22 March 2016: ELECTION PETITIONS: Summary of Proceedings by the Special Rapporteur

Day 22 – 22 March 2016, 9.00 am – Constitutional Court of Seychelles

In the matter of Wavel John Charles Ramkalawan v The Electoral Commission, James Alix Michel and the Attorney-General

The Constitutional Court is made up of the Honourable Chief Justice Twomey, Honourable Judge McKee and Honourable Judge Akiiki-Kiiza. Mr. Wavel Ramkalawan (Petitioner) was represented by Mr. Bernard Georges and Mrs Annette Georges. The Electoral Commission (First Respondent) was represented by Mrs Samantha Aglae, Mr James Michel (Second Respondent) was represented by Mr Basil Hoareau together with Mrs Laura Valabhji and Honourable Attorney-General together Mr Ananth Subramanian for the Attorney-General (Third Respondent).

Mr Georges continued to question Mr Gappy and he inquired about the Special voting station on the 18th December 2015 at Headquarters, the National Library. Mr Gappy agreed that there were 145 persons who voted on the Inner Islands Electoral Area at the Headquarters. He further agreed that there was a list that was compiled at the headquarters which was faxed to La Digue periodically and that the original list was then sent with the ballot boxes in the afternoon to La Digue. He stated, looking at the two registers, that they appeared to be similar but he cannot confirm that they are identical by looking at them briefly, further he could not identify which station the registers came from.

He was asked by Mr Georges to go the master register used on La Digue and to check whether most names had been crossed out which he verified that it was. He was then asked to check two other registers which were from the inner island electoral area received from the Electoral Commission Headquarters. He identified the registers, the one with the name ‘Justin’ was marked as A and the other a B. He was asked to check on both registers A and B if the same names were crossed off and he replied in the negative and Mr Georges suggested that the two registers were from the caller registers on La Digue. Mr Gappy stated that it was a register but he cannot say where it came from.

Mrs Aglae objected to the two unmarked registers becoming exhibits, as the witness had not identified them. The court stated that the two registers would become exhibits but the weight will be decided accordingly.

Mr Georges stated that those three registers were given by the witness to Mr Ramkalawan at the Headquarters for examination on the 17 February 2016. He further stated that after Mr Ramkalawan examined the registers, he had called Mr Gappy to explain the registers.  Mr Gappy admitted that they spoke of what was available but that he does not remember the conversation that Mr Georges stated had happened. Mr Gappy was questioned about in which electoral area Parti Lepep won a majority, the answer after looking at the results, he replied it was the inner islands. It was stated that it was the Chief Registration Officer who prepared the results.

Mr Gappy was asked about his relationship with the other parts of the commission, and he stated there were no problems, and if they had differing views, those views were respected. Mr Georges suggested that there was a heated discussion with some the commissioners during the course of the Presidential Election. Mr Gappy stated that everyone has their own view and they all respect each other’s views and he further he stated that when decisions are made, it is the majority. Mr Gappy stated that there were no divergent views on the quality of ink and spray used. The Court cautioned Mr. Georges to proceed with caution with regard to the question of the ink and spray as Mr. Gappy did not bring any evidence in regards to the ink.

Mr Georges inquired whether any consideration was given to complaints received by the Commission, whether there were divergent views from the members of the Commission in relation to the allegations of ID cards being bought and social assistance. Mr Hoareau objected to this line of questioning as those allegations of complaints were not brought up in Mr Georges’ pleading, however, the Court allowed Mr Gappy to respond to the complaints of the alleged buying of ID cards. Mr Gappy stated that there was a complaints mechanism in place and he described what happened when a complaint was placed and necessary steps were taken. He then went on to explain what the Commission did in relation to the complaints of social assistance. He reiterated that there were mechanisms in place.

Mr Georges asked Mr Gappy whether he had read, or had sight of, the interim statement prepared by the Commonwealth Secretary General which Mr Gappy replied that he may have. Upon suggestion that he may have read it, Mr Gappy stated that he met with the Commonwealth observers and received a brief but not a report, he did not react to it as it was only a briefing. He further stated that during the conduct of elections he read in the ‘Today Newspaper’ of allegations of potential vote buying and heard it from observers. He went through the necessary mechanism to deal with such allegation which was to take the matter to the Police as the Commission does not have the power. Mr Georges inquired whether he issued a statement as part of voter education that it was illegal to sell your vote, Mr Gappy replied that he believes there is a module in voter education but he did not specifically issue a warning to people as it was almost the eve of the election.

Mr Gappy explained the purpose of the Handbook, which was issued by the Electoral Commission Office. Mr Georges added prior to and during voting, the electoral officer could use the handbook instead of reading the Election Act, Mr Gappy disagreed and stated that it is imperative that one reads the law. He went on to explain the Code of Conduct which was prepared for the 2015 Elections and its purpose. It was described that the person who issues ballot papers is the same person who makes a mark on the tally sheet, however, Mr Georges suggested that a person does this, and people are susceptible to human errors. Mr Gappy stated that it was what Mr Georges was stating. The process of what is done at the end of voting was discussed and how the ballot paper account is filled in with the aid of the tally sheet. Mr Gappy stated that the tally sheet is efficient and simple calculations and that there has never been any report a ballot paper handed over and a mark was not done.

Mr Georges referred Mr Gappy to the Handbook, and he asked how an Electoral Officer acknowledges receipt of the number of ballots issued to them.  Mr Gappy replied that he wouldn’t know and the person who deals with this issue was the Chief Electoral Officer but the overall procedure was explained. If there were some problems with the ballots, as there were, these ballot books were returned and a fresh one was given with the correct amount. There was an incident which occurred of a ballot book not having the 100, however, the error was rectified and replaced with the correct number. Further, the Presiding Officer of a station will sign that they received the ballots and the amount thereof. This process was according to the handbook. Further questions were put forward to Mr Gappy from the handbook about having only one book of ballots at a time. Mr Gappy stated that only book is given at a time as it helps with control.

Questions were asked about the ballots being printed in South Africa. Mr Gappy stated that this was the first election where the ballots were printed there and he, as well as one representative from each political party, were present when printing took place. There were no irregular books in previous elections as was printed from a different supplier.  It was then explained how the ballot books are collated as well as random checks the representatives and himself did with the books. Further, Mr Gappy stated that there is no serial number on the pages of the ballot books as not required by the law and if there was, this was to aid to the collating and binding and that number was later cut off. In addition, he stated that he did not anticipate that there would be irregular books and knew of the irregularities from his Chief Electoral Officer who mentioned it when counting prior to the start of the second round of elections. Mr Gappy stated that there were errors but those errors had been amended.

Mr Gappy stated that there were some polling stations that some did not do a second check of the ballot books issued to them. The responsibility of telling presiding officers to recount the ballot books before issuing the book was Mr Morin, this was expected but he does not know if Mr Morin instructed this. Mr Gappy explained why it was necessary to have books of ballot papers in full view before being issued. The court asked Mr Gappy whether there was the same issue of irregular books during the first round which he replied that it never came to his attention.

The handbook states that a felt marker was to be used to mark one’s vote and the procedure was to be followed. Mr Gappy stated that in past elections from observation, people used to come with a ballpoint pen so they wanted to discourage such practice hence why they provide a marker but the law does not state that a pen can’t be used. The person who had a register had to sign it at the end of the day to show that they were the person responsible for it.

A discussion followed about the counting of ballot papers on what was the best practice to count, in addition, Mr Gappy explained the ballot account form and how each item was filled in and he stated that no mistake was done when tallying but there could be a mistake when counting ballot papers. Two registers were shown to Mr Gappy, Cascade and Glacis and the different way that each presiding officer at the station filled in the ballot account form was discussed. Mr Gappy stated that if there is a discrepancy with the ballot paper, a remark should not be made on the ballot account form but made in occurrence book.

There was a reference to the Code of Conduct, specifically the District Administration (DA) Office. Mr Gappy stated that in past DA offices were used as polling stations and to prevent abuse as there had been allegations of people coming to the offices, however not all DA offices were used as polling stations. Mr Georges suggested to Mr Gappy that the nature of the relevant section in the Code of Conduct was put in place to ensure that abused was prevented. Mr Gappy stated that if a DA office was in the vicinity of a polling station it should be closed, that was the rational. Mr Gappy also stated that there were no complaints of the ink for the second round not being the same quality as the first round.

Mr Georges raised the topic of the two ballots at the Special Voting Station, where the electoral area was not recorded on the envelope and put it to Mr. Gappy that the process of elimination could not have been done to find out which polling station those voters came from. Mr Gappy replied that when the summary was done; this was done by the presiding officer and provided to them. There was a discussion about the issue of envelopes not matching the number of names.

The Glacis occurrence book was shown to the witness, Mr Gappy stated that when there was a discrepancy between names and envelopes, this should be recorded in the occurrence book. The amount of envelopes of Glacis was discussed and whether there was any discrepancy. It was brought to Mr Gappy’s attention that there was an additional envelope mentioned in the occurrence book, a discrepancy between the list of names and the number of envelopes. Mr Georges suggested that this additional ballot disrupted the tally that Mr Gappy had done yesterday in Court, Mr Gappy disagreed with this figure and went to explain why he disagreed. Mr Georges stated that the Glacis occurrence book showed an additional envelope, how could a presiding officer enter this if it was not true. Mr Gappy response was that he had six people who testified, verified and counted 243 ballots going to Glacis on the eve of sorting, it was sealed and verified the next day the seals were not broken. He stated that there was a mistake at Glacis. He was present at sorting, he counted 243 unless there was tampering. Mr Georges suggested that the mistake had occurred in Mr Gappy’s presence and not at Glacis where many people were present when it was counted. Mr Gappy stated that he can say where he was, and he was at the sorting and he counted 243.

Mr Georges put it to Mr Gappy that there was an error in the count, ‘more probable than not’ that error occurred somewhere other than the Glacis polling station and that being the case, then the exercise that Mr Gappy did in court the day before to make figures tally would be incorrect. Mr Gappy disagreed with this.

Mr Georges questioned whether all were aware of the supplementary list on the 17th December; Mr Gappy stated that the supplementary list was used in the first round so everyone was aware of it. Mr Georges stated that the two voters, Ms Pillay and Ms Belle were not included in the list of names being sent to Au Cap and Anse Etoile respectively, despite the fact that all were aware of this Supplementary list which Mr Gappy agreed that it wasn’t. It was noticed that those two names were not included in the list a week ago or so but not at the time. Mr Georges asked whether the fact that two names were missing could not have been communicated to the Chief Electoral Officer or presiding officers of those stations on the morning, to which Mr Gappy replied that it could not. Mr. Georges continued his line of questions in regards to the two names, and asked why didn’t the presiding officers think of the supplementary list? Mr Gappy responded that they assumed all records had been updated. Mr Georges inquired why Mr Gappy and his Chief Electoral Officer did not seek that explanation of those two names on the night of counting. Mr Gappy stated that it is for Mr Morin to answer, and an error was made but he can say for certain that those people did not vote twice.

Mr Georges stated that their names were not crossed off at the relevant stations and that there was always an inexact recording of the vote. He put it to Mr Gappy that all these irregularities that occurred could have been satisfied by checking votes against the voter’s register crossed out at the start of each person polling. Mr Gappy disagreed with this suggestion.

Mr Georges further suggested that the most foolproof system would have been to properly verify ballots (which was done), and to re-verify them before issuing them at the polling station (which was not always done) and to count the resulting ballots in the box against the register in respect of each electoral station. That would have been the perfect and legal way to do such things. Mr Gappy stated that this was according to Mr Georges.

Upon re-examination by Mrs Aglae, Mr Gappy stated that it was not practicable to check names on the register for counting. He was not present when occurrence books or registers were delivered at the Electoral Commission and would not know if all the registers were sealed in a box at the closing of the poll as that was not his responsibility.  When the defence was amended, Mr Gappy was aware that there were two names. The supplementary list was provided with registers to all polling stations, an exhibit was shown which was the supplementary list with the register.  Mr Gappy reiterated that there were no records of any mistakes in regards to the tally sheet. There was no report of any issue for Glacis for ballot papers, the only issue would be with the envelopes received at Glacis and there was no need to amend the number of ballots received from Headquarters.  Further, he stated that a mistake was more probable to have occurred at the Glacis polling station, than with the six people counting at Headquarters.

There were batches of ballot papers which had 101 or 99, and those which were reported were corrected, however even those which were corrected, there is a possibility those had mistakes as well. An explanation of issuing ballot papers one at a time was explained, and how the tally was made when a paper was issued. Numbering is not used on ballot papers to ensure that there is secrecy of one’s vote. Mrs. Aglae finished re-examining Mr. Gappy’s evidence and Mr. Gappy was then permitted to leave the Court.

Mrs Aglae called Ms Belle, a voter from Anse Etoile District. She stated that she voted at the special voting station at English River on the 16th December 2015 as she was worked in an essential service, she was a police officer and she was working on the 18th December 2015.

The court adjourned for lunch and resumed at 1.45 pm. Mrs Aglae called her next witness, Mr Francoise who works for Immigration. He appeared in court for the Principal Secretary of Immigration to give details about Ms Veronica Pillay. He brought with him documents which included a copy of her travel documents which showed that she has been travelling in and out of the country. For the month of December, she entered Seychelles on the 3rd December 2015 and left on the 17th December 2015. Those documents were produced to the Court as exhibits. Mrs Aglae closed her case.

Mr Hoareau opened his case for the Second Respondent; he called his first witness Mrs Vicky van der Westhuizen. She was a polling agent at North East Point for Parti Lepep, on behalf of Mr James Michel on the 16 December 2015. She stated that the polling agents for SNP for North East Point were Reginald Alcindor and Patrick Savy. The witness described an incident that occurred where she saw Mr Savy at the female ward and requested that he leave with the aid of the police present. He left the ward but was still on the premises of the polling station.

Mr Georges cross-examined the witness about the incident, she stated that the incident occurred around 7.30am in the morning and she then lodged a complaint in the occurrence book. She saw Mr Savy enter the polling station when it was his turn to take over, but the incident occurred before Mr Savy carried his duty as polling agent so she had not seen him. The access to the female ward was described as well as ways to get to the room which was set up for voting. Both were on the ground floor but one need not go through the polling room to get to the female ward. The witness stated that there were nurses when she saw Mr Savy at the female ward but she could not recall how many nurses, there were more than one. Mrs Anne Desir was present as well, who is the head of the place. She decided to get involved, as she was conscious it was election time and was being alert and thought it was her duty to tell Mr Savy to leave and a discussion followed as to why she decided to get involved. The witness stated that she made an entry in the occurrence book, however, it was brought out certain details were left out. Mr Georges suggested that she wanted Mr Savy to leave because she did not want him to see what was happening in the ward hence why she interceded. Mrs van der Westhuizen stated that he was not correct.

On re-examination, Mrs van der Westhuizen stated that when she made the entry in the occurrence book Mrs Alcindor was still there. Further, it was brought out from the Handbook that only persons who were authorised could make entries in occurrence book.

Mr Hoareau’s next witness; Mr Rajasundaran, 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 Hoareau stated that in the letter 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. Mr Hoareau reiterated whether the impression he had was those eligible to vote would get suitably based positions in Mr Ramkalawan’s government, the witness stated that it appeared that Tamil people would be considered and agreed 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.

The Attorney General read section 51 (3)(b) of the Election 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 Rajasundaran agreed. Further Mr Rajasundaran agreed that Mr Ramkalawan was inducing the Tamil Community to vote for him and in return for a favour.

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 to be a minister or Principal Secretary and the letter was not personalised. It was agreed that there was no signature on the letter. Mr Rajasundaran stated that he received the letter between the first and second round of elections despite the letter being dated 9th December 2015.

Upon re-examination, Mr Rajasundran stated that the community comprises of people in Seychelles who speak Tamil and included voters.

The next witness who was called Mrs Joanne Moustache. She stated she lives on Perseverance I and that her house was 3 metres behind the District Administration (DA) office on Perseverance. Mrs Moustache is a mobilizer for Parti Lepep for Perseverance. She described what a mobilizer does and she has done this for 11 years. She acknowledged that she knew Mrs Stella Afif as she used to work for her.  Mrs Moustache stated that she was involved with the special polling station on Perseverance on 16 December 2015. She was helping incapacitated people by providing transport to them and their family. She coordinated this arrangement and there were other people helping her.

The photograph that Mrs Afif had taken was shown to the witness and she identified the two people in the picture as herself and Mr Francois Michel and described what she was holding in the picture and what was happening. She stated to access her house, she has to pass through a pathway between the DA office and another building, Youth Service Bureau (YSB). Prior to the picture being taken, Mrs Moustache had come from the voting station and she was dropped off where the picture was taken. After the picture was taken, she went home but before she did she approached Mrs Afif and told her she ‘came closer so she can get a better picture’. She stated she did not see anyone entering DA office nor was she on welfare benefit. She explained what the white paper was from the picture and the list was produced in court. She stated that she did not go the DA office on the 16th.

Mr Georges cross-examined the witness whether the DA office was open on the 16th, and she replied that it was and she saw one or two people going in and that she did not go in. The DA office was open throughout the day until 4pm. She denied that she told Mrs Afif that she went to collect her welfare money when she approached her.

Mr Hoareau called Mr Patrick Payet who is the Principal Secretary of the Ministry of Finance and Trade and the Blue Economy. The letter that Mr Payet had written was shown to him. It concerned the 13-month salary for Seychellois Indian Ocean Tuna (IOT) employees that the Government decided to pay them. The incentive was then explained by Mr Payet who stated that negotiations had taken place between the Ministry of Finance and IOT. It was brought out that this gratuity system was going to be presented in the budget speech on 15 December and had been previously gazetted on 27 November 2015.  The letter was written in his capacity as Principal Secretary and that he sent it before the Christmas shutdown of the IOT plant on the 24 December 2015. President Michel was not aware of his letter.

The Attorney General asked Mr Payet about the gratuity service tendered to IOT and Mr Payet explained the service.

Mr Georges inquired whether the Seychelles Government was a minority shareholder of IOT, Mr Payet stated that the Government has 40% shares and that it is a profitable company. The company was not budget dependent except for Seychellois employees where there was an incentive scheme in place and that IOT does not get the monies directly but it is given to employees. The Government does not provide budget assistance directly to IOT but the Seychellois employees get direct payment from the Government. IOT was not covered in a circular, despite the term public enterprise mentioned. IOT did not want to pay their employees a 13-month salary and this had to be provided by the Government. The Appropriation Bill was explained and where IOT would fall under, however, further information had to be referred to the budget. No other institution was given a similar letter to IOT as those institutions were covered in the circular. Mr Georges suggested that as a Senior Civil Servant, by sending that letter, he was giving a boost to the Incumbent President as a candidate for elections. Mr Payet stated that he was not and that he was simply doing his job.

Upon re-examination, Mr Payet stated that the circular was dated 14 September 2015 in relation to the 13-month salary and negotiation was in June 2015, before the circular. Further, he stated that the letter was sent to the Managing Director of IOT and that he did not specify when the 13-month salary would be paid. The reason why the 13-month salary was announced during the Christmas period despite only being paid in January 2016 was that it would assist the Seychellois employees to plan for Christmas and enjoy themselves.

The court adjourned for the day and will reconvene Wednesday 23 March 2016 at 9:30 am.

Special Rapporteur

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