of the evidence

  1. The judgment does not give ample details of the examination of the content of the leaflet in what way it constituted an illegal practice. But the language used by the court and the record of the proceedings do show that the court had properly ascertained that the acts constituted an illegal practice within the definition of section 51(3)(b).  The leaflet even if in Tamil was translated in English and cross-examined upon. The content was admitted by the Appellant. The only criticism that can be made of the judgment is that it could have been more elaborate.

 

  1. This is an exercise we shall carry out deriving our powers under rule 31(3) of the Rules of the Court of Appeal. At the same time, we shall see whether the Court reached the right decision on the facts available on record since it is all a matter of examining a leaflet in the light of the answers given by the Appellant. This will also help us to help users of this law to demarcate the line between the lawful and the unlawful. When are promises made in an electoral campaign lawful? And when are they unlawful?

 

  1. We shall look at three cases from three jurisdictions.  The first is Ringadoo v Jugnauth [2007 SCJ 80] which was confirmed on appeal by the Judicial Committee of the Privy Council in Jugnauth v Ringadoo [2008 UKPC 50]. One of the allegations was the offer made by an elected member to the Muslim Community for the extension of their cemetery. The second is the case of Erlam & Ors v Rahman & Ors [supra], the Tower Hamlets case, in England. This had to do with the issue of an elected Mayor, a Bangla Deshi, canvassing for support from the Bangla Deshi community. We shall then compare them with the Indian case of Subramaniam Balaji v Government of Tamil Nadu & Others Civil Appeal No. 5130 of 2013] where two competing parties made competing promises of gifts in cash and kind, including household items to certain classes of people. This will enable us to consider the present case where the Appellant issued a leaflet comprising promises to the Tamil Community for positions and posts in his proposed government.

 

The impugned leaflet

 

  1. The leaflet reads:

                        “Beloved Tamil hearts you are more than my life and I, Ramkalawan who likes you all write this note to you.

                        There is a strong rumour that I will send all Tamil people out of this country and it is a wrong message and I completely deny as rumour.

 

                        My grandfather hailed from the State of Uttara Pradesh in India who migrated and settled in Seychelles.

                        While I was a religious preacher and as an Opposition Leader I have participated in all wedding ceremonies, birthday functions and funerals of all Tamil origin and I participated with my full heart; I prayed God with my full hearty and Blessed all.

                        I merge myself and live together with Indians and Tamils.

                        If all of you join together and make me as President, I shall declare Deepavali as Government holiday.

                        Those who are eligible from Tamil and Indian origins will be suitably placed positions in my cabinet; principal secretaries.

                        To flourish all trades of the trading community, my government shall do the necessary and I rule accordingly.

                        All suitable consultations shall be made and resolve those stumbling blocks amongst small traders.  

                        My Government shall find a solution to VAT very soon.

                        Those of you brothers who are afraid of this party in power since last 38 years need to join together now and support my arm; I will be one amongst you when I rule this country.

                        If I come to power, suitable tax concession arrangements shall be made for those people whose income remain less than Rupees 10,000.00.

                        Laws of GOP and Immigration will be simplified.

                        My government shall ensure that Seychelles Rupees is not devalued.

                        My Government shall take suitable and necessary steps to develop the religions, language and race of all Indians and Tamils.

                        A time slot will be allocated to Tamils in Television and Radio (video and audio).

                        While recognizing those long serving Indians and Tamils in Government service, I shall streamline the Ministry of Health and Ministry of Education;

                        If we come to power, our government shall not disturb those private employers in employment sector and never disturb at any time;

                        To improve the economy of Seychelles (country) we shall do all the necessary infrastructure.

                        The above are not just words with decorations I request all of you to support me and other parties who join me and I humbly request you to do so.

You should also be instrumental for this country to have a good rule flourishing like a flower. 

                        SUPPORT RAMAKALAWAN AND MAKE HIM VICTORIOUS TO HAVE THE STATE OF LORD RAM IN THE SEYCHELLES.”

 

The Explanation of the Appellant

  1. It is the explanation of the Appellant that the leaflet is no more than an election manifesto and an election promise like so many electoral promises. We would tend to agree with him and others who would hold that view. Except that at the same time, at some places, the leaflet loses the character of an electoral manifesto and becomes a document of bargain.

 

Court’s consideration of the content of the impugned leaflet

 

  1. The major part of it does look like an ‘election manifesto’ directed to the Tamil Community. It assumes that this community should be afforded a greater participation in his government.  Whether it really qualifies to be considered as an election manifesto, we shall analyze in due course.

 

  1. A nice pun is made on the era of Ram and the first syllable of his own name, written to win their hearts. He adds “I merge myself and live together with Indians and Tamils.” There is nothing in it. No promise is made. The concluding tour de force: “SUPPORT RAMKALAWAN AND MAKE HIM VICTORIOUS TO HAVE THE STATE OF RAM IN THE SEYCHELLES,” is political jargon. Account needs to be taken of the fact that the Opposition, in its electoral campaign, is condemned to launch its campaign based on errors of the past to sell a new vision for the future while Government has the advantage of focusing on its achievements in office. 

Where does the leaflet hurt section 51(3)(b)?

  1. At a few places, however, the leaflet begins to hurt the law. It is where it says:

                        “If all of you join together and make me as President, I shall declare Deepavali as a Government holiday. Those who are eligible from the Tamil and Indian origins will be suitably placed positions in my cabinet; principal secretaries.”

                        “If we come to power, our Government shall not disturb those private employers in employment sector and never disturb at any time.”

“The above are not just words and decorations …” 

  1. The leaflet has just used a few words too many. The promises are not just words. That it was all meant to attract their electoral support to make him President with a reciprocal commitment is patent.  Targeting a particular community like the Tamils within the larger community of Seychellois, in a language written to them, not accessible to the rest of the community is a risk that a candidate takes just like the Bangla Deshis in the Tower Hamlets case and the Muslim Community on the Jugnauth v Ringadoo [supra] case.

 

As rightly decided in the Tower Hamlets case:

            “There is world of difference … between what might, if unkindly, be termed a general ecclesiastical bleat …., and (am) especially targeted letter aimed at one particular body of the faithful telling them their religious duty is to vote for candidate A and not candidate B.

 

  1. What is the law which was violated by those words? Section 51(3)(b) reads:

51 (3) For the purposes of this section and sections 44, 45 and 47, a person commits an illegal practice where the person

(a)        ….

(b)        directly or indirectly, by that person or by any other person on that person’s behalf, gives or procures or agrees to give or procure or to endeavour to procure, any office, place or employment to or for a voter, or to or for any person, in order to induce the voter to vote or refrain from voting. ….”

 

  1. Had the same things been stated differently, it would not have fallen foul of the law. It would have passed the test of legitimacy if he had stated in the leaflet: for example, that the Tamil Community needs to have a proper recognition in the public affairs of Seychelles; that Deepavali needed to have a proper recognition; that the community needed to be properly represented in the Executive and the Civil Service etc.

 

  1. The reason is that in this case it is the offer to cater for perceived past omissions. But in the way it is written, it is striking a bargain. “Support me for Presidency in return for a Ministerial post in Cabinet and senior post in the public service. This is not an empty word but an undertaking.” The proximity to the election dated is to be noted. The leaflet is dated 9th December 2015 and the elections were due on the 16th December so that it must have been circulated in between at the time of the electoral sprint. How near to the polling day an impugned activity takes place is an important factor: see Barrow-in-Furness [4 O’M & H. 77]; Ringadoo v A.K. Jugnauth [infra].

 

The mischief lies in the element of private bargain

 

  1. The mischief lies in the element of bargaining. As the reasoning in Ringadoo v A.K. Jugnauth [2007 SCJ 80] confirmed on appeal by the Judicial Committee of the Privy Council in Jugnauth A.K v Ringadoo [2008 UKPC]:

                   “The campaign was conducted not so much along the line of government performance or but on the basis of “donnant donnant” where votes, individually and collectively, were exchanged for jobs in the civil service.”

 

  1. In Ringadoo v Jugnauth [supra], the averment was that on the 29th of December 2005 at a Centre the respondent had officially announced the acquisition of land of 2 arpents to be given to the Islamic Community as a cemetery with the sole design of inducing, influencing and bribing the voters of Muslim faith.  The Court decided:

“A candidate does not fall foul of our electoral law against bribery where he is selling so to speak government performance or electoral programme or party manifesto to attract votes. That is normal electoral campaigning. … He will fall foul of the law when he is involved in buying votes: i.e. exchange vote for money or any other valuable considerations instead of using cogent arguments to influence the voters. There must be an element of bargaining and the corrupt motive will stand out so obviously from the facts.”

 

  1. Redressing grievances of people of a particular community or locality is part of the “politique de proximité.” But this “politique de proximité” will not shield the politician where the offer of redress is exchanged for votes: see also Harjit Sing v Umrao Singh [AIR 1980 SC 701]. 

 

  1. The Supreme Court took the view that “to announce certain decisions a few days before polling whether by Cabinet or the Prime Minister may constitute an act of corrupt practice of bribery if done for a purpose which was obviously to induce the voters and which has nothing to do with the political manifesto.”

 

  1. In the case of Tower Hamlets, the candidate was playing two cards: the race card and the religious card. In our case, it is a community  card. The focus as here was on a letter which contained the then Mayor’s message. The content may be ignored. But what is important is, as has been stated in the operative part of the decision:  “Although the document speaks of the ‘community’ throughout in a neutral fashion, it must be recalled that the letter was published solely in the Bengali language in a newspaper whose readership … was restricted to Bengali speakers. It had not appeared in the English section of the newspaper.”   

 

  1. Its pernicious character was condemned as “a specially targeted letter aimed at a particular body of the faithful, telling them their religious duty is to vote for candidate A and not for candidate B.” The court sadly found that there was undue influence of the spiritual type and a breach of section 115(2) of the 1983 Act. 

The concept of free and fair election is openness

 

  1. The role played by an open offer to needy people through a manifesto is high-lighted in the case of Subramaniam Balaji v Government of Tamil Nadu & Others [Civil Appeal no. 5130 of 2013.]

 

  1. While releasing its manifesto one party had offered free distribution of Colour Television sets to each household which did not possess same. The stated intention was to provide recreation and general knowledge to the household women, more particularly living in the rural areas. When the party was elected, forms were distributed for the purpose of screening the eligible recipients and implementing the scheme.

 

  1. Another party offered in its manifesto grinders, mixers, electric fans, laptop computers, 4-gram gold thalis, Rs50,000-cash for women’s marriage, green houses, 20 kg rice to ration-card holders, free cattle and sheep on certain basis to the needy but not necessarily those under the poverty line. When the respective parties were elected, forms were distributed for the purpose of screening the eligible recipients and implementing the scheme. 

 

  1. The Court held that to the extent that these were ventilated in the party public manifesto, the offers could not be taken to be bribes and illegal practices. They stemmed from their manifestos designed to achieving social and economic democracy in the pursuit of the political democracy enshrined in the Constitution.  Thus, the freebies could not be regarded as a decision the court could enter into.

 

  1. It goes without saying that even if one of the TV sets was offered for a vote which was not foreseen in the manifesto, it would have amounted to an act of corrupt practice.  

 

Definition and role of a political manifesto

 

  1. The acts and doings derive legitimacy from a public document disseminated to the wide electoral population for the purpose of ensuring a level playing field to every participant in the campaign. This is the role played by a political manifesto. What is a political manifesto? It is “a public declaration of intentpolicyaims etc, as issued by a political party, government, or movement,” as per Collins English Dictionary, ed. 2016. Merriam-Webster's Collegiate Dictionary, Eleventh Edition defines a manifesto as “a written statement declaring publicly the intentions, motives, or views of its issuer.” It is the publicity aspect of it that makes it a manifesto in the sense that it is manifest and not restricted to a specific community. If any activity, including the freebies fall under it, it cannot be regarded as corrupt practice. But the same activity would fall foul of the law if it is not known to the rest of the nation, in a language that is understood by a small community as in this case. A bargain then is being struck privately with the rest of the electorate unaware.

 

  1. Openness is the key to a free and fair election. The people may only exercise their votes freely and fairly if they are “fully informed of the policies and qualities of all the political parties and candidates through appropriate electoral campaigns to enable voters to make an informed choice.” This extract is taken from the Shared Code of Conduct of the Political Parties and Stake Holders prior to the election in Seychelles of 2015.

 

  1. The Supreme Court in Ringadoo v Jugnauth [supra] also commented on the opprobrium of the conduct: a campaign conducted not along party policy line on an election manifesto but an offer made  to a selected group against an offer for community support for election. The difference lies in whether it is a “projet de société” or a “projet personnel” that one is projecting.

 

  1. It is all a question of what you want to convey. It is all right to say to the people or any part of the people: “My party represents this vision for the future of the nation and its people. Your interests and your concerns fall within that vision.” But it is not right to say to them in private: “Your community has been maginalized. You vote for me. And I shall offer you a Ministerial position and a senior post in the public service.”   

 

Cutting out the mischief in the leaflet

 

  1. Had the same message been conveyed differently it would have been regarded as permissible under the law:
  1. that the Tamil Community forms an important section of the whole nation;

 

  1. that the Constitution of the Republic speaks of a plural nation;
  2. that they have a number of concerns which hitherto have passed unnoticed by successive governments;
  3. that the community needs to be duly represented in the Civil Service and in the Cabinet;
  4. that time should be allocated in the national TV for an exposure of their culture and festivals;
  5. serious consideration should be given to their festival Deepavali as a public holiday.   

 

  1. It may well be that this neutral language would have had greater impact on the community. What is the difference? The same activity stated in one way becomes the opposite of itself when stated in a different way. The difference is obvious when one says: “It is permissible to pray while smoking but it is not permissible to smoke while praying.” The crux of the matter is what do you want to convey?

 

  1. The text as worded unhappily conveys the clear message of bargaining for votes, an undertaking to the community that they will obtain Deepavali as a public holiday and places in the Cabinet and senior posts in the civil service against their votes. Learned counsel has argued that there is nowhere the offer of vote mentioned. To us, that is clearly driven home by the design at the end of the document which shows a tick against his name in a simulated ballot paper. This is where it went wrong. We are not quite sure whether the Appellant had this leaflet vetted by his legal adviser/s before he released it. He should have had it so vetted.  

 

  1. This is where what may have been an otherwise worthy political enterprise to pursue went wrong and in our view, therefore, the conclusion of the Constitutional Court that the Appellant had fallen foul of the law cannot be disturbed.

 

 

OUR DECISION ON BREACH OF SECTION 51(3)(b)

 

  1. Our answer to paragraph (c) is that, while it is true the Court should have gone into more details to see whether the case against the Appellant was proved, the Constitutional Court did not err in substance in deciding as it did.

 

GROUND 2

 

The Constitutional Court erred in finding that the Appellant had committed an illegal practice contrary to section 51(3)(b) of the Elections Act in that it failed to appreciate that the Newsletter had not contained any stipulation as to vote, had not made any definite promise to any voter, had not been specific as to a voter, and had not offered to procure any office in exchange for a vote.

 

  1. Before we consider this ground, we may set the record right. The leaflet circulated was not by any standard a Newsletter. It was a private correspondence to the Tamil Community in the Tamil language obviously for their private readership.

 

Single voter v Community Votes

 

  1. Under this ground, if the argument of learned counsel is that section 51(3)(b) only applies where the acts and doings are directed to a single voter and not to a community of voters, the argument is hard to follow. The legislator cannot have intended that where the illegal practice involves a sole voter, section 51(3)(c) applies but where it concerns many voters forming a community or class, it does not. We are not prepared to go with him along this line. On the contrary, the higher the number of people targeted, the greater the gravity.  And where it is generalized, there is a duty to render the election as a whole void.

 

  1. However, there is a much shorter answer to this argument. Section 20 of the Interpretations and General Provisions Act reads:

20.       In an Act words in the singular include the plural and words in the plural include the singular.”

GROUND 3

 

The Constitutional Court erred in deciding to report that the Appellant had committed an illegal practice without first:

(a) Considering and giving the Appellant an opportunity of explaining whether the act or omission constituting the alleged illegal practice had been done or made in good faith or through inadvertence or other reasonable cause, or

(b) Considering whether, taking into account all the relevant circumstances, and after having heard the Appellant in that regards, it would be just that the alleged illegal practice should be an exception under the Elections Act and that the Appellant should not be subject to the consequences arising from the commission of the illegal practice. finding that the Appellant had committed an illegal practice contrary to section 51(3)(b) of the Elections Act.

 

  1. We shall take both limbs in the above ground together. What happened was that the moment the Court found that the case alleged against the Appellant was proved, it moved forthwith to the reporting procedure: section 47(1)-(4). These provisions read:

“(1) At the conclusion of the trial of an election petition, the Constitutional Court shall report in writing to the Electoral Commission—

(a)        whether an illegal practice has been proved to have been committed by a candidate or an agent of the candidate and the nature of the practice;

(b)        the names and descriptions of all persons who have been proved at the trial to have been guilty of an illegal practice.

 

(2) Before making any report under subsection (1)(b) in respect of a person who is not a party to an election petition the Constitutional Court shall give the person an opportunity to be heard and to call evidence to show why the person should not be reported.

 

(3) When the Constitutional Court reports that an illegal practice has been committed by a person, the person is disqualified for a period of five years from the date of the report from being registered as a voter and from voting at an election or a referendum under this Act.

(4) The Electoral Commission shall cause the name of the person reported under subsection (1) to be removed from the register of voters of the electoral area where the person is registered as a voter.”

 

  1. In that exercise, the Constitutional Court did not apply the provision of section 45(4) which vests it with power to consider any circumstance which would have assuaged the harsh legal consequence of the act and omission of the Appellant. It felt bound by the wording of section 47(1) that at the conclusion of the trial of an election petition, the Court shall report the fact to the Electoral Commissioner which would lead to his disqualification.

 

  1. We take the view that the Court should have considered the provision of section 45(4) to ascertain whether there existed reasons in the case which would have distilled the grave consequences of the reporting and disqualification. In other words, a judicious application of section 47(1) should have been made in the light of the provisions under section 45(4). This subsection reads: 

“(4) Where it appears to the Constitutional Court on an election petition—

(a)        that an act or omission of a candidate or the agent of a candidate or any other person, which, but for this section, would be an illegal practice under this Act, has been done or made in good faith through inadvertence or accidental miscalculation or some other reasonable cause of a like nature; or

(b)        that upon taking into account all the relevant circumstances it would be just that the candidate, agent of the candidate or the other person should not be subject to any of the consequences under this Act for such act or omission,

 

                        the Court may make an order allowing the act or omission, which would otherwise be an illegal practice under this Act, to be an exception to this Act and the candidate, agent or other person shall not be subject to the consequences under this Act in respect of the act or omission and the result obtained by the candidate shall not, by reason only of that act or omission, be declared to be void.”

 

Application of Natural Justice

 

  1. However, even if section 45(4) had not existed, natural justice demanded that before the report were to be made, the appellant was entitled to be heard before the coercive order could be made. As was stated in 1615 in Baggs case [11 Co. Rep 93 b], bodies entrusted with decision making power could not validly exercise it without first hearing the person who was going to suffer. That proposition of law has been made our own in the case of Jeremie v Minister CS 154/1994, 20 March 1995 whereby:

“It is the rule of natural justice that when one sits in judgment on others the decision must be supported by valid reasons.”

 

  1. In Russell v Duke of Norfolk [1949] 1 All ER 109 at 119, Tucker LJ stated as follows:

“The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with, and so forth.”

 

In other words, one a Court has made a finding that carries with it sanctions of a coercive nature, particularly of this nature which affects a fundamental Charter right, consideration should be given as to whether the sanction fits the act or omission, is of a grave or light nature before the sanction is imposed proportionally. After a finding that the case was proved against the Appellant, it was open to the Court to give an opportunity to the Appellant to consider the applicability of section 45(4), account taken of the legal consequence that was to follow. This Ground succeeds.

 

FINAL CONCLUSION ON MERITS OF THE APPEAL

 

  1. The Appeal is dismissed on Grounds 1 and 2. But it succeeds on Ground 3.

 

  1. In the circumstances, in the exercise of our powers under Rule 31(1), we would invite learned counsel of the Appellant, if he so wishes, to address us now on the application of section 45(4) to the facts of this case. Otherwise, we assume that the facts are already apparent and the submissions, especially those under paragraph 12 and 13 of his Heads of Argument dated 4th July 2016, have  sufficiently canvassed the points, in which case we shall proceed under Rule 31(3) to consider whether it is just to report the matter to the Electoral Commissioner under section 47(1) of the Elections Act.

 

FINAL DECISION

 

APPLICATION OF SECTION 47(1) OF THE ELECTIONS ACT  

 

  1. Further to our decision on the grounds of appeal, we have considered the facts of this appeal and the submissions of learned counsel for the appellant and the stand taken by the Respondents.

 

  1. We take the view that the acts and omissions arose in a one-off incident through inadvertence or misapprehension of the law.

 

  1. Taking that into account and all the relevant circumstances, we take the view that it would be just that the candidate should not be subject to the legal consequences under the Act.
  2. We, accordingly, spare the Appellant the application of section 47(1) of the Elections Act with respect to the Reporting requirement to the Electoral Commissioner.  In the circumstances, we make no order as to costs.  

 

 

S. Domah (J.A)

I concur:.                                ………………….                     F. MacGregor (PCA)

I concur:.                                ………………….                     J. Msoffe (JA)

Signed, dated and delivered at Palais de Justice, Ile du Port on 12 August 2016

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

S. Domah (J.A)

  1. On 3, 4 and 5 December 2015, Seychelles held its first round in its latest quinquennial election for the choice of its ensuing President. As per the Constitution, if any from the number of the candidates secured more than 50% of the votes, he is declared elected, failing which the process goes through a second ballot between the best two. As it happened at the end of the 3-day process, no candidate reached that ceiling. The country was then set for a second round on 16, 17 and 18 December 2015. It was the first time it had happened in the history of Seychelles. The two contestants were Respondent No. 2, Mr James Alix Michel, the President in post; and the Appellant, Mr Wavel John Charles Ramkalawon, the Opposition Leader. It was a notoriously close contest and the whole country waited with bated breaths for the announcement of the results which came out late in the night of 18 December. The Appellant, the Opposition leader had missed it by a narrow margin of 193 votes.  

 

  1. Unhappy with the outcome, Appellant filed a petition against the Electoral Commission, the elected President and the Attorney-General before the Constitutional Court.  In his view, rightly or wrongly, he would have carried the day but for the electoral malpractices.   

 

  1. He averred eleven (11) acts of illegal practice. The Respondents denied all the allegations and Respondent no. 2 went an extra mile. He averred in his defence that it was the appellant, then petitioner, who has been guilty of illegal practice within the meaning of section 51(3)(b) of the Election Act. At the end of a long hearing spanning over a couple of weeks and comprising a host of witnesses, a heap of documents and over 1,500 pages of transcript,  the Court comprising Chief Justice M. Twomey, C. McKee J. and D. Akiiki-Kiiza J.  delivered a judgment of 131 pages.

 

  1. They  found:
    1.  the acts of illegal practice not proved against the elected President;
    2. a number of others mentioned in the case needed to be summoned and were summoned to answer allegations of illegal practice;
    3. the allegation made by Respondent No. 2 proved against the Appellant on the facts and his own statement.  

 

  1. Section 47(1) of the Elections Act provides that, at the conclusion of the trial of an election petition, the Constitutional Court shall report in writing to the Electoral Commissioner its finding under section 51(3)(b), the end result of which is that he is disqualified from voting for a period of 5 years. The Court stayed the order of reporting the Appellant on his application pending the determination of the appellate Court.

 

  1. This Appeal against the decision of the Constitutional Court canvasses the following grounds:

 

GROUND 1

The Constitutional Court erred in finding that the Appellant had committed an illegal practice contrary to section 51(3)(b) of the Elections Act without:

  1. Any party to the petition having prayed for any relief in respect of the alleged illegal practice;
  2. Warning the Petitioner that he risked being penalised for having committed an illegal practice and giving him an opportunity of being heard thereon otherwise than to counter a mere allegation raised;
  3. Considering the evidence supporting the alleged illegal practice in detail and assessing that evidence in the light of the requirements of section 51(3) (b).

 

GROUND 2

The Constitutional Court erred in finding that the Appellant had committed an illegal practice contrary to section 51(3)(b) of the Elections Act in that it failed to appreciate that the Newsletter had not contained any stipulation as to vote, had not made any definite promise to any voter, had not been specific as to a voter, and had not offered to procure any office in exchange for a vote.

 

GROUND 3

 

The Constitutional Court erred in deciding to report that the Appellant had committed an illegal practice without first:

(a) Considering, and giving the Appellant an opportunity of explaining, whether the act or omission constituting the alleged illegal practice had been done or made in good faith or through inadvertence or other reasonable cause, or

(b) Considering whether, taking into account all the relevant circumstances, and after having heard the Appellant in that regards, it would be just that the alleged illegal practice should be an exception under the Elections Act and that the Appellant should not be subject to the consequences arising from the commission of the alleged illegal practice.

  1. In this appeal, we are concerned only with the above grounds. The case has other ramifications with which we are not at present concerned. Miscellaneous Proceedings are on-going.

 

Evidence and Proceedings

 

  1. The finding of illegal practice against the appellant was based on a leaflet and Appellant’s response to the questions on its content. It has not been challenged that the leaflet emanated from him. Drawn up by him in the English language, it was translated in Tamil language and circulated to the Tamil community. Dated 9th of December 2015, its proximity of the date to the second round carries some significance. In that open letter issued to the Tamil community, he had spoken about his identical origin and his close ties with the community before making certain promises: inter alia, making Deepavali a national holiday and appointing “those who are eligible from Tamil and Indian origins (in) suitably placed positions in (his) cabinet” and the public service. 
  2. Evidence had been adduced by Mr. Rajasundaram, himself a Tamil and  knowledgeable with the Tamil language and the Tamil Community. His reading of the letter was at first that it was like a manifesto. However, under cross examination by the Attorney General who read section 51 (3)(b) of the Act to him, Mr. Rajasundaram agreed that there was an apparent breach of the section in the inducement offered to the Tamil Community to vote for him and in return for favours.  We have to straightaway state that a witness’s opinion as to whether an activity falls foul of the law is neither here nor there. This was a matter of law for the trial Court at the time and for this Court on the present appeal.   

 

  1. Mr. Georges – evidently focusing on his defence that section 51(3)(b) referred to “a voter” and not a community of electors as such - questioned the witness on the Tamil community. The witness answered that the targeted readership was not a particular voter but a particular community. Further, he agreed that this was not a case where any specific person had been promised a post as a Minister in Cabinet or Principal Secretary in the public service. The letter was not personalized. It was agreed that there was no signature on the letter. Mr. Rajasundaram stated that he himself had received the letter between the first and second round of elections despite the letter being dated 9thDecember 2015.

 

Mr Ramkalawan’s Answers

 

  1. The Appellant admitted to having drafted the letter in English for the purpose of its translation and circulation to the Tamil community. It contained statements such as: Those who are eligible from Tamil and Indian origins will be suitably placed positions in my cabinet, Principal Secretaries…. The above are not just words or just decorations, I request all of you to support me and other parties to join me and I humbly request you to do so.  You should also be instrumental for this country to have a good room flourishing like a flower.  Support Ramkalawan and make him victorious.” These were amongst other benefits to the Tamil community if they were to support him and the parties representing him in the election. 
  2. Mr. Ramkalawan’s answer to the content of the leaflet has been that it was simply politicking and that all elections are about promises.  His position may be gauged by the following answers he gave: “Well I was not offering anything in particular to the Tamil or people of Indian origin, what I was basically saying is if there are people of Tamil and Indian origin who are eligible and who are suitable qualified they could very well just like anybody else be part of government.”  He added: “it was also very important for me to write to the Tamil community because there had been this notion that Ramkalawan and the SNP were xenophobes and that they hated foreigners, and given that the Tamil community is a big community that votes I thought it was my duty as a Politician campaigning to also seek their vote.” When asked whether this letter was intended to induce voters to vote for him, his answer was: “My Lords, election is about promises, so if I make a promise to the Tamil community is it not the same as making a promise to the elderly?  Is it not the same as making a promise to young people?  Is it not the same as making other promises?  This is what elections are all about.  And when politicians stand up and say I promise that I will do this that and the other, I do not see the difference between that and what is in the letter.

 

  1. That made Mr. Hoareau appearing for Respondent No. 2 probe Mr. Ramkalawan further:

“Q:       So you agree with me that you were inducing these people to vote for you on the promise of offering ministerial posts and principal secretarial post in your government to members of their community?

A:         So what?  I mean this is my answer my Lords. “

Our task in this appeal is to see whether he is correct in holding that view and giving that answer.

THE LAW

  1. Before we move to the heart of the matter, it behoves us to clear some air with respect to the law itself. This is the first time a petition of such magnitude has been brought under the Election Act 1996.

 

 

 

Nature of the Proceedings Before the Constitutional Court

 

  1. The questioned  areas touch some basic principles applicable. They related to the nature of the proceedings, the onus and the standard of proof, the categorization of the various sections, whether under the criminal law or the civil law etc. Some of the words used in the text of the law throw some doubts as to whether the hearing was a civil action or a criminal action or somewhere in between. Some phrases in the Elections Act are connotative of criminal action rather than civil action. For example, section 47(1)(b) uses the word: “guilty of an illegal practice” and other sections use the word “trial.” The terms used in civil actions are “an illegal practice stands proved” or “hearing” instead of “trial.” Not only practitioners want to be certain about it but also the citizens who are the users. The problem this duality creates becomes evident at the time of the applicability or otherwise of: (a) the right of silence; (b) the right against self-incrimination; (c) the quantum of proof which is proof beyond reasonable doubt in a criminal trial and proof on a balance of probabilities in a civil action.

 

  1. The Constitutional Court heard the case as a civil case all through and applied  the civil standard of proof. Section 45(1) makes it abundantly clear that the trial of an election petition shall be held in the same manner as a trial before the Supreme Court in its original civil jurisdiction.

 

  1. These issues have vexed not only Seychelles. They have necessitated the  authoritative pronouncement of the courts in other jurisdictions equally: Australia, Canada, India, United Kingdom, United States, Mauritius etc. Be that as it may, the law has to be certain especially one that touches each and every individual for the exercise of his or her right to vote. Candidates, voters, public authorities, practitioners need to know the scope and the limits of the various provisions and how they relate to one another in terms of application and interpretations.

 

  1. Our analysis, however, shows that the confusion does not lie in the text of the Elections Act but in our own minds. The Act creates two possible actions in actual fact: one is the civil action by way of petition and the other is a criminal action by way of a formal charge. There is no mystery in how a civil action may cohabit with a criminal action and how they relate to each other in a legislation – whether one after the other or independently of each other or in parallel. In the Canadian system, the Federal Court of Canada was called upon to clarify the position in a case as recent as 2013. In McEwing v. Canada (Attorney General) 2013 FC 525 (CanLII), the Court examined the Canadian Election Act 2000 and stated as follows:

“Prior to the enactment of the 2000 Act, procedures to overturn election results were governed by … the Dominion Controverted Elections Act, a 19th century Statute. …. (The) legislative regime … were considered to be cumbersome, costly and time-consuming and were for those reasons, rarely employed. The two jurisdictions, civil and criminal, were therefore treated separately  in the 2000 Act.”

 

Co-existence of civil and criminal actions

 

  1. A careful reading of the Seychelles Elections Act 1996 shows a comparable history and outcome. In the Canadian system, the criminal régime in section 19 is more easily demarcated from the civil régime in section 20 of the Elections Act 2000. In our Elections Act, the civil is found in sections 44-45 and the criminal in sections 51-53. However, the same acts and doings generate both a criminal and a civil action. Where the acts and doings are proved on a balance of probabilities, they lead to non-criminal sanctions such as rights suspension, de-registration etc. In Seychelles, it is removal of name from the Electoral Register for a period of 5 years, which in effect in a quinquennial legislature is for one or two elections only. The same acts and doings, if proved beyond reasonable doubt, in criminal proceedings will lead to criminal sanctions: 3 years imprisonment and SR20,000 fine. In certain cases, the maximum penalty is SR1,000,000. This explains the rationale for not creating a new and third quantum of proof in this area.

 

The mental element in civil and criminal electoral actions

 

  1. This takes us to the issue of mental element applicable in the two actions. This issue becomes relevant to us in relation to the application of section 45. The state of mind in a civil action is in abstracto: the standard of a reasonable man (English law) or “la conduite d’un bon père de famille” (French Law). Criminal liability is assessed in concreto: whether this particular defendant had the mens rea required for the offence charged. Thus, while the standard in the mental element of fraud in criminal election action would be subjective, in a civil election action that would be objective, mitigated to a mere level of recklessness or carelessness, even if in either case “the intention is doing that thing which the Statute intended to forbid.” See  Norfolk, Northern Division, Case [1869)] 1 O’M & H 236]; Wrzesnewskyj v Canada (Attorney-General) 2012 ONSC 2873 (CANLII).

 

  1. In Bielli v Canada (Attorney-General 2012 FC 916 (CANLII), the mental element in a criminal case is compared to that in a civil case where “it is not a determination based on the subjective or individual perception or experience, but what is reasonable to conclude regarding what a person ought to have known in the circumstances.”  It is a question of fact whether the person knew or should have known: McEwing v. Canada (supra).

 

  1. Further, in the case of Andrew Erlam & Ors v Lutfar Raman and Anor [2015] EWHC 1215 (Comm), at para. 56, the High Court decided that “knowledge of what they (the respondents) are doing does not need to be proved against a candidate for him to be fixed with their actions.” That admittedly is a hard fact but objective liability is part and parcel of civil law which is concerned with a community rights and obligations: see Great Yarmouth Borough Case, White v Fell (1906) 5 O’M & H 176. The reason thereof may lie in the fact that it is rare that members of the public engage in DIY corrupt practice in election time. Their activity invariably revolves round the candidate they support. It is always open to the candidate to come up and rebut his involvement in the conduct of the undesirable elements in his entourage.    

 

  1. We are concerned in the present case with a civil application of the law of illegal practice but not the criminal application of the law of illegal practice.

 

  1. In the case of Pellerin v Thérien [1997] RJQ 816 CA, the appellant challenged the constitutionality of section 465 on the ground that the sanction was suspension of his political right to vote, which was as good as a penal sanction. Yet the quantum of proof the law provided for was on a balance of probabilities. The Court of Appeal dismissed the argument holding that the two aspects of control over elections are distinct and require different substantive principles and rules of evidence. In the case of FH v MacDougall 2008 SCC 53 (CANLII), at para. 40, the Court stated that: “Absent a statutory direction to the contrary, the burden of proof never shifts to the respondent party and the quantum of remains that of the balance of probabilities.” The same view has been taken in the case of Andrew Erlam & Ors v Lutfar Raman and Anor [supra] which puts it curtly: “In general terms, an election court is a civil court not a criminal court.”

 

  1. It would be otherwise where the case was conducted on the basis of a criminal charge for election offences of corrupt or illegal practice at which time the criminal standard of proof will apply. This was definitely decided by the Court of Appeal in England, which we make our own, in the case of  R v Rowe ex parte Mainwaring [1992] 1WLR 1059.   The civil standard of proof which is balance of probabilities for the hearing of an election petition has been confirmed in the case of A.K. Jugnauth v Ringadoo [2007 SCJ 80] [supra] by the Judicial Committee of the Privy Council in Ringadoo v Jugnauth [2008 UKPC 50] insofar as it concerns the trial of an election petition as opposed to the trial of a defendant who stands charged criminally with election offences.

 

Adversarial Action with Inquisitorial dimension

 

  1. Accordingly, there should be no confusion in our minds about the nature of the action, the onus of proof and the standard of proof. We are in the area of civil proceedings, if with a statutorily added inquisitorial dimension. But not for its inquisitorial character do the nature of the action and proceedings and the onus and the quantum of proof change. Where the action starts by a citizen against another citizen by way of petition, the action is a civil action and will be governed by all the rules of the civil procedure. Where the action starts by the State against a citizen based on the offence, the action is a criminal action and will be governed by all the rules obtaining under the criminal procedure. As for the word “guilty” used in penal proceedings, it is not a monopoly of criminal law. It is of usage in civil law equally, more often seen in disciplinary proceedings: (see West’s Encyclopedia of American Law, 2nd ed. 2008.)

 

ELECTION AND DEMOCRACY

 

  1. At the same time, the high seriousness of this civil process should be in the forefront in the mind of everyone involved. An election for the choice of our legislature or the Head of State goes to the very root of our democratic system of government. In Indira Nehru Gandhi v. Raj Narain [1976] (2) SCR 347 (AIR 1975 SC 2299), the Court held:

 “Democracy is a basic feature of the Constitution. Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the Constitution. So is the need to protect and sustain the purity of the electoral process.”

THE CONSTITUTIONAL COURT SITTING AS AN ELECTION COURT

  1. Our laws have entrusted the task of protecting and sustaining the purity of the electoral process upon the Judiciary through a Constitutional Court sitting as the Election Court with at least two judges. The paramount role of this Court in the context of Seychelles calls for profound reflection on the high responsibility reposed upon it.  

 

  1. In to-day’s political world, evidence abounds that the strength of a democracy is only as good as the credibility of its elections. Elections make or break democracies. They make them where they are free, fair and credible. They break them where they are just a façade. In the IDCR: Briefing Paper Electoral Corruption. Sarah Birch, this is what has been stated:

 

“In the modern world, electoral corruption is one of the major obstacles to democratisation; it is also a significant problem in many established democracies.”

           

  1. We are going through a period of time in world history where even the established democracies seem not safe enough in the many ways elections may be rigged. Mischief makers have adopted new ways of corrupting the electoral process. In a recent election in Canada, a misleading message was sent over the internet in the name of the authorities to the voters of a particular area with a known allegiance to one of the parties. The message directed them to a place where it was not possible for them to vote. Electoral corrupt practice has taken other subtle and sophisticated forms as is evident in the case of Andrew Erlam & Ors v Lutfar Raman and Anor [supra] better known as the Tower Hamlets case. This has emphasized the role of the election courts to exercise greater vigilance over the manner in which democracies are being corrupted.

 

Election Court is a Unique Court

 

  1. It is sometimes not so obvious that an Election Court has special characteristics. As was stated in the Tower Hamlets case:  

“An election court is, in some ways, a unique tribunal. Election petitions are presented and pursued in very similar manner to claims made in the civil courts and, procedurally, the basic rules to be applied are those of the Civil Procedure Rules (“CPR”). Accordingly, election proceedings have an adversarial character. Nevertheless, election petitions differ in a number of ways from civil actions.”  

 

  1. One of the special characteristics is that it is vested with at once an adversarial character as well as an inquisitorial character: see para. 40 of  Andrew Erlam & Ors v Lutfar Raman and Anor [supra]. A like competence is vested with the Constitutional Court sitting as an Election Court. The Elections Act vests it with powers under section 45(2) whereby the court may not stay content with only the dispute between the parties but need to go further. It may order proprio motu and compel any person concerned with the election to attend as a witness to depose. The trial is not only the trial of the persons directly before court but it is one of the election itself. That is apparent by the wording of section 45(2).

 

 

Section 45 (2): Election Court’s Inquisitorial Role

 

  1. Section 45 (2) reads:

           

            “45(2) The Constitutional Court may— 

(a)        by an order, compel any person who appears to the Court to be concerned in the election to attend as a witness at the trial; and

(b)        examine a witness referred to in paragraph (a) or any person in Court, although the person has not been called as a witness.

(3) A witness or a person referred to in (3) subsection (2) may be examined or cross examined, as the case may be, by the petitioner, respondent and Attorney-General or his representative, if present at the trial.”

 

  1. All this simply highlights the role the Judiciary plays and should play in ensuring that the integrity of the electoral process is not corroded in any way whatsoever. Its primordial responsibility is to jealously guard the legacy of a democratic system of government and ensuring its continuous consolidation under the rule of law.

 

Mindfulness of nation’s fragility

   

  1. The Judiciary, however, has its institutional limits. It may only enter the scene ex post facto, for diagnosis and cure. By that time, it may well be too late. Our fragile democracies would be better served if everyone played by the rules. On and off, it would help each citizen to refer to our Constitution along with our prayer books. It is a place where we have reposed our own fate as an individual and as a nation. We have to be:  

EVER MINDFUL of the uniqueness and fragility of Seychelles;

CONSCIOUS of our colonial history before becoming an Independent Republic;

AWARE and PROUD that as descendants of different races we have learnt to live together as one Nation under God and can serve as an example for a harmonious multi-racial society ....

It shall be the duty of every citizen of Seychelles-

(a) to uphold and defend this Constitution and the law; ... and

                   (f) generally, to strive towards the fulfillment of the aspirations contained in the Preamble of this Constitution.”

  1. With the above essential preliminaries, we come to the Grounds of Appeal.

 

GROUND 1

  1. Ground 1, challenges the decision of the Constitutional Court in its finding that the Appellant had committed an illegal practice contrary to section 51(3)(b) of the Elections Act without:
  1. Any party to the petition having prayed for any relief in respect to the alleged illegal practice;
  2. Warning the Petitioner that he risked being penalized for having committed an illegal practice and giving him an opportunity of being heard thereon otherwise than to counter a mere allegation raised;
  3. Considering the evidence supporting the alleged illegal practice in details and assessing that evidence in the light of the requirements of section 51(3) (b).

 

  1. We shall take the Grounds in the order in which they have been raised.

 

GROUND 1(a)

  1. On Ground 1 (a), the question is whether the mere fact that the 2nd respondent had only stated that there was corrupt practice by the Appellant, without praying the Court for a relief, the Court should have at all made an order which was to all intent and purposes outside the four corners of the pleadings. Mr Bernard Georges for the Appellant submitted that Respondent No. 2 had never intended the ultimate consequence of de-registration of the Appellant when he had put in his defence. His complaint was a shield and not a sword.

 

Limits and Scope of Pleadings in an Election Case

 

  1. We would have happily granted learned counsel that argument had we been in an ordinary civil case between private parties before any other Court: see Gill v Gill SCA 4/2004. But here the parties were neither in an ordinary case nor before an ordinary court. A court entrusted to hear an election petition is a unique court in many respects as has been outlined above, both adversarial and inquisitorial. We have dwelled on that aspect sufficiently above to rehash it here.

 

  1. What is more, section 45(1) does not stay content with stating that the trial of an election petition shall be held in the same manner as a trial before the Supreme Court in its original jurisdiction.  It subjects the civil proceedings to the imperatives of the Act. Section 45(1) is stated to be subject to this Act (underlining ours.) Now, when we read section 45(2), we note that once a petition is lodged, the Court is seized with a wider jurisdiction than just an examination of the issues before the two parties. The trial by that very fact becomes the trial of an election. Section 45(2) enables the Court to go beyond the parameters of the adversarial hearing and don an inquisitorial role. It may order and compel the attendance and the examination of witnesses who are not originally in the case but are concerned. We are not basically limited by the pleadings as would be the case in an ordinary civil action between private parties.  

 

  1. In a 19th century case dealing with a like issue as the present one whether a petitioner could be questioned on his own wrong-doing in his own petition, the court held: “Except where there are recriminatory charges against the unsuccessful candidate, or for the purpose of declaring petitioner’s vote void on scrutiny, the conduct of the petitioner at an election cannot be inquired into, and in this case there is no distinction between a candidate-petitioner and a voter-petitioner”: Re Dufferin Case (1879) HEC 529. 4 AR 420 (CAN) cited in The Digest of Annotated British Commonwealth and European Cases Vo. 20, Elections, para. 1727.

 

 

  1. However, that decision did not survive for long. In the early 20th century, the overriding need to maintain the pure stream of an election process  uncorrupted came to the fore and the Courts moved away from that jurisprudence as from the case of Maidstone Case, Cornalis v Barker (1901) 5 O’M&H 149, cited in The Digest (ibid.), para. 1727.
  2. In the Seychelles’ Elections Act, like in many other up-dated elections laws, this long arm of the law is evident. Section 45(2) reads:

“45(2) The Constitutional Court may— 

(a)        by an order, compel any person who appears to the Court to be concerned in the election to attend as a witness at the trial; and

(b)        examine a witness referred to in paragraph (a) or any person in Court, although the person has not been called as a witness.

 

(3) A witness or a person referred to in (3) subsection (2) may be examined or cross examined, as the case may be, by the petitioner, respondent and Attorney-General or his representative, if present at the trial.”

 

  1. The Attorney-General has referred to the case of Moses Masika Wetangula v Musikari Nazi Kombo and William Kinyani Onyango IEBC [2013] eKLR in support. The Court did refer to these cases in its judgment at paragraph 111. That should provide the answer to this part of the Appeal. There is no merit in Ground 1((a).  

 

GROUND 1(b)

  1. On Ground 1 (b), the question is whether it was the duty of the Court to warn the appellant that he risked being penalized for having committed an illegal practice. That would have given him an opportunity to answer or not to answer the allegation or to give a proper explanation.  

 

  1. It is the argument of the Respondents that the appellant was represented by counsel of some standing so that the need was not felt. To our mind, the right against self-incrimination exists no matter whether it is a civil case, a criminal case or an enquiry. That right is attached to the person and goes with the person. It does not matter where he is: whether at the police station, in his home, in a public place, in the witness box, in a criminal case or a civil case.

 

Was there a duty to warn appellant?

 

  1. The wording of Article 19 (1) (g) should be borne in mind, however: “A person shall not be  compelled to testify at the trial or confess guilt.” On the facts, it is patently clear that the Appellant was not compelled to say whatever he had to say in his defence, in the particular circumstances of this case. There arose no duty either on his counsel or the Court to enter into the arena. On the facts, the averment against him was not a matter that had occurred out of the blue. It had been on the cards since the beginning of the case. He had all the time available to consider his position. There is no indication that he was taken by surprise in any way as learned counsel for the Respondents put it. If with the opportunity given to him, he did not apprise himself of the law, he is deemed to know the law. Eventually, he preferred to meet the allegation with his explanation.  

 

  1. On the other aspect of this ground as to whether the explanation was acceptable and should have been accepted by the Court, we shall address it along with Ground 1 (c).

 

GROUND 1(c) 

  1. The grievance of Mr Bernard Georges under  Ground 1 (c) is that the Constitutional Court did not properly examine whether the facts constituted illegal practice. The examination is extremely cursory in the judgment, according to him, in its finding that the Appellant had committed an illegal practice by publishing and distributing leaflets in the Tamil language to voters from the Tamil Community in Seychelles promising them senior posts in his government, thereby inducing them to vote for him or refrain from voting for the elected President contrary to section 51(3)(b) of the Election Act.

 

  1. The operative part of the judgment of the Constitutional Court on the question in quo reads:

                        “While it is not averred that the acts of the Petitioner affected the results of the elections in any way, it is clear that his acts satisfy the provisions of section 51(3)(b) to constitute illegal practices. Even if he was not intending to contravene the law, we view such acts especially by the leader of a political party to be reprehensible and irresponsible. We were particularly dismayed by his non chalance and levity when challenged with the evidence which he admitted. We are obliged to make a report on this matter to the Electoral Commission in terms of striking his name off the register of electors.”

 

              Court’s examination of the evidence

  1. The judgment does not give ample details of the examination of the content of the leaflet in what way it constituted an illegal practice. But the language used by the court and the record of the proceedings do show that the court had properly ascertained that the acts constituted an illegal practice within the definition of section 51(3)(b).  The leaflet even if in Tamil was translated in English and cross-examined upon. The content was admitted by the Appellant. The only criticism that can be made of the judgment is that it could have been more elaborate.

 

  1. This is an exercise we shall carry out deriving our powers under rule 31(3) of the Rules of the Court of Appeal. At the same time, we shall see whether the Court reached the right decision on the facts available on record since it is all a matter of examining a leaflet in the light of the answers given by the Appellant. This will also help us to help users of this law to demarcate the line between the lawful and the unlawful. When are promises made in an electoral campaign lawful? And when are they unlawful?

 

  1. We shall look at three cases from three jurisdictions.  The first is Ringadoo v Jugnauth [2007 SCJ 80] which was confirmed on appeal by the Judicial Committee of the Privy Council in Jugnauth v Ringadoo [2008 UKPC 50]. One of the allegations was the offer made by an elected member to the Muslim Community for the extension of their cemetery. The second is the case of Erlam & Ors v Rahman & Ors [supra], the Tower Hamlets case, in England. This had to do with the issue of an elected Mayor, a Bangla Deshi, canvassing for support from the Bangla Deshi community. We shall then compare them with the Indian case of Subramaniam Balaji v Government of Tamil Nadu & Others Civil Appeal No. 5130 of 2013] where two competing parties made competing promises of gifts in cash and kind, including household items to certain classes of people. This will enable us to consider the present case where the Appellant issued a leaflet comprising promises to the Tamil Community for positions and posts in his proposed government.

 

The impugned leaflet

 

  1. The leaflet reads:

                        “Beloved Tamil hearts you are more than my life and I, Ramkalawan who likes you all write this note to you.

                        There is a strong rumour that I will send all Tamil people out of this country and it is a wrong message and I completely deny as rumour.

 

                        My grandfather hailed from the State of Uttara Pradesh in India who migrated and settled in Seychelles.

                        While I was a religious preacher and as an Opposition Leader I have participated in all wedding ceremonies, birthday functions and funerals of all Tamil origin and I participated with my full heart; I prayed God with my full hearty and Blessed all.

                        I merge myself and live together with Indians and Tamils.

                        If all of you join together and make me as President, I shall declare Deepavali as Government holiday.

                        Those who are eligible from Tamil and Indian origins will be suitably placed positions in my cabinet; principal secretaries.

                        To flourish all trades of the trading community, my government shall do the necessary and I rule accordingly.

                        All suitable consultations shall be made and resolve those stumbling blocks amongst small traders.  

                        My Government shall find a solution to VAT very soon.

                        Those of you brothers who are afraid of this party in power since last 38 years need to join together now and support my arm; I will be one amongst you when I rule this country.

                        If I come to power, suitable tax concession arrangements shall be made for those people whose income remain less than Rupees 10,000.00.

                        Laws of GOP and Immigration will be simplified.

                        My government shall ensure that Seychelles Rupees is not devalued.

                        My Government shall take suitable and necessary steps to develop the religions, language and race of all Indians and Tamils.

                        A time slot will be allocated to Tamils in Television and Radio (video and audio).

                        While recognizing those long serving Indians and Tamils in Government service, I shall streamline the Ministry of Health and Ministry of Education;

                        If we come to power, our government shall not disturb those private employers in employment sector and never disturb at any time;

                        To improve the economy of Seychelles (country) we shall do all the necessary infrastructure.

                        The above are not just words with decorations I request all of you to support me and other parties who join me and I humbly request you to do so.

You should also be instrumental for this country to have a good rule flourishing like a flower. 

                        SUPPORT RAMAKALAWAN AND MAKE HIM VICTORIOUS TO HAVE THE STATE OF LORD RAM IN THE SEYCHELLES.”

 

The Explanation of the Appellant

  1. It is the explanation of the Appellant that the leaflet is no more than an election manifesto and an election promise like so many electoral promises. We would tend to agree with him and others who would hold that view. Except that at the same time, at some places, the leaflet loses the character of an electoral manifesto and becomes a document of bargain.

 

Court’s consideration of the content of the impugned leaflet

 

  1. The major part of it does look like an ‘election manifesto’ directed to the Tamil Community. It assumes that this community should be afforded a greater participation in his government.  Whether it really qualifies to be considered as an election manifesto, we shall analyze in due course.

 

  1. A nice pun is made on the era of Ram and the first syllable of his own name, written to win their hearts. He adds “I merge myself and live together with Indians and Tamils.” There is nothing in it. No promise is made. The concluding tour de force: “SUPPORT RAMKALAWAN AND MAKE HIM VICTORIOUS TO HAVE THE STATE OF RAM IN THE SEYCHELLES,” is political jargon. Account needs to be taken of the fact that the Opposition, in its electoral campaign, is condemned to launch its campaign based on errors of the past to sell a new vision for the future while Government has the advantage of focusing on its achievements in office. 

Where does the leaflet hurt section 51(3)(b)?

  1. At a few places, however, the leaflet begins to hurt the law. It is where it says:

                        “If all of you join together and make me as President, I shall declare Deepavali as a Government holiday. Those who are eligible from the Tamil and Indian origins will be suitably placed positions in my cabinet; principal secretaries.”

                        “If we come to power, our Government shall not disturb those private employers in employment sector and never disturb at any time.”

“The above are not just words and decorations …” 

  1. The leaflet has just used a few words too many. The promises are not just words. That it was all meant to attract their electoral support to make him President with a reciprocal commitment is patent.  Targeting a particular community like the Tamils within the larger community of Seychellois, in a language written to them, not accessible to the rest of the community is a risk that a candidate takes just like the Bangla Deshis in the Tower Hamlets case and the Muslim Community on the Jugnauth v Ringadoo [supra] case.

 

As rightly decided in the Tower Hamlets case:

            “There is world of difference … between what might, if unkindly, be termed a general ecclesiastical bleat …., and (am) especially targeted letter aimed at one particular body of the faithful telling them their religious duty is to vote for candidate A and not candidate B.

 

  1. What is the law which was violated by those words? Section 51(3)(b) reads:

51 (3) For the purposes of this section and sections 44, 45 and 47, a person commits an illegal practice where the person

(a)        ….

(b)        directly or indirectly, by that person or by any other person on that person’s behalf, gives or procures or agrees to give or procure or to endeavour to procure, any office, place or employment to or for a voter, or to or for any person, in order to induce the voter to vote or refrain from voting. ….”

 

  1. Had the same things been stated differently, it would not have fallen foul of the law. It would have passed the test of legitimacy if he had stated in the leaflet: for example, that the Tamil Community needs to have a proper recognition in the public affairs of Seychelles; that Deepavali needed to have a proper recognition; that the community needed to be properly represented in the Executive and the Civil Service etc.

 

  1. The reason is that in this case it is the offer to cater for perceived past omissions. But in the way it is written, it is striking a bargain. “Support me for Presidency in return for a Ministerial post in Cabinet and senior post in the public service. This is not an empty word but an undertaking.” The proximity to the election dated is to be noted. The leaflet is dated 9th December 2015 and the elections were due on the 16th December so that it must have been circulated in between at the time of the electoral sprint. How near to the polling day an impugned activity takes place is an important factor: see Barrow-in-Furness [4 O’M & H. 77]; Ringadoo v A.K. Jugnauth [infra].

 

The mischief lies in the element of private bargain

 

  1. The mischief lies in the element of bargaining. As the reasoning in Ringadoo v A.K. Jugnauth [2007 SCJ 80] confirmed on appeal by the Judicial Committee of the Privy Council in Jugnauth A.K v Ringadoo [2008 UKPC]:

                   “The campaign was conducted not so much along the line of government performance or but on the basis of “donnant donnant” where votes, individually and collectively, were exchanged for jobs in the civil service.”

 

  1. In Ringadoo v Jugnauth [supra], the averment was that on the 29th of December 2005 at a Centre the respondent had officially announced the acquisition of land of 2 arpents to be given to the Islamic Community as a cemetery with the sole design of inducing, influencing and bribing the voters of Muslim faith.  The Court decided:

“A candidate does not fall foul of our electoral law against bribery where he is selling so to speak government performance or electoral programme or party manifesto to attract votes. That is normal electoral campaigning. … He will fall foul of the law when he is involved in buying votes: i.e. exchange vote for money or any other valuable considerations instead of using cogent arguments to influence the voters. There must be an element of bargaining and the corrupt motive will stand out so obviously from the facts.”

 

  1. Redressing grievances of people of a particular community or locality is part of the “politique de proximité.” But this “politique de proximité” will not shield the politician where the offer of redress is exchanged for votes: see also Harjit Sing v Umrao Singh [AIR 1980 SC 701]. 

 

  1. The Supreme Court took the view that “to announce certain decisions a few days before polling whether by Cabinet or the Prime Minister may constitute an act of corrupt practice of bribery if done for a purpose which was obviously to induce the voters and which has nothing to do with the political manifesto.”

 

  1. In the case of Tower Hamlets, the candidate was playing two cards: the race card and the religious card. In our case, it is a community  card. The focus as here was on a letter which contained the then Mayor’s message. The content may be ignored. But what is important is, as has been stated in the operative part of the decision:  “Although the document speaks of the ‘community’ throughout in a neutral fashion, it must be recalled that the letter was published solely in the Bengali language in a newspaper whose readership … was restricted to Bengali speakers. It had not appeared in the English section of the newspaper.”   

 

  1. Its pernicious character was condemned as “a specially targeted letter aimed at a particular body of the faithful, telling them their religious duty is to vote for candidate A and not for candidate B.” The court sadly found that there was undue influence of the spiritual type and a breach of section 115(2) of the 1983 Act. 

The concept of free and fair election is openness

 

  1. The role played by an open offer to needy people through a manifesto is high-lighted in the case of Subramaniam Balaji v Government of Tamil Nadu & Others [Civil Appeal no. 5130 of 2013.]

 

  1. While releasing its manifesto one party had offered free distribution of Colour Television sets to each household which did not possess same. The stated intention was to provide recreation and general knowledge to the household women, more particularly living in the rural areas. When the party was elected, forms were distributed for the purpose of screening the eligible recipients and implementing the scheme.

 

  1. Another party offered in its manifesto grinders, mixers, electric fans, laptop computers, 4-gram gold thalis, Rs50,000-cash for women’s marriage, green houses, 20 kg rice to ration-card holders, free cattle and sheep on certain basis to the needy but not necessarily those under the poverty line. When the respective parties were elected, forms were distributed for the purpose of screening the eligible recipients and implementing the scheme. 

 

  1. The Court held that to the extent that these were ventilated in the party public manifesto, the offers could not be taken to be bribes and illegal practices. They stemmed from their manifestos designed to achieving social and economic democracy in the pursuit of the political democracy enshrined in the Constitution.  Thus, the freebies could not be regarded as a decision the court could enter into.

 

  1. It goes without saying that even if one of the TV sets was offered for a vote which was not foreseen in the manifesto, it would have amounted to an act of corrupt practice.  

 

Definition and role of a political manifesto

 

  1. The acts and doings derive legitimacy from a public document disseminated to the wide electoral population for the purpose of ensuring a level playing field to every participant in the campaign. This is the role played by a political manifesto. What is a political manifesto? It is “a public declaration of intentpolicyaims etc, as issued by a political party, government, or movement,” as per Collins English Dictionary, ed. 2016. Merriam-Webster's Collegiate Dictionary, Eleventh Edition defines a manifesto as “a written statement declaring publicly the intentions, motives, or views of its issuer.” It is the publicity aspect of it that makes it a manifesto in the sense that it is manifest and not restricted to a specific community. If any activity, including the freebies fall under it, it cannot be regarded as corrupt practice. But the same activity would fall foul of the law if it is not known to the rest of the nation, in a language that is understood by a small community as in this case. A bargain then is being struck privately with the rest of the electorate unaware.

 

  1. Openness is the key to a free and fair election. The people may only exercise their votes freely and fairly if they are “fully informed of the policies and qualities of all the political parties and candidates through appropriate electoral campaigns to enable voters to make an informed choice.” This extract is taken from the Shared Code of Conduct of the Political Parties and Stake Holders prior to the election in Seychelles of 2015.

 

  1. The Supreme Court in Ringadoo v Jugnauth [supra] also commented on the opprobrium of the conduct: a campaign conducted not along party policy line on an election manifesto but an offer made  to a selected group against an offer for community support for election. The difference lies in whether it is a “projet de société” or a “projet personnel” that one is projecting.

 

  1. It is all a question of what you want to convey. It is all right to say to the people or any part of the people: “My party represents this vision for the future of the nation and its people. Your interests and your concerns fall within that vision.” But it is not right to say to them in private: “Your community has been maginalized. You vote for me. And I shall offer you a Ministerial position and a senior post in the public service.”   

 

Cutting out the mischief in the leaflet

 

  1. Had the same message been conveyed differently it would have been regarded as permissible under the law:
  1. that the Tamil Community forms an important section of the whole nation;

 

  1. that the Constitution of the Republic speaks of a plural nation;
  2. that they have a number of concerns which hitherto have passed unnoticed by successive governments;
  3. that the community needs to be duly represented in the Civil Service and in the Cabinet;
  4. that time should be allocated in the national TV for an exposure of their culture and festivals;
  5. serious consideration should be given to their festival Deepavali as a public holiday.   

 

  1. It may well be that this neutral language would have had greater impact on the community. What is the difference? The same activity stated in one way becomes the opposite of itself when stated in a different way. The difference is obvious when one says: “It is permissible to pray while smoking but it is not permissible to smoke while praying.” The crux of the matter is what do you want to convey?

 

  1. The text as worded unhappily conveys the clear message of bargaining for votes, an undertaking to the community that they will obtain Deepavali as a public holiday and places in the Cabinet and senior posts in the civil service against their votes. Learned counsel has argued that there is nowhere the offer of vote mentioned. To us, that is clearly driven home by the design at the end of the document which shows a tick against his name in a simulated ballot paper. This is where it went wrong. We are not quite sure whether the Appellant had this leaflet vetted by his legal adviser/s before he released it. He should have had it so vetted.  

 

  1. This is where what may have been an otherwise worthy political enterprise to pursue went wrong and in our view, therefore, the conclusion of the Constitutional Court that the Appellant had fallen foul of the law cannot be disturbed.

 

 

OUR DECISION ON BREACH OF SECTION 51(3)(b)

 

  1. Our answer to paragraph (c) is that, while it is true the Court should have gone into more details to see whether the case against the Appellant was proved, the Constitutional Court did not err in substance in deciding as it did.

 

GROUND 2

 

The Constitutional Court erred in finding that the Appellant had committed an illegal practice contrary to section 51(3)(b) of the Elections Act in that it failed to appreciate that the Newsletter had not contained any stipulation as to vote, had not made any definite promise to any voter, had not been specific as to a voter, and had not offered to procure any office in exchange for a vote.

 

  1. Before we consider this ground, we may set the record right. The leaflet circulated was not by any standard a Newsletter. It was a private correspondence to the Tamil Community in the Tamil language obviously for their private readership.

 

Single voter v Community Votes

 

  1. Under this ground, if the argument of learned counsel is that section 51(3)(b) only applies where the acts and doings are directed to a single voter and not to a community of voters, the argument is hard to follow. The legislator cannot have intended that where the illegal practice involves a sole voter, section 51(3)(c) applies but where it concerns many voters forming a community or class, it does not. We are not prepared to go with him along this line. On the contrary, the higher the number of people targeted, the greater the gravity.  And where it is generalized, there is a duty to render the election as a whole void.

 

  1. However, there is a much shorter answer to this argument. Section 20 of the Interpretations and General Provisions Act reads:

20.       In an Act words in the singular include the plural and words in the plural include the singular.”

GROUND 3

 

The Constitutional Court erred in deciding to report that the Appellant had committed an illegal practice without first:

(a) Considering and giving the Appellant an opportunity of explaining whether the act or omission constituting the alleged illegal practice had been done or made in good faith or through inadvertence or other reasonable cause, or

(b) Considering whether, taking into account all the relevant circumstances, and after having heard the Appellant in that regards, it would be just that the alleged illegal practice should be an exception under the Elections Act and that the Appellant should not be subject to the consequences arising from the commission of the illegal practice. finding that the Appellant had committed an illegal practice contrary to section 51(3)(b) of the Elections Act.

 

  1. We shall take both limbs in the above ground together. What happened was that the moment the Court found that the case alleged against the Appellant was proved, it moved forthwith to the reporting procedure: section 47(1)-(4). These provisions read:

“(1) At the conclusion of the trial of an election petition, the Constitutional Court shall report in writing to the Electoral Commission—

(a)        whether an illegal practice has been proved to have been committed by a candidate or an agent of the candidate and the nature of the practice;

(b)        the names and descriptions of all persons who have been proved at the trial to have been guilty of an illegal practice.

 

(2) Before making any report under subsection (1)(b) in respect of a person who is not a party to an election petition the Constitutional Court shall give the person an opportunity to be heard and to call evidence to show why the person should not be reported.

 

(3) When the Constitutional Court reports that an illegal practice has been committed by a person, the person is disqualified for a period of five years from the date of the report from being registered as a voter and from voting at an election or a referendum under this Act.

(4) The Electoral Commission shall cause the name of the person reported under subsection (1) to be removed from the register of voters of the electoral area where the person is registered as a voter.”

 

  1. In that exercise, the Constitutional Court did not apply the provision of section 45(4) which vests it with power to consider any circumstance which would have assuaged the harsh legal consequence of the act and omission of the Appellant. It felt bound by the wording of section 47(1) that at the conclusion of the trial of an election petition, the Court shall report the fact to the Electoral Commissioner which would lead to his disqualification.

 

  1. We take the view that the Court should have considered the provision of section 45(4) to ascertain whether there existed reasons in the case which would have distilled the grave consequences of the reporting and disqualification. In other words, a judicious application of section 47(1) should have been made in the light of the provisions under section 45(4). This subsection reads: 

“(4) Where it appears to the Constitutional Court on an election petition—

(a)        that an act or omission of a candidate or the agent of a candidate or any other person, which, but for this section, would be an illegal practice under this Act, has been done or made in good faith through inadvertence or accidental miscalculation or some other reasonable cause of a like nature; or

(b)        that upon taking into account all the relevant circumstances it would be just that the candidate, agent of the candidate or the other person should not be subject to any of the consequences under this Act for such act or omission,

 

                        the Court may make an order allowing the act or omission, which would otherwise be an illegal practice under this Act, to be an exception to this Act and the candidate, agent or other person shall not be subject to the consequences under this Act in respect of the act or omission and the result obtained by the candidate shall not, by reason only of that act or omission, be declared to be void.”

 

Application of Natural Justice

 

  1. However, even if section 45(4) had not existed, natural justice demanded that before the report were to be made, the appellant was entitled to be heard before the coercive order could be made. As was stated in 1615 in Baggs case [11 Co. Rep 93 b], bodies entrusted with decision making power could not validly exercise it without first hearing the person who was going to suffer. That proposition of law has been made our own in the case of Jeremie v Minister CS 154/1994, 20 March 1995 whereby:

“It is the rule of natural justice that when one sits in judgment on others the decision must be supported by valid reasons.”

 

  1. In Russell v Duke of Norfolk [1949] 1 All ER 109 at 119, Tucker LJ stated as follows:

“The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with, and so forth.”

 

In other words, one a Court has made a finding that carries with it sanctions of a coercive nature, particularly of this nature which affects a fundamental Charter right, consideration should be given as to whether the sanction fits the act or omission, is of a grave or light nature before the sanction is imposed proportionally. After a finding that the case was proved against the Appellant, it was open to the Court to give an opportunity to the Appellant to consider the applicability of section 45(4), account taken of the legal consequence that was to follow. This Ground succeeds.

 

FINAL CONCLUSION ON MERITS OF THE APPEAL

 

  1. The Appeal is dismissed on Grounds 1 and 2. But it succeeds on Ground 3.

 

  1. In the circumstances, in the exercise of our powers under Rule 31(1), we would invite learned counsel of the Appellant, if he so wishes, to address us now on the application of section 45(4) to the facts of this case. Otherwise, we assume that the facts are already apparent and the submissions, especially those under paragraph 12 and 13 of his Heads of Argument dated 4th July 2016, have  sufficiently canvassed the points, in which case we shall proceed under Rule 31(3) to consider whether it is just to report the matter to the Electoral Commissioner under section 47(1) of the Elections Act.

 

FINAL DECISION

 

APPLICATION OF SECTION 47(1) OF THE ELECTIONS ACT  

 

  1. Further to our decision on the grounds of appeal, we have considered the facts of this appeal and the submissions of learned counsel for the appellant and the stand taken by the Respondents.

 

  1. We take the view that the acts and omissions arose in a one-off incident through inadvertence or misapprehension of the law.

 

  1. Taking that into account and all the relevant circumstances, we take the view that it would be just that the candidate should not be subject to the legal consequences under the Act.
  2. We, accordingly, spare the Appellant the application of section 47(1) of the Elections Act with respect to the Reporting requirement to the Electoral Commissioner.  In the circumstances, we make no order as to costs.  

 

 

S. Domah (J.A)

I concur:.                                ………………….                     F. MacGregor (PCA)

I concur:.                                ………………….                     J. Msoffe (JA)

Signed, dated and delivered at Palais de Justice, Ile du Port on 12 August 2016

 

 

 

 

 

 

 

 

 

 

 

Judgment of  Fernando (J.A)

 

  1. The Appellant has appealed against the part of the decision of the Constitutional Court which made a finding that he committed an illegal practice contrary to section 51(3)(b) of the Elections Act (Cap 68A) on the following grounds:

 

  1. The Constitutional Court erred in finding that the Appellant had committed an illegal practice contrary to section 51(3)(b) of the Elections Act without:

 

  1. Any party to the Petition having prayed for any relief in respect of the alleged illegal practice
  2. Warning the Petitioner that he risked being penalised for having committed an illegal practice and giving him an opportunity of being heard thereon otherwise than to counter a mere allegation raised
  3. Considering the evidence supporting the alleged illegal practice in detail and assessing that evidence in light of the requirements of section 51(3)(b).

 

  1. The Constitutional Court erred in finding that the Appellant had committed an illegal practice contrary to section 51(3)(b) of the Elections Act in that it failed to appreciate that the newsletter had not contained any stipulation as to vote, had not made any definite promise to any voter, had not been specific as to a voter, and had not offered to procure any office in exchange for a vote.

 

  1. The Constitutional Court erred in deciding to report that the Appellant had committed an illegal practice without first:

 

  1. Considering and giving the Appellant an opportunity of explaining, whether the act or omission constituting the alleged illegal practice had been done or made in good faith or through inadvertence or other reasonable cause, or

 

  1. Considering whether, taking into account all the relevant circumstances, and after having heard the Appellant in that regard, it would be just that the illegal practice should be an exception under the Elections Act and that the Appellant should not be subject to the consequences arising from the commission of the alleged illegal practice.

 

By way of relief the Appellant has prayed for an order allowing the appeal, reversing the finding of the Constitutional Court that an illegal practice had been committed by the Appellant in respect of a newsletter issued to the Tamil Community of Seychelles, and quashing any decision of the Court pursuant to the finding.

 

  1. It is best to understand the background to this case and for that purpose I have adopted the statements in the judgment of the Constitutional Court which accurately sets out the facts in this regard:

“[1] In early December 2015, the citizens of Seychelles went to the Polling Stations to choose their president for the next five years. This important democratic exercise was run by the First Respondent, the Electoral Commission, which is a politically independent body constitutionally mandated to conduct and supervise elections in Seychelles (see article 115(3) and article 116(1)(a) of the Constitution of the Republic of Seychelles, hereinafter referred to as “the Constitution”). The Petitioner, Mr. Wavel John Charles Ramkalawan, (Appellant in this case) and the Second Respondent, Mr. James Alix Michel, were both candidates for the presidency for their respective political parties, Seychelles National Party (SNP) and Parti Lepep (PL).

 

[2]…The elections took place over three days (3rd to 5th December 2015) to allow Seychellois living on remote islands to vote first, followed by the inhabitants of the three main populated islands of Mahé, Praslin and La Digue on the final day. Six political parties fielded candidates in the election and a staggering 87.4 percent of the eligible voters turned out on the day to cast their ballot, (a total number of 62,004 people)…

 

[3] …In this election, the Second Respondent, who was running for his third term of office, secured the highest percentage of votes (47.76%). However, he failed to secure the required fifty percent of the votes in the election in order to be appointed as the president (see in this regard schedule 3, paragraph 5 of the Constitution). The Petitioner secured 35.33% of the vote with the other four opposition parties making up the remaining percentages...

 

[4] With no candidate securing more than fifty percent of the vote, the First Respondent was required by law to run a second round of elections. According to Schedule 3 paragraph 8 of the Constitution, in a second round of presidential elections only the two candidates with the highest number of votes take part. Therefore, the Petitioner (Appellant in this case) and the Second Respondent were to run against each other.

 

[5] The second round of the election was held on 16th, 17th and 18th December 2015.  A record number of 63,983 persons voted over the three days… Late in the evening on 18th December 2015, the following results were declared by the First Respondent:-

 

31,319 (49.85% of the votes) votes in favour of the Petitioner (Appellant in this case).

 

31,512 (50.15% of the votes) in favour of the Second Respondent.

 

Hence, the Second Respondent won the election by 193 votes.

 

[6] After this historic process, the Petitioner brought two cases to the Constitutional Court as he felt aggrieved by the declaration by the First Respondent, that the Second Respondent was validly elected President of Seychelles. The first case was brought as a Constitutional Petition in terms of Article 130 of the Constitution and given case number CP 07/2015. The second, this Petition was brought under section 51 of the Constitution and section 44 of the Elections Act, Cap 68A (hereinafter “the Act”). This case is assigned the case number CP 01/2016.

 

[7] The Third Respondent, the Attorney General, was joined to the Petition under rule 7(4) of the Presidential Election and National Assembly Election (Election Petition) Rules, 1998.

 

[8] The Petition was lodged in the Registry of the Supreme Court on the 5th January, 2016, and the Respondents filed their replies thereto. Since both cases involve the same parties the two cases, CP 01/2016 and CP 07/2015 were consolidated for the purposes of hearing the matters and the hearings commenced on the 14th January 2016. Today we are handing down judgments in both matters separately under their assigned case numbers.”.

 

3. The appeal in this case is against the part of the judgment of the Constitutional Court in CP 01/2016 wherein the Constitutional Court made a finding that the Appellant had committed an illegal practice contrary to section 51(3)(b) of the Elections Act and the decision of the Constitutional Court to make a report on this matter to the Electoral Commission in terms of striking the Appellant’s name off the register of voters.

 

  1. The part of the decision of the Constitutional Court which made a finding that the Petitioner committed an illegal practice contrary to section 51(3)(b) of the Elections Act is set out below:

 

“The Second Respondent did not file a Counter Petition but averred in his Statement of Defence that the Petitioner had himself committed an illegal practice by publishing and distributing leaflets in the Tamil Language to voters from the Tamil Community in Seychelles promising them inter alia senior posts in his government so as induce them to vote for him or to refrain from voting for the Second Respondent. This was contrary to section 51(3)(b) of the Act (supra) (paragraph 473 of the judgment)(emphasus added by me)

 

While it is not averred that the acts of the Petitioner affected the results of the elections in any way, it is clear that his acts satisfy the provisions of section 51 (3) (b) to constitute illegal practices. Even if he was not intending to contravene the law, we view such acts ‘especially by the leader of a political party to be reprehensible and irresponsible’. We were particularly dismayed by ‘his nonchalance and levity when challenged with the evidence’, which he admitted. We are obliged to make a report on this matter to the Electoral Commission in terms of striking his name off the register of voters. (paragraph 474 of the judgment).[emphasis added by me]

 

We take this opportunity to warn future candidates to be careful about their conduct and the potential when making electioneering promises in contravention of the provisions of the law. (paragraph 475 of the judgment) (emphasis added by me)

 

For the avoidance of any doubt, a report by the Constitutional Court will be forwarded to the Electoral Commission in regards to the illegal practice by the Petitioner pursuant to section 47(1) (a) of the Act. (paragraph 529 of the judgment)”

 

  1. I refer below to all the references made in the 130 page judgment which had 530 paragraphs in regard to the illegal practice committed by the Petitioner:

 

“On the other hand, the Second Respondent averred that the Petitioner had committed an illegal practice by publishing and distributing leaflets in the Tamil Language to voters from the Tamil Community in Seychelles promising them senior posts in his government, thereby inducing them to vote for him or to refrain from voting for the Second Respondent. This was

contrary to Section 51(3)(b) of the Elections Act”. (paragraph 22 of the judgment)

 

Mr. Hoareau, on behalf of the Second Respondent, introduced a letter which the Petitioner had written to the Tamil Community on the 9th of December 2015. In the letter the Petitioner committed himself to protecting the interests of the Tamil community, undertook to make Deepavali a national holiday and to appoint “those who are eligible from Tamil and Indian origins (in) suitably placed positions in (his) cabinet”. These were amongst other benefits to the Tamil community if they were to vote for him.In response the Petitioner stated that it was simply politicking and that all elections are about promises. (paragraph 267 of the judgment)

 

The Second Respondent called Mr. Rajasundaram who is a registered voter at Bel Ombre since 1999. His former mother language is Tamil which he can read and write. He explained what the Tamil Community is and where people who speak the Tamil language originate from. He was shown the letter sent to those from the Tamil Community where he was asked to identify and compare the translated Tamil with the English version. Mr. Ramkalawan had made promises to the Tamil Community and inquired of his impression when reading the letter. The witness stated that in his opinion, this was a manifesto of a political party and that the Tamil Community was being considered and that the document was requesting that the Tamil Community vote for Mr. Ramkalawan and that there were a lot of promises that were made in the letter. The witness stated that he knew many Tamil voters and gave a few names. (paragraph 268 of the judgment)

 

The Attorney General read section 51 (3)(b) of the Act in relation to illegal practices, he asked the witness whether the letter was an offer which was illegal according to the law which Mr. Rajasundaram agreed. Further Mr. Rajasundaram agreed that Mr. Ramkalawan was inducing the Tamil Community to vote for him and in return for a favour. (paragraph 269 of the judgment)

 

Mr. Georges questioned the witness on the Tamil community, the witness stated that the community is not a person but a community. Further, he stated that there was not a specific person who was promised a post as a minister or Principal Secretary and the letter was not personalised. It was agreed that there was no signature on the letter. Mr. Rajasundaram stated that he received the letter between the first and second round of elections despite the letter being dated 9thDecember 2015. (paragraph 270 of the judgment)” [emphasis added by me]

 

  1. The translated contents of the leaflet produced as Exhibit P15 at the hearing and an extract of which is referred to at paragraph 473 of the judgment as set out at paragraph 4 above, is set out below verbatim:

 

  •  

 

There is a strong rumour that I will send all Tamil people out of this country and it is a wrong message and I completely deny as rumour.

My ancestors hail from Indian origin in Mauritius.

My grandfather hailed from the State of Uttara Pradesh in India who migrated and settled in Seychelles.

While I was a religious preacher and as an opposition leader I have participated in all wedding ceremonies, birthday functions and funerals of all Tamil origin and I participated with my full heart; I have prayed God with my full heart and Blessed all

I merge myself and live together with Indians and Tamils

If all of you join together and make me as President,

I shall declare Deepavali as Government holiday

Those who are eligible from Tamil and Indian origins will be suitably placed positions in my cabinet; principal secretaries

To flourish all trades of trading community, my Government shall do the necessary and I rule accordingly.

All suitable consultations shall be made and resolve those stumbling blocks amongst small traders

My Government shall find a solution to VAT very soon

Those of you brothers who are afraid of this party in power since last 38 years need to join together now and support my arm; I will be one amongst you when I rule this country.

If I come to power, suitable tax concession arrangements shall be made for those people whose income remain less than Rupees 10,000.00

Laws of GOP and Immigration will be simplified

My government shall ensure that Seychelles Rupees is not devalued.

My Government shall take suitable and necessary steps to develop the religions, language and race of all Indians and Tamils;

A time slot will be allocated to Tamils in Television and Radio (video and audio)

While recognizing those long serving Indians and Tamils in Government service, I shall streamline the Ministry of Health and Ministry of Education;

If we come to power, our Government shall not disturb those private employers in employment sector and never disturb at any time;

To improve the economy of Seychelles (country) we shall do the entire necessary infrastructure.

The above are not just words with decorations I request all of you to support me and other parties who join me and I humbly request you to do so.

You should also be instrumental for this country to have a good rule flourishing like a flower

 

SUPPORT RAMKALAWAN AND MAKE HIM VICTORIOUS TO HAVE STATE OF LORD RAM IN THE SEYCHELLES.”

 

  1. It is of importance to note the cross-examination of the Appellant by Counsel for the Second Respondent in regard to the contents of P15, which I have decided to record in part, but verbatim; in order to understand whether the Appellant had committed an illegal practice taking also into consideration the provisions of section 45(4) of the Elections Act, which is referred to at paragraph 8 below.

 

“Q. Mr. Ramkalawan if I may take you to the part where you said that those who are eligible from the Tamil and the Indian origins would be suitably placed positions in my cabinet and Principal Secretaries, what were you offering to the Tamil community there?

 

A. Well I was not offering anything in particular to the tamil or people of Indian origin, What I was basically saying is if there are people of Tamil and Indian origin who are eligible and who are suitable qualified they could very well just like anybody else be part of Government. They could be given ministerial positions or other positions in government. And if there was no one whom I found eligible that person would not be.

 

Q. Why did you see it necessary to address the community and to tell them that people from their community could be placed in your cabinet or could be given positions as principal secretaries?

 

A. Well, this is something that I had already expounded on during the campaign. I had already presented myself as somebody who was open that there would be no restriction. Mr. Amed Afif for example who is a Muslim had already been named as the Minister of Finance in meeting, so basically I was saying this would be a government where there would be no discrimination and furthermore it was also very important for me to write to the Tamil community because there had been this notion that Ramkalawan and the SNP were xenophobes and that they hated foreigners, and given that the Tamil community is a big community that votes I thought it was my duty as a Politician campaigning to also seek their vote.

 

Q. Mr. Ramkalawan I put it to you that what you were doing, you were inducing the voters from the Tamil community to vote for you telling them that in return you would be given posts in your government, ministerial and principal secretarial post to members of the Tamil community.

 

  1.  

 

Q. Mr. Ramkalawan with all due respect I am not insinuating that, what I am saying is that you were trying to induce these people to vote for you by promising, making promises of ministerial posts in your government to members of that community.

 

A. My Lords, election is about promises, so if I make a promise to the Tamil community is it not the same as making a promise to the elderly? Is it not the same as making a promise to young people? Is not the same as making other promises? This is what elections are all about…….

 

Q. So you agree with me that you were inducing these people to vote for you on the promise of offering ministerial posts and principal secretarial post in your government to members of their community?

 

A. So what? I mean this is my answer my Lords”

 

  1. Section 51(3)(b) of the Elections Act (Cap 68A); under which the Constitutional Court  had made a finding that the Petitioner had committed an illegal practice; states as follows:

 

  •  

 

directly or indirectly, by that person or by any other person on that person’s behalf, gives or procures or agrees to give or procure or to endeavour to procure, any office, place or employment to or for a voter, or to or for any person, in order to induce the voter to vote or refrain from voting, or corruptly does any such act aforesaid on account of the voter having voted or refrained from voting at an election;”

 

  1. The part that is relevant to this case in section 45 of the Elections Act (Cap 68A) states as follows:

 

  •  

 

  1. That an act or omission of a candidate or the agent of a candidate or any other person, which, but for this section, would be an illegal practice under this Act, has been done or made in good faith through inadvertence or accidental miscalculation or some other reasonable cause of a like nature; or

 

  1. That upon taking into account all the relevant circumstances it would be just that the candidate, agent of the candidate or the other person should not be subject to any of the consequences under this Act for such act or omission,

the Court may make an order allowing the act or omission, which would otherwise be an illegal practice under this Act, to be an exception to this Act and the candidate, agent or other person shall not be subject to the consequences under this Act in respect of the act or omission and the result obtained by the candidate shall not, by reason only of that act or omission, be declared to be void.”

 

  1. Section 47 of the Elections Act (Cap 68A) states as follows:

 

“(1) At the conclusion of the trial of an election petition, the Constitutional Court shall report in writing to the Electoral Commission –

 

  1. Whether an illegal practice has been proved to have been committed by a candidate or an agent of the candidate and the nature of the practice;
  2. The names and descriptions of all persons who have been proved at the trial to have been guilty of an illegal practice.

(2) Before making any report under subsection (1)(b) in respect of a person who is not a party to an election petition the Constitutional Court shall give the person an opportunity to be heard and to call evidence to show why the person should not be reported.

 

(3) When the Constitutional Court reports that an illegal practice has been committed by a person, the person is disqualified for a period of five years from the date of the report from being registered as a voter and from voting at an election or a referendum under this Act.

 

(4) The Electoral Commission shall cause the name of the person reported under subsection (1) to be removed from the register of voters of the electoral area where the person is registered as a voter.”         

 

  1. It is clear that the learned Judges of the Constitutional Court had made a finding against the Appellant under section 51(3)(b) of the Elections Act,  solely on the basis of the promise to voters from the Tamil community in Seychelles that “Those who are eligible from Tamil and Indian origins will be suitably placed positions in my cabinet; principal secretaries”, so as to induce them to vote for him or refrain from voting for the Second Respondent, as set out in the leaflet referred to at paragraph 6 above. It was ‘this’ statement according to the learned Judges that “was contrary to section 51(3)(b) of the Elections Act”. Even the cross-examination of the Appellant by Counsel for the Second Respondent in relation to P15 had been restricted to the issue of ministerial appointments and appointments of principal secretaries. Also the examination-in-chief of the Second Respondent’s witness Mr. S Rajasundaram had been only on the issue of ministerial appointments. Section 51(3)(b) referred to at paragraph 8 above makes reference only to giving or procuring or agreeing to give or procure or to endeavouring to procure, any office, place or employment. Thus whatever other statements made in the leaflet have not been treated, and in my view correctly, as amounting to illegal practices by the learned Judges of the Constitutional Court. This is for the reason that none of those statements come within the purview of illegal practices in section 51(3) (a) to (q) of the Elections Act.

 

  1. It is therefore necessary to ascertain what was the basis of for the finding of the Constitutional Court against the Appellant under section 51(3)(b) of the Elections Act. The reasoning is spelt out in the judgment: “Even if he was not intending to contravene the law, we view such acts especially by the leader of a political party to be reprehensible and irresponsible. We were particularly dismayed by his nonchalance and levity when challenged with the evidence, which he admitted.”

 

  1. The following elements had necessarily to be established before making a finding against the Appellant under section 51(3)(b), in relation to the facts of this case, namely:

 

  1. That the Appellant,
  2. corruptly,
  3. agreed to give or procure or endeavoured to  procure,
  4. any office or employment,
  5. to a voter, or to or for any person,
  6. in order to induce the voter to vote.

 

  1.  In Barrow-in Furness, 4 O.M & H77, it was held that “there can be no corrupt practice without a corrupt intention.” In Halsbury’s laws of England, 4th Ed, paragraph 684, foot note 11, the word ‘corruptly’ has been defined as: “It imports  intention, Wallingford case (1869) 1 O’M & H 57. It does not mean wickedly, immorally or dishonestly of that sort, Bewdly case (1869) 1 O’M & H 16, but doing something knowing that it is wrong, Bradford case No 2 (1869) 1 O’M & H 37, and doing it with the object and intention of doing that thing which the Statute intended to forbid, Norfolk, Northern Division case (1869) 1 O’M & H 236”. By stating in their judgment that “Even if he was not intending to contravene the law,” the learned Judges of the Constitutional Court had erroneously omitted to consider one of the main elements of the offence, namely, ‘corruptly’, the mens rea of the offence. Further in stating that they doubted whether the Appellant intended to contravene the law, the learned Judges of the Constitutional Court had contradicted their own statement at paragraph 425 of the judgment: “The elements of the illegal practice seem to include some mens rea in that the candidate……must have knowledge of the illegal practice.”.  It is my view that it is not a question of “seeming to include some mens rea” but positive proof of it.

 

  1.  If the elements of section 51(3)(b) as itemized above are proved, a person commits the offence, regardless whether he is a leader of a political party or not. The fact that he is a leader of a political party does not in any way prove the offence save the fact that it may be considered in relation to the penalty to be imposed. Again the “nonchalance and levity when challenged with the evidence, which he (Appellant) admitted” is not an element of the offence and cannot be a basis for a finding that the Appellant had committed an illegal practice.

 

  1. I have tried to research on cases similar to the facts of this case where a promise had been extended to members of a particular community in order to induce them to vote and have come across the Mauritian case of Ringadoo N R D V Jugnauth AK, 2007 SCJ 80, Record No. 90234 which has a semblance of similarity. In that case Jugnauth, who was seeking re-election, had falsely made a statement to Muslim members of his constituency, four days before the poll, that the Government, of which he was a Minister at that time, had given free of charge a plot of land of 2 arpents adjoining Circonstance Cemetry with a view to providing additional space for the Muslim section of the cemetery, in order to induce them to vote for him. The Supreme Court of Mauritius held in that case: The statement of the respondent, some four days before the poll, was no doubt misleading. Such misrepresentation could not have been inadvertently but which we consider was done with a corrupt motive as we can safely and reasonably infer having regards to all the prevailing circumstances........The misleading statement of the respondent constitutes nothing more than a corrupt practice of bribery to mislead and to influence the Muslim voters of constituency no.8, which constitute 10% of the voters, to vote for his party. It was an attempt to gratify the Muslim voters by inducing them to believe that the Government had donated land worth Rs 2 m for extension of the Muslim cemetery, when that was not the case.” Thus it is the falsity of the statement, which was a misrepresentation of facts and which was misleading the voters, that was considered as amounting to a corrupt motive in this case. Further there were no qualifications added to that statement nor was the donation of land subjected to any conditions. Also this was a promise that would have benefitted all the Muslim members of constituency no 8.

 

  1. In the case before us there was no allegation from the Second Respondent that the statement “Those who are ‘eligible’ from Tamil and Indian origins will be suitably placed positions in my cabinet; principal secretaries”; was false, misleading or a misrepresentation or was not meant to be fulfilled by the Appellant. In fact it had been the Appellant’s testimony before the Court: “so basically I was saying this would be a government where there would be no discrimination”.

 

  1. The words: “agreed to give or procure or endeavoured to procure....any office or employment” in section 51(3)(b) necessarily connotes a definitive offer of office or employment and not one to which the Promissor has added a qualification, namely “those who are eligible”. Further it is something that should be within the sole competence of the Promissor to give and not one such which would need the approval of another person, body or authority. In the case of appointment of Ministers, the President has to, in view of the provisions of article 69(2) of the Constitution; obtain the approval of a majority of the members of the National Assembly. 

 

  1. In my view it was mandatory for the Constitutional Court, even if they were of the view that an illegal practice had been committed by the Appellant; in view of the provisions in section 45(4) of the Elections Act, to consider ex proprio motu, whether such act had been done or made in good faith through inadvertence or accidental miscalculation or some other reasonable cause of a like nature; or that upon taking into account all the relevant circumstances it would be just that the Appellant was not disenfranchised. Counsel for the 2nd Respondent had conceded to this in his Skeleton Heads of Argument at 2.6 when he said: “It is clear from a reading of section 47(1), that the Constitutional Court has an obligation, subject to section 45(4) of the Act, to make the report in terms of the said section 47(1)”. Thus Counsel’s argument at 4.4 that “Furthermore, both in his written submissions and closing address, Mr. George did not raise argument that could have rendered section 45(4) applicable in respect of the illegal practice committed by the Appellant”; becomes meaningless. A reading of the judgment shows that the Constitutional Court had not considered any of the matters set out in section 45(4) of the Elections Act. It is clear that the Constitutional Court had not considered the following:

 

  1. The reason given by the Appellant for making the statement, namely that “There is a strong rumour that I will send all Tamil people out of this country and it is a wrong message and I completely deny as rumour” and again “....it was also very important for me to write to the Tamil community because there had been this notion that Ramkalawan and the SNP were xenophobes and that they hated foreigners,...” It was incumbent upon the Court to assess the testimony of the Appellant in this regard, especially because it had not been challenged by any of the Respondents, and give their reasons for accepting or rejecting the testimony of the Appellant.

 

  1. That according to article 69(2) of the Constitution, the appointment of Ministers is subject to the approval of a majority of the members of the National Assembly. This had to be considered in the light of the political broadcast attributed to Dr. Herminie, the Speaker of the National Assembly as referred to at paragraph 444 of the judgment, that if the Appellant were to win the elections there might be a risk of his (reference here is to the Appellant) Ministers, not being appointed as the National Assembly were filled with members of the Second Respondent’s party; and the pronouncement of the Constitutional Court itself at paragraph 446 that Dr. Herminie’s remarks, correctly stated, the consequences of the law, should the Appellant have been elected.

 

  1. That all that the Appellant had stated was “Those who are eligible from Tamil and Indian origins will be suitably placed positions in my cabinet; principal secretaries”.

 

  1. That none of the other statements in P 15 referred to at paragraph 5 above, come within the purview of illegal practices in section 51(3) (a) to (q) of the Elections Act.

 

  1. Constitutional Court’s own statement at paragraph 474 of the judgment referred to at paragraph 4 above, that the acts of the Petitioner had not affected the results of the elections in any way.

 

  1. The pronouncement by the Constitutional Court, at paragraph 469 of the judgment, that the announcement of the Government to pay all Seychellois employees, of the Indian Ocean Tuna Limited (a company in which the Government is a shareholder), earning less than SR 15,000 monthly, a thirteenth month incentive salary, just before the second round of elections, in the context of an election year amounted to ‘electioneering’. It would be in my view contradictory to treat that as ‘electioneering’ and the statement of the Petitioner to place those eligible Tamil and Indian origin people in suitably placed positions as an ‘illegal practice’.

 

  1.  I am also of the view that the making of the statement “Those who are eligible from Tamil and Indian origins will be suitably placed positions in my cabinet; principal secretaries”, has been addressed to a community at large, with qualifications attached to it. According to the Second Respondent’s witness Mr. S. Rajasundaram the promise had been to the world at large and does not personalise anyone. In my view this statement in P15 by a Presidential candidate, does not certainly amount to an illegal practice. It had been the position of the Appellant that Tamils and people of Indian origin are also Seychellois and should not be discriminated against and left out of Government. I cannot lose sight of the fact that the Preamble to the Constitution states:

 

  •  

 

RECOGNISING the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation for freedom, justice, welfare, fraternity, peace and unity:

 

REAFFIRMING that these rights include the rights of the individual to life, liberty and the pursuit of happiness free from all types of discrimination;

 

EXERCISING our natural and inalienable right to a framework of Government which shall secure for ourselves and posterity the blessings......equality of opportunity;”

 

It is in that context that the Appellant’s testimony before the Court in cross examination, that he will not discriminate and leave Seychellois of Indian or Tamil origin out of government “and that everybody should have a place in this country”, should be considered.

 

  1. At paragraph 474 of the judgment the learned Judges of the Constitutional Court had stated: “Even if he was not intending to contravene the law, we view such acts especially by the leader of a political party to be reprehensible and irresponsible.” At the very outset I am at a loss to understand how the making of the statement “Those who are eligible from Tamil and Indian origins will be suitably placed positions in my cabinet; principal secretaries”, can amount to “acts” and be reprehensible and irresponsible. It appears that the learned Judges of the Constitutional Court have taken into consideration other extraneous matters in reaching their conclusion.

 

  1. The learned Judges of the Constitutional Court had also stated at paragraph 474 of the judgment: “We were particularly dismayed by his nonchalance and levity when challenged with the evidence, which he admitted.” The Learned Judge’s comment about the Appellant’s ‘nonchalance and levity’ when challenged with the evidence in regard to the promise of offering ministerial posts, is due to his response “So what?”; as argued by Counsel for the Appellant at the hearing and found in the record of proceedings under cross-examination by Counsel for the Second Respondent and referred to at paragraph 7 above. A report under section 47 of the Elections Act to have the Appellant’s name struck of the register of voters should be made on a proper assessment of the provisions of section 51(3)(b) of the Elections Act and the contested statement and not on the basis of the “nonchalance and levity” of the Appellant when challenged with the evidence at the trial. If the Appellant’s demeanour bordered on contempt he could have been separately dealt with for that. The Appellant’s “nonchalance and levity” may also be understood to mean that he genuinely believed that the statement in the leaflet that “Those who are eligible from Tamil and Indian origins will be suitably placed positions in my cabinet; principal secretaries” did not amount to an illegal practice and one that he as a Presidential candidate, could validly make. This goes to show the lack of a ‘corrupt intention’ on the part of the Appellant, which is an essential element of the offence under section 51(3)(b). As stated at paragraph 14 above in order to prove a corrupt intention it must be shown that the Appellant had “done something knowing that it is wrong” or done it “with the object and intention of doing that thing which the statute intended to forbid”. This also brings in the element of “good faith” referred to in section 45(4)(a) of the Elections Act and as set out in paragraph 9 above. ‘Good faith’ is an abstract and comprehensive term that encompasses a sincere belief or motive without any malice or the desire to defraud others.

 

  1. The Elections Act provides for two instances when a name of a person shall be removed from the register of voters, namely under section 47(4) when the Constitutional Court reports that an illegal practice has been committed at the conclusion of a trial of an election petition and where a person is convicted of committing an illegal practice in accordance with the provisions of section 52(2). The learned Judges of the Constitutional Court had been acting under the provisions of section 47(1)(b) of the Elections Act referred to at  paragraph 10 above, when they said: “We are obliged to make a report on this matter to the Electoral Commission in terms of striking his name off the register of voters”. Section 47(1)(b) makes reference to a person who has been proved at the trial of an Election Petition “to have been guilty of an illegal practice” to be reported to the Electoral Commission. The Constitutional Court had adopted the civil standard of proof, which is proof on a balance of probabilities, in coming to the finding that the Appellant is guilty of an illegal practice, as evidenced by paragraph 412 of the judgment. It therefore becomes necessary to examine the standard of proof necessary before making a decision to report a person to the Electoral Commission on the basis that an illegal practice has been proved to be committed.

 

  1. The learned Judges of the Constitutional Court have correctly raised this issue at paragraph 376 of their judgment as follows: “However, there has been much jurisprudential and statutory development with regard to quasi-criminal cases (which are cases where the Court is required to make a finding, in the course of a civil trial, on an act which also constitutes a criminal act under the same or another law)” and given due consideration to it in paragraphs 387 – 412 of their judgment.

 

  1. It will be useful to make reference to certain passages of the judgment of the Constitutional Court as much research has gone into it.

 

“[387] What weight should the court put on the material facts placed before it? The issue is problematic arising from the nature of evidence in election cases and the vocabulary used in the Act. Sections 44 (7) (b) and 47 (1) (a) and (b) contain the words illegal practice and guilty of an illegal practice.

 

[388] The use of such phrases usually associated with criminal trials in the provisions above is at odds with section 45 (1) of the Act which provides:

 

The trial of an Election Petition, shall, subject to this Act, be held in the same manner as a trial before the Supreme Court in its original civil jurisdiction. (Emphasis ours)

 

[389]More problematic is the fact that the Election Petition brought by the Petitioner alleges both non-compliance with the Act (section 44(7) (a)) and illegal practices (section 47((b)). While it is evident that the standard of proof in relation to the former should clearly be that of civil cases, in the case of the latter the standard may be that of criminal cases.

 

[390] Hence, while section 45(1) provides that election Petitions are private legal processes, sections 44 and 47 import a criminal element in terms of a finding of illegal practice by a particular person. It is for this reason that the Respondents’ Counsel have argued that considering the public interest in identifying and remedying electoral malpractice, the civil standard of proof may not be appropriate. In the case of Ogilvy Berlouis  and anor v Holden Pierre and ors (1974)SLR 221, although it was argued that the trial of an Election Petition was conducted in the same way as that of a civil trial, Souyave CJ was of the view that a higher standard of proof was required. Relying on Hansard he stated that in such cases the court had to “be satisfied beyond reasonable doubt or, in other words, be fully satisfied that the election is void before upsetting it.”

 

[393] Having reviewed the above authorities in the case of In Re B (Children) (Fc) [2008] UKHL 35, Lord Hoffmann stated:

 

I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not. I do not intend to disapprove any of the cases in what I have called the first category, but I agree with the observation of Lord Steyn in McCann’s case (at 812) that clarity would be greatly enhanced if the courts said simply that although the proceedings were civil, the nature of the particular issue involved made it appropriate to apply the criminal standard.

 

[397] In the UK the issue was raised in R v Rowe ex parte Mainwaring and Others [1992] 1 WLR 1059 and the Court found that it must apply the criminal standard of proof, namely proof beyond reasonable doubt. This was reaffirmed in Simmons v Khan [2008] EWHC B4 (QB) in respect of the standard of proof against the Respondent and his agents for the corrupt or illegal practices and for general corruption but the civil standard of proof was applied to the question of whether the general corruption may reasonably be supposed to have affected the result of the election.

 

  • 398]Lately, in Erlam &Ors v Rahman & Anor (The Tower Hamlets case supra), the Court stated:

 

There was no controversy at the hearing about the standard of proof the court must apply to the charges of corrupt and illegal practices. It is settled law that the court must apply the criminal standard of proof, namely proof beyond reasonable doubt. This was definitively decided by the Court of Appeal in R v Rowe, ex parte Mainwaring, a decision binding on this court.(paragraph 47)

 

It must be noted that in the UK as in the Seychelles at the end of an Election Petition alleging corrupt or illegal practices, the court decides whether a person is guilty of such practices. It is only in terms of these practices that the criminal burden of proof applies.”

 

  1. Having made references to several other authorities from the UK, Mauritius, Ghana, Zambia, Uganda and Kenya; the learned Judges of the Constitutional Court have in their judgment also considered the following matters:

 

“[405] However, elections in Seychelles are a civil matter, even if there are some findings of criminal activity involved. As we have pointed out the Act does contain criminal law phraseology but the provisions also envisage two distinct processes- one in terms of voiding elections and the other in terms of reporting persons to the Electoral Commission for committing illegal practices with the possibility of the Electoral Commission striking the person off the electoral register. In the case of the latter, such a report by the Court may not be made until those persons are given an opportunity to be heard and to have evidence called to show why they should not be reported. We are not at this stage engaged in the latter process although we are obliged by the provisions of the Act to undertake this exercise.

 

[406] The Act also, separately to the Election Petition process, provides for offences which may be prosecuted by the Attorney General with penalties of up to three years imprisonment and fines of up to SR20,000.

 

  1.  

 

  1. At paragraph 412 of the judgment having considered the standard of proof at length the learned Judges of the Constitutional Court had come to the following conclusion:

 

“In our view this raises important questions about the threshold of proof that should be applied in presidential election disputes and how it should be discharged. We have ‘given anxious consideration’ to these issues and have come to the conclusion that given all the different considerations above it is the civil standard of proof, that is proof on a balance of probabilities, that should be applied when considering whether an election is void by reason of non-compliance with the provisions of the Act and, or the commission of illegal practices.” (emphasis added by me)

 

  1. In my view the learned Judges of the Constitutional Court appear to have vacillated in the course of their reasoning as to the standard of proof to be applied in relation to the commission of illegal practices, especially before making a report under section 47 of the Elections Act. This is to be seen in the underlined portions of their judgment at paragraphs 389, 390, 398, 405 and 407 referred to above. The adoption of the civil standard of proof in coming to a finding against the Appellant was erroneous, and thus the finding that the Appellant had been proved at the trial to have been guilty of an illegal practice becomes faulty. It is my firm belief that even on the application of the civil standard of proof, which is proof on a balance of probabilities, a case against the Appellant, has not been proved under section 47 of the Elections Act.

 

  1. The learned Judges of the Constitutional Court had fallen into this error as a result of a misreading of section 45 of the Elections Act, which they had quoted at paragraph 379 of the judgment, and which is to the effect: “The trial of an Election Petition, shall subject to this Act, be held in the same manner as a trial before the Supreme Court in its original civil jurisdiction.Their misreading of section 45 have led them to conclude at paragraph 380 of the judgment “Since the Act states that it is the civil rules of evidence that applies in cases involving Election Petitions...”. Firstly nowhere in the Elections Act is it stated that “it is the civil rules of evidence that applies”. In saying what they said at paragraph 380 referred to above they have also contradicted their earlier statement at paragraph 375 of the judgment, i.e. “Unfortunately, neither the Constitution nor its attendant legislation provide for these evidential processes (burden and standard of proof referred to in paragraph 375) in Election Petitions”. It is my view; ‘jurisdiction’ and ‘rules of evidence’ are two completely different matters. Jurisdiction is given by law to a court to try cases and rule on legal matters within a particular geographic area and/or over certain types of legal cases. According to Halsbury’s Laws of England 4th Edition Vol. 10- Paragraph 715 “ ‘Jurisdiction’ is the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision”. ‘Rules of evidence’ govern how courts evaluate the various forms of proof at a trial. The Seychelles Code of Civil Procedure (Cap 213) which sets out the procedure pertaining to trials in civil cases does not contain any provisions pertaining to the standard of proof in civil cases. In the case of In Re B (Children) (Fc) [2008] UKHL 35,  Lord Hoffmann stated: “I agree with the observation of Lord Steyn in McCann’s case (at 812) that clarity would be greatly enhanced if the courts said simply that although the proceedings were civil, the nature of the particular issue involved made it appropriate to apply the criminal standard.” This goes to show that the trial of an Election Petition although held in the same manner as a trial before the Supreme Court in its original civil jurisdiction, it is the criminal standard of proof that should be applied when making a finding under section 47(1) of the Elections Act.

 

  1. The learned Judges of the Constitutional Court although concerned that “whilst persons found to have been involved in electoral malpractice may face serious consequences, including being disqualified from participation in future elections and/or prosecution and imprisonment” have failed to give due regard to the fact that making a report under section 47 of the Elections Act would necessarily lead to the deprivement of a fundamental right of the Appellant that is enshrined and entrenched in article 24(1) of  the Constitution, namely,  “to be registered as a voter for the purpose of and to vote……at public elections…….and to be elected to public office”. Fundamental rights are so sacrosanct under the Seychellois Charter of Fundamental Human Rights and Freedoms, that the Constitution provides that when a person invokes the jurisdiction of the Constitutional Court claiming that a provision of the Charter has been or is likely to be contravened in relation to him and establishes a prima facie case; the burden of proving that there has not been a contravention or risk of contravention shall, where the allegation is against the State, be on the State. I am firmly of the view that the consequences of a report under section 47 of the Elections Act, which leads to the deprivement of a fundamental right of a person, is another reason for applying the higher standard of proof, namely one ‘beyond a reasonable doubt’. I do not find any reference been made to article 24 in the judgment.

 

  1.   I am of the view that disqualification of a person on the basis of a report under section 47 or on the basis of a conviction for an offence of illegal practice of the Elections Act is a permitted derogation of the right to vote and is in accordance with article 24(2) of the Constitution because the Elections Act meets the yard stick set out in article 24(2), namely, the disqualification is in accordance with a “a law necessary in a democratic society”. It is this same principle, that disqualification under section 47(1) of the Elections Act should be ‘only where it is  necessary’; that has been somewhat incorporated into section 45(4) of the Elections Act by stating that where the Constitutional Court at a trial of an Election Petition finds that an  act or omission would be an illegal practice; yet, if it appears to the Court that such act or omission had “been done or made in good faith through inadvertence or accidental miscalculation or some other reasonable cause of a like nature; or that upon taking into account all the relevant circumstances it would be just that... the person” is not subject to a disqualification.

 

  1. The learned Judges of the Constitutional Court had erred in saying at paragraph 407 of their judgment: “……it is not up to the Constitutional Court to ‘convict persons’ or ‘impose any criminal penalties’ at this stage. We may only report.” It is my view that when a report is made under section 47(1) of the Elections Act (see paragraph 10 above); “at the conclusion of the trial of an election petition” a person stands convicted, since he has “been proved at the trial to have been guilty of an illegal practice”. ‘Illegal practice is one of the offences set out in section 51(3)(b) read with section 51(1)(l)of the Elections Act. The word ‘conviction’ has been defined in Osborn’s Concise Law Dictionary (9th edition) as “The finding of a person guilty of an offence after trial” and in Black’s Law Dictionary (9th edition) as “The act or process of judicially finding someone guilty of a crime; the state of having been proved guilty.” Further section 47(3) states: “When the Constitutional Court reports that an illegal practice has been committed by a person, the person is disqualified for a period of five years from the date of the report from being registered as a voter and from voting at an election…” Section 47(4) states: “The Electoral Commission shall cause the name of the person reported under subsection (1) to be removed from the register of voters of the electoral area where the person is registered as a voter.” Disqualification from voting is set out as a penalty in section 52(2) of the Elections Act. The Constitutional Court erred when they said at paragraph 405 of the judgment referred to at paragraph 26 above, that the Elections Act contained provisions for “reporting persons to the Electoral Commission for committing illegal practices with the possibility of the Electoral Commission striking the person off the electoral register”, because no discretion is given by the Elections Act to the Electoral Commission in striking off the name of a person from the electoral register in view of the provisions of section 47(4) of the Act referred to earlier. Had the Constitutional Court not erred in regard to these matters they would have concluded that the standard of proof in an election petition should be that of the criminal standard, namely one beyond a reasonable doubt.

 

  1. Article 114(1)(b) of the Constitution states: “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 criminality.” A finding of criminality can be reached only when a person has been found guilty of a crime/offence. This becomes clear when one reads section 51(3)(b) referred to at paragraph 8 above along with section 51(1)(l) which states “A person who commits an illegal practice in connection with a Presidential Election or a National Assembly Election is guilty of an offence.” Again section 47 (1) (b) of the Elections Act referred to at paragraph 10 above make reference to “persons who have been proved at the trial to have been guilty of an illegal practice”. In the circumstances the meaning attributed to ‘guilty’ in Black’s law Dictionary, 9th Edition is applicable, namely, “responsible for a crime”. A finding of guilt against a person could be reached only when a case against such person has been proved beyond a reasonable doubt, which is the standard of proof necessarily to be adopted in a criminal case.

 

  1. It would also be erroneous to have two separate standards of proof for disqualification, namely the standard of proof of ‘beyond reasonable doubt’ under section 52(2) and a standard of proof ‘on a balance of probabilities’ under section 47 of the Elections Act. Having two separate standards of proof would not only be discriminatory of those who are dealt with under section 52(2) and section 47 of the Elections Act, but militate against the Right to Equal Protection of the Law, which is enshrined and entrenched in article 27 of the Constitution. Article 27 states: “Every person has a right to equal protection of the law including the enjoyment of the rights and freedoms set out in this charter without discrimination on any ground except as is necessary in a democratic society.”

 

  1. I would also like to comment on paragraph 525 of the judgment.

 

  • 525] Nevertheless, the Court is under a duty to report incidences of illegal practices in terms of section 47 (1) to the Electoral Commission. Our report will be based on the totality of the evidence in this case. Where persons have not had an opportunity to be heard in defence of these illegal practices they will be given an opportunity to be heard in terms of section 47(2) of the Act. The Court is however not obliged to make such report public. Moreover it would be improper to discuss the contents of this report in this judgment.” (emphasis added by me)

 

In this case the Constitutional Court has already made a finding that the Appellant had been proved at the trial to have committed and thus guilty of an illegal practice at paragraphs 473 and 474 of the judgment as referred to at paragraph 4 above after an assessment of “the totality of the evidence in this case”. As per the judgment of the Constitutional Court there was nothing more that could have been added to this finding and nothing more left to be done so far as the Appellant is concerned, save that of forwarding the judgment to the Electoral Commission for necessary action under section 47(4) of the Elections Act. The judgment is in fact the ‘Report’ and the judgment and its contents is now public knowledge. Once the Constitutional Court reports to the Electoral Commission, that an illegal practice has been committed under section 47(1) of the Elections Act the consequences set out in section 47(3) automatically flow and it is mandatory to the Electoral Commission to cause the name of the person reported to be removed from the register of voters. I also fail to understand the last two sentences of paragraph 525 as it amounts to a contravention of articles 19(8) and 19(9) of the Constitution. Article 19(8) states:

 

“......all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any court or other authority, including the announcement of the decision of the court or other authority, shall be held in public.” Article 19(9) further substantiates this when it specifies that the public cannot be excluded from “the announcement of the decision of the court”.

 

  1. As regards ground 1(a) of appeal, I am of the view that in view of the provisions of section 47 of the Elections Act referred to at paragraph 10 above there is no requirement for any party to an Election Petition to have prayed that the petitioner should be dealt with under section 47 of the Elections Act for committing an illegal practice. This is an obligation cast on the Constitutional Court taking into consideration the provisions in section 45(4) of the Elections Act as referred to at paragraph 9 above. I therefore dismiss this ground of appeal.

 

  1. As regards ground 1(b) of appeal,  I am of the view that section 47(2) of the Elections Act, which states: “Before making any report under subsection (1)(b) in respect of a person who is not a party to an election petition the Constitutional Court shall give the person an opportunity to be heard and to call evidence to show why the person should not be reported”; (emphasis added by me); cannot be interpreted to mean that in the case of a party to an election petition; there is no need for a warning to such party that he risked being penalised for having committed an illegal practice and giving him an opportunity of being heard thereon.

 

  1. The principle of interpretation Expressio Unis Est Exclusio Alterius’, namely, the express mention of one person or thing implies the exclusion of other persons or things; “is not a rule of law but a rule of construction. It is a product of logic and common-sense and ought to be applied with care and caution so that a rational interpretation is produced…..” (Ishar Singh & Sons V Market Committee, Tarn Taran 59 PLR 631). It was held in Calcutta Tpt Society V State Punjab AIR 1962 Punj 94 that “The rule of exclusion, as is well known, is merely an auxiliary rule of construction adopted for the purpose of ascertaining the intention of the law-giver. It is neither conclusive nor of universal application and is to be applied with great caution. It may be applied only when in the natural association of ideas, the contrast between what is provided and what is left out leads to an inference that the latter was intended to be excluded; it may accordingly be held inapplicable if there exists a plausible reason for not including what is left out.” In Colquhoun V Brooks (1888) 12 QBD 52, Lopes LJ in the Court of Appeal said: “The maxim expression est unis exclusion alterius is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusion is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application, having regard to the subject matter to which it is to be applied, leads to inconsistency or injustice. (emphasis added by me) I would also add that the specific reference in section 47(2), only to ‘a person who is not a party’, may be ‘ex abundant cautela’.

 

  1. It is my view that section 47 of the Elections Act has to be considered as a penal provision when read along with sections 51(3)(b), 51(1)(l) and 52(2) of the said Act. This brings into focus another accepted canon of interpretation, namely that a penal provision should be construed in the case of doubt for the benefit of the defendant.

 

  1. Counsel for the Second Respondent in his Skeleton Heads of Arguments has argued in relation to ground 1(b) of the appeal that:

 

 

  1. the Appellant had been “represented by two of the most competent and able lawyers in our jurisdiction and he ought to have been advised by his lawyers of the risks of being penalized for having committed an illegal practice,

 

  1. as a matter of fact in terms of section 47(1), the Appellant ought to have been aware of such a risk. The maxim that ignorance of the law is no defence (ignorantia juris non excusat) is very much applicable in the present case, and

 

  1. the Appellant chose not to counter the allegation while testifying under cross-examination and re-examination, or by bringing in evidence prior to closing his case.

 

  1. If the Counsel’s argument in relation to the Appellant having been represented by competent lawyers is to be regarded as having any substance, then a need for appeal would not arise in most cases where competent lawyers have appeared before the original court.

 

  1.  In my view the issue in this case was not one of ignorance of the law, but ignorance of the Appellant, that the Constitutional Court would, at the conclusion of the trial, decide to act against him under section 47(1) of the Elections Act, without any notice to him and without taking into consideration section 45(4) of the Elections Act and his evidence. It is clear from pages 1502 and 1503 of the Court of Appeal record that the learned Judges of the Constitutional Court even at the conclusion of the submissions of all Counsel at the end of the hearing of the election petition had not given any indication that they were going to act under section 47(1)(b) of the Elections Act. In fact it had been to the contrary when one examines the dialogue between the Bench and the Bar.

 

“Court....: If the Court were to find there were illegal practices of both sides how would you like to treat that?

 

Mr. Georges: ...It is not the petitioner’s intention or desire that any illegal practices should be referred to the electoral commission with a view to action being taken. That is not what we set out to do......

 

Court....: My question is as to the ‘result of the election’.”

 

In making this pronouncement the Court had clearly indicated that the issue of illegal practice would be considered only so far as the result and voiding the election under section 44 (7) of the Elections Act and not to disqualify any candidate under section 47(1)(b) of the Elections Act. It is therefore no surprise that Counsel for the Appellant argued before us at the hearing that the disqualification of the Appellant had “hit him as a meteorite”.

 

  1.  This is in my view an ignorance of a fact and not law. Further the doctrine ‘ignorantia juris non excusat’ comes into application when a person is charged with an offence. In this case it is the position of the Appellant that the Court erred in making the finding against the Appellant, “given that it had not been the subject of any plea by the Respondents”. In Black’s Law Dictionary, 9th edition the doctrine ‘ignorantia juris non excusat’ is defined as follows:“Lack of knowledge about a legal requirement or prohibition is never an excuse to a criminal charge.”

 

  1. In the application of this doctrine of ‘ignorantia juris non excusat’ a court has to be mindful of the distinction between crimes which are ‘malum in se’ i.e. self-evident wrongs (for example murder, rape and robbery) and ‘malum prohibitum’, i.e. crimes that are not inherently wrong but crimes because they are prohibited by law. It is my view that the doctrine that ignorance of the law is no excuse works only when a person has knowledge of the crime he commits and has the necessary mens rea, and in this case, a corrupt intention. These are matters the Constitutional Court had to necessarily take into consideration before coming to a finding against the Appellant in view of the provisions of section 45(4) of the Elections Act.

 

  1.  In the case of McCrory V Hendron and another (1993) Northern Ireland Law Reports (NI) 177 it was said: “However, the 1983 Act, as its predecessors did, permits an election court to give relief in certain circumstances to an elected candidate and/or election agent who has been guilty of illegal practices. Some of these circumstances may amount to what the 1983 Act names as authorised excuses,...........or that the acts and omissions complained of were due to inadvertence on their part. It would seem that the wide discretion given to a court to grant relief is an acknowledgement of the burden of compliance which the technical and complex nature of some of the statutory requirements imposes. This was the view expressed by Vaughan Williams J when dealing with Corrupt and Illegal Practices Prevention Act 1883, a statute of similar pattern and provisions to the present. He said in Stepney Case, Rashmere V Isaacson (1892) day 116 at 124: It is quite true that the Act lays down most stringent rules as to the conduct of candidates: it may be said that these rules go so far into detail as to make it very difficult for either the candidate or his election agent to go through an election without in some way or other transgressing against the multifarious provisions of these Acts. But the answer to this is that the Act takes every possible care by the 22nd and 23rd sections that no candidate who has tried his best to conduct his election purely and fairly shall suffer thereby. First as to illegal practices, the 23rd section enables us, in cases where we think that the illegal practice has been done through inadvertence and in good faith, to wipe out the transaction altogether, so that it shall not be considered at all when one comes to deal with the question of whether the seat is to be avoided or not”.(emphasis added by me) The exercise of discretion in my view should be much wider when it comes to the disqualification of a candidate, and more so one, who is challenging the validity of the election of the one who is elected; on the ground of illegal practices on the part of the one elected. The Constitutional Court itself had been, at paragraph 469 of the judgment, struggling as to how to deal with the issue of the promise of the thirteenth month salary incentive when they said: “Both candidates had assured them a thirteenth month salary incentive......The acts of both candidates in this context in an election year amount to electioneering.” Thus the difference between ‘electioneering’ and ‘illegal practice’ when it comes to promise of incentives and employment is a difficult one to make.

 

  1. The meaning of the word ‘inadvertence’ found in section 45(4)(a) of the Elections Act and the question whether ‘ignorance of the law’ may be “inadvertence” had been considered in the case of McCrory V Hendron (1993) NI 177 in relation to the word ‘inadvertence’ found in section 167(2) of the   Representation of the Peoples Act 1983 of Northern Ireland. In that case Kelly LJ said relying on Nichol V Fearby (1923) 1 KB 480 “In my view the word “inadvertent” may be used according to our jus et norma loquendi as indicating either a negligent act, as distinguished  from a careful act, or as indicating an unintentional, as distinguished from an intentional act. In my own view it is clear that ignorance of the law may fall within the word “inadvertence”. In Ex P Walker (1889) 22 QBD 384, the Court of Appeal held and in my view unmistakeably held, that ignorance of the law may be “inadvertence”. The same view was upheld in Finch and another V Richardson (2009) 1 WLR 1338. The Constitutional Court appears to have been of the view that the disputed statement of the Appellant was unintentional, when they said at paragraph 474 of the judgment: “Even if he was not intending to contravene the law”.           

 

  1.  It is my view that the Appellant had countered the allegation under cross-examination and the Constitutional Court had erred in failing to consider that evidence, in determining whether the Appellant had in fact committed an illegal practice under section 51(3)(b), taking into consideration section 45(4) of the Elections Act.

 

  1.  In view of the serious consequences that flow from making a Report to the Electoral Commission it was incumbent on the Constitutional Court to have put the Petitioner on notice and given him an opportunity of being heard, when he was testifying. Otherwise it would be a breach of the fundamental right enshrined and entrenched in article 19(7) of the Constitution which necessarily overrides any law and which states: “Any court or other authority required or empowered by law to determine the existence of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such determination are instituted by any person before such a court or other authority the case shall be given a fair hearing within a reasonable time.”

 

  1. In the given circumstances I am in agreement with the Appellant’s Heads of Argument when he states: “It cannot be just for a person to bring a case seeking annulment of an election and end up being the one who is sanctioned……If he has to meet a challenge, that challenge must be spelt out and the consequences pleaded.” I therefore allow ground 1(b) of appeal.

 

  1.  For the reasons enumerated in my judgment I hold with the Appellant in respect of grounds 1 (c) and 3 of appeal and allow those grounds of appeal.

 

  1. In respect of ground 2 of appeal I hold with the Appellant that the Constitutional Court erred in finding that the Appellant had committed an illegal practice contrary to section 51(3)(b) of the Elections Act, in that it failed to appreciate that the newsletter had not made any definite promise to any voter, had not been specific as to a voter or voters, and had not offered to procure any office in exchange for a vote, save the stipulation as to vote for the Appellant. Since the stipulation to vote for the Appellant read in conjunction of the promise of appointments, did not satisfy the elements of section 51(3)(b) as stated above, it is of no consequence. I therefore allow the appeal on this ground.

 

  1. I therefore allow the appeal on grounds 1(b), 1(c), 2 and 3, reverse the finding of the Constitutional Court that an illegal practice had been committed by the Appellant and quash the decision of the Constitutional Court in that regard.

 

 

 

  1. Fernando (J.A)
  2. I concur:.      ..........................                      F. Robinson (J.A)