IN THE SUPREME COURT OF SEYCHELLES
EXPARTE: Electoral Commission
First Petitioner
The Chief Registration Officer
Second Petitioner
Counsel: Samantha Aglae for Petitioners
M. TWOMEY, CJ
[1] The Petitioners move this Court on a Petition to have the Register of Voters reopened to allow for rectification of the certified Register so as to accommodate clerical errors and oversights discovered after the closure of the Register on 2nd October 2015.
[2] The said clerical errors and oversights are the following:
Five first time applicants whose names were processed but do not appear on the Register;
Eight new applicants whose names appear on the Register but are in the wrong electoral area;
Fourteen transfer applicants whose applications were processed but whose names appear on the Register but not in their transferred electoral area;
Fourteen applications to make corrections of the applicants’ surname whose applications were processed, and whose names appear on the Register but for which the corrections were not made in the Register;
Two applications to make correction of the applicants’ surnames whose corrected surnames appear on the Register but whose names appear blank on the Register; and
Two obsolete entries to be removed from the Register.
[3] The 2nd Petitioner avers that no objections were obtained in respect of these applications and letters of confirmation that such rectification had been made were sent to the applicants concerned. The mistakes and or omissions were discovered after the certified Register was closed for the purposes of the election.
[4] The Petitioners aver that those applicants will be disenfranchised as a result of the clerical mistakes and/or oversight and seek orders of the Court to allow the 2nd Petitioner to include the names of the persons affected by the mistakes on a supplementary list of voters, to allow the 2nd Petitioner to remove the obsolete entries, and to permit the 2nd Petitioner to issue a supplementary list of the Register of voters for the forthcoming Presidential Election.
[5] Section 9 of the Elections Act 1995 as amended provides:
(1) The Chief Registration Officer shall, after all claims, objections and appeals have been concluded under section 8, amend the register of voters for each electoral area accordingly and certify the registers:
Provided that the amended registers of voters under this subsection shall be certified and published on the 31st March:
Provided further that the Chief Registration Officer shall in a year in which an election is held, amend the register of voters—
(a) for each electoral area by including therein or deleting therefrom the names of
persons registered as voters or otherwise between the period from the date on
which the registers were previously certified and the date on which the notice
under section 13(1) was issued…(emphasis mine)
Section 13(1) of the Act also provides
(1) The Electoral Commission shall, by notice in the Gazette, appoint the date or dates on which a Presidential Election or a National Assembly Election shall be held under this Act.
[6] A Presidential Election in Seychelles was proclaimed on 1st October 2015 and published in the Official Gazette on 2nd October 2015, hence giving “notice to the whole world” of the forthcoming election.
[7] The sum total of these provisions establishes the fact that the petitioners were legally permitted to amend the Register between 31st March 2015 and 2nd October 2015 when notification of the Presidential Election was made to the whole world. The publication of the notification on 2nd October has essentially frozen the Register of Voters. There are no provisions either in the Act or any other Act or in the Constitution to permit the reopening of the Register once it has been frozen by the official publication of the date of elections. Moreover, there is no provision for a supplementary list of voters in the laws of Seychelles.
[8] No constitutional or legal provision is relied on by the petitioners for such application and after a careful scrutiny of the relevant law by this Court it is clear that no such provisions exist to permit such a course of action by the Petitioners.
[9] In the absence of a legal provision or a legal remedy to allow for rectification of the register after publication of notification of the election, the Petitioners have appealed to the equitable jurisdiction of this Court with which it has been endowed by section 6 of the Courts Act. Such jurisdiction would, as submitted by the Petitioners allow the court to provide a just and equitable remedy in this situation.
[10] The Petitioners have submitted two Canadian authorities, that of Ted Opitz and anor v Attorney General of Canada and anor (2012) SC55 and Hogan v Careen and anor (1993) 116 Nfld and PEIR 310 which are authorities that election results can and will be set aside for irregularities caused by not permitting eligible and qualified voters to vote or allowing ineligible voters to vote. However in Canada, provision is made for a supplementary list of voters made up of voters whose names do not appear on the official list of electors but who on the day of elections swear an oath at the polling station where they qualify to vote. There is also provision permitting the court to set aside the election result in cases where irregularities, for example, were voters are allowed to vote without an oath being recorded on their behalf and where this materially affects the result of the elections. Such provisions are not available in the laws of Seychelles and therefore the authorities cited are of no assistance in the present matter.
[11] The Court has considered the application of the Petitioners with the seriousness it deserves and has explored and weighed the competing elements in such a course of action. On the one hand, forty-one persons may be disenfranchised if it refuses to allow the reopening of the Register for the necessary rectifications to be made but on the other hand the reopening of the Register opens the floodgates to other potential changes and seriously undermines the finality and certainty of the Register of Voters prior to the Elections. The court is also mindful that this application has been made ex parte and that objections to the course of action proposed by the Petitioners may be challenged by the presidential candidates should they view the rectification as disadvantageous to their election campaigns, or by any other interested parties and further applications may result in setting aside any orders of this Court.
[12] When exercising equitable powers the court does so to mitigate the strict application of legal rules which would result in an injustice. But such equitable power is subject to the principled discretion of the court. It may not be exercised in the absence of a statute permitting such relief or a precedent establishing a right to the relief sought as is the case here. In Dudley v Dudley (1705) 24 ER 118, at 119, Lord Cowper stated:
“...this is the office of equity, to support and protect the common law from shifts and crafty contrivances against the justice of the law. Equity therefore does not destroy the law, nor create it, but assist it.”
[13] Equity is also limited as is evidently clear in its maxims. One of these maxims applicable to the present circumstances is that “equity aids the vigilant, not those who slumber on their rights.” The court cannot condone the laches of the Petitioners, specifically its lack of diligence in assuring that the Register was correctly compiled, even if the result is the disenfranchisement of a number of voters. Nor can it permit the certainty and finality of the Register of voters to be undermined especially at the 11th hour, and particularly given the specific legislative mechanism which creates a cut-off date for any amendments to the Register. It would in any case be inequitable to undermine the credibility of the presidential elections by allowing a rectification of the Register not permitted by the law and which may result in a public outcry or widespread condemnation.
[14] Moreover, the Court is cognisant of its role to interpret the law, and not to write it. The running of the Elections is a constitutional process, regulated by carefully constructed constitutional and legislative provisions. In such circumstances, the Court is hesitant to exercise its equitable jurisdiction where it would be effectively “reading in” provisions to allow for the amending of the Register in the absence of any legislative authority for such actions. There may be circumstances where it is necessary for the Court to intervene in such matters, however I remain unconvinced that these are such circumstances.
[15] There is however an avenue still open to the Petitioners even at this late hour, that is, to seek the indulgence of the presidential candidates in agreeing a supplemental list of electors, but this Court will not be part of such an agreement.
[16] For these reasons the Petition is dismissed.
Signed, dated and delivered at Ile du Port on 26th November 2015.
M. TWOMEY