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

Day 24 – 28th March 2016, 9.30 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 Miss 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).

The Court resumed this morning to hear closing submissions. All parties presented written submissions to the Court but were also given 15 minutes during which to make oral submissions. 

The Attorney-General was first to address the Court. The Attorney-General submitted that an election petition is dissimilar to other civil actions and that the burden of proof is on Mr Ramkalawan. He submitted that in instances of alleged non-compliance, Mr Ramkalawan had to prove the non-compliance and how it affected the results of the Presidential elections. Where Mr Ramkalawan alleges an illegal practice, he submitted that Mr Ramkalawan had to prove the illegal practice and that the illegal practice was committed by Mr Michel or his agent with the consent or approval of Mr Michel. The Attorney-General addressed the court on the issue of the evidential burden by submitting that Mr Ramkalawan has a duty to bring evidence under oath to prove each and every averment in the Petition, and that the Respondents do not have a duty to rebut any averments if no evidence has been brought.

The Attorney-General submitted that the standard of proof to be applied in this case is the criminal standard of “beyond reasonable doubt” because of the nature of the penalties for illegal practices. The Attorney-General cited two Seychelles cases as precedent for applying a criminal standard of proof in election petitions. The Attorney-General submitted that the Court should not follow the Mauritian case of Jugnauth•1 which applied a civil standard of proof, arguing that the wording of the Mauritius law was different to the wording of the UK law and that this had a significant bearing on the finding that a lower standard of proof than usual exists in Mauritius. He argued that the same is not true for Seychelles.

The Court asked the Attorney-General to pronounce on the issue of what is an acceptable margin of error. The Attorney-General submitted that the Court must look at the total circumstances of the case to decide whether the election was conducted “substantially” in accordance with the election law and following Berlouis vs. Pierre•2, that where the Court finds that the elections been conducted substantially in accordance with the election law, it would not be vitiated by a breach of the rules or a mistake at the polls, provided the result was not affected. The Attorney-General submitted that in this case there were certain human errors but that the election was conducted substantially in accordance with the election law and the errors did not affect the result.

The Attorney-General submitted that with regards to allegations of illegal practice, Mr Ramkalawan had failed to prove the element of knowledge, consent or approval by Mr James Michel. The Attorney-General referred to the case of Wavel Ramkalawan v Albert Rene•3 and argued that positive evidence must be led to prove knowledge, consent or approval and that mere non-interference is not sufficient.

Mrs Aglae was next to address the Court. Mrs Aglae went through the instances of alleged non-compliance and irregularities, namely, poor quality ink and spray, no suitable arrangements to ensure no double-voting, failure to safeguard the liberty of aged voters, withholding of ID cards and coaching, use of more than one copy of register, two blank envelopes from the special polling stations, to name a few, and submitted that all the allegations were either insufficiently proved by Mr Ramkalawan or sufficiently shown to have been impossible by the Electoral Commission and that in any case, they did not affect the result of the election. Mrs Aglae submitted that Mr Ramkawalan had failed to prove the allegations of illegal practices or that the authors of the alleged illegal practices were agents of Mr Michel.  Mrs Aglae submitted that what had instead transpired from the proceedings was an illegal practice committed by Mr Ramkalawan in the form of a letter sent by Mr Ramkalawan to the Tamil community. Mrs Aglae ended by saying that no instances of non-compliance or irregularities have been proved by Mr Ramkalawan and that whilst there were human errors, she adopted the Attorney-General’s submission on the acceptable margin of error and submitted that, the election was substantially in accordance with election law and that these errors did not have an impact on the result.

Mr Hoareau submitted that in the absence of any express provision in the Elections Act that the Petition is to be supported by affidavits, all the supporting affidavits should be disregarded and the Court should only take into account the oral evidence on oath led during the trial. The only exception, Mr Hoareau submitted, is where the affidavits had been used to cross-examine witnesses in which instances they should be treated as previous inconsistent statements. Mr Hoareau referred to various cases from Seychelles, Mauritius and India and submitted that the rules of pleadings in election petitions are more strict than in normal civil actions. Mr Hoareau submitted that it is not sufficient to make vague averments in the Petition. Relying on Perame v Peri•4, Mr Hoareau submitted that any averments not supported by evidence must be disregarded by the Court. He cited one example - the averments regarding the Agency of Social Protection in the Petition which stated that letters were sent to individuals and on that basis these individuals went to the Agency to collect money and submitted that Mr Zialor’s evidence did not support the averments as Mr Zialor did not testify that he had received a letter from the Agency.

Mr Hoareau joined the submissions of the Attorney-General on the burden of proof, submitting that it lies on the Petitioner. He submitted that satisfying the evidential burden means that a party has adduced sufficient evidence on an issue upon which the Court can possibly (emphasis added) find in favour of that party, so that where a party has adduced evidence and the other party hasn’t, it does not mean that the Court will (emphasis added) find in favour of the first party.  He submitted that the standard of proof is the criminal standard of proof and sought to differentiate the case of Jugnauth which applied the civil standard of proof. He argued that in the case of Jugnauth the Privy Council held that the civil standard applies because a distinction was made between Mauritius and UK law where Mauritius law did not include the word “guilty” in relation to illegal practices but UK law did. He argued that the UK law was similar to Seychelles law which also used the word “guilty”. He argued that the fact that the Court could find an individual “guilty” of an illegal practice meant that the criminal standard of proof should apply. He argued that the Court could not apply two standards in the same case and referred to the case of R v Rowe•5 which he argued held that it was not desirable to have two different standards in respect of the same issue.

On the issue of agency, Mr Hoareau submitted that before one considers the issue of knowledge or consent, the illegal practice itself must first be established and that the Elections Act does not make it an illegal practice to buy an ID card. He argued that section 51(3)(a) of the Elections Act provides for instances of one giving money or making promises in order to induce someone to vote or refrain from voting. The Court questioned whether the act of buying ID cards off someone who believed that it was the only means of identification for voting purposes doesn’t amount to this, and Mr Hoareau submitted that whilst it could, it had to be proved that the individual believed this to be the case but this was not done and in any case the ID cards were returned.  Mr Hoareau submitted that there must be evidence led on the issue of agency. The Court questioned whether it could infer agency and Mr Hoareau submitted that whilst the court could look to all the circumstances and infer agency, there was no evidence in the present case that would allow them to do so. He referred to the example of Mr James Lesperance and stated that the evidence led that Mr Lesperance was sitting in the front row at the swearing in ceremony of the President was insufficient and the evidence led that Mr Lesperance was a polling agent was shown by the Respondents to have been incorrect. Mr Hoareau quoted a passage from Halbury’s Law of England which states that “the mere fact that the alleged agent is a brother of the candidate or a partner or son of an authorised agent is not sufficient to establish agency. A confidential employee, even though active in the election, is not necessarily an agent.”

Mr Hoareau submitted that none of the alleged threats of temporal loss fell within the meaning of section 51(3)(j) of the Elections Act. He submitted that all that Captain Savy had said was that there was a possibility of Etihad Airways pulling out of Seychelles but that he specifically stated that it would be the decision of Sheikh Khalifa. Mr Hoareau similarly submitted that the actions of Beryl Botsoie and the SPDF officers did not amount to threats of temporal loss. Also in respect of Mrs Botsoie and the SPDF incidents, Mr Hoareau submitted that the threat must be shown to have been made to a voter, but that no evidence had been led to show that the teachers who Mrs Botsoie addressed, or the soldiers who the army officers addressed, were eligible voters, hence failing to fall within the meaning of section 51(3)(j).

Mr Hoareau submitted on another issue not raised in his written submissions but which he urged the Court to consider nonetheless. He referred to section 51(3)(b) of the Elections Act which covers instances of a person directly or indirectly agreeing to give any office or employment to a voter in order to induce a voter to vote or refrain from voting. He submitted that in the present case, Mr Ramkalawan has accepted that there were leaflets issued to the Tamil community which stated that those who are eligible will be appointed as ministers and principal secretaries. Mr Hoareau submitted that the leaflets did not say if eligible (emphasis added) but those who are eligible. The effect of this, Mr Hoareau argues, is to show that Mr Ramkalawan had already identified the individuals to which the inducement was being made. Mr Hoareau submitted that the difference between politicking and inducement is general statements about improving the country versus statements targeting an individual or group. The Court questioned what effect this would have on the Petition and Mr Hoareau stated that it would have no effect on the Petition but possibly on the Petitioner. 

Mr Georges was next to address the Court. He submitted that the case of Mr Ramkalawan is built on two pillars; first, that there were too many irregular practices on the part of the Electoral Commission and second, that there were numerous instances of illegal practices on the part of Mr Michel. Addressing on the first pillar, Mr Georges submitted that it is Mr Ramkalawan’s case that by reason of these irregularities and instances of non-compliance, there is and remains uncertainty about where the problems lie; whether they exist in the ballot books, the method of marking the registers, the tally sheet or in the count, to name a few. The result of this, he argued, is that there is uncertainty as to what the margin of error might or might not be. Mr Georges submitted that the Electoral Commission’s approach of trying to plug holes at the end of the count, as he stated Mr Gappy attempted to do in his oral evidence, does not lead to a credible outcome. Mr Georges submitted that not only do the ballot papers have to be certain but they must be judged against the registers, as the law provides, and not against the tally sheets which might have been introduced for ease of process by the Electoral Commission. This is why, Mr Georges submitted, in respect of this first pillar, that one of the two alternatives sought by Mr Ramkalawan is a recount; a recount using the registers itself, once reconciled, as the law provides.  

Mr Georges submitted that in those instances of “unknown unknowns”, the burden is not on Mr Ramkalawan to show that the outcome would have been different but that this can be inferred by the Court by looking at the totality of the evidence and making a finding on a balance of probabilities.  He argued that in the circumstances only half of 193 votes are necessary to tip the scales as for every vote gained, there is one vote lost. Mr Georges submitted that taken singly there are several instances which might have tipped the scales and gave the examples of the inner islands inconsistencies, the IOT where there are 500 Seychellois employees, the Agency of Social Protection which ambit is even greater and the soldiers of the SPDF. Addressing the issue raised by Mr Hoareau regarding whether the persons being addressed by Mrs Botsoie and the SPDF officers were voters, Mr Georges argued that this could be inferred by the Court – for example, the teachers were being addressed in Creole so it can be inferred they were Seychellois.

With regards to the standard of proof to be applied, Mr Georges submitted that the 1975 cases cited were based on old law that was no longer relevant today and that the case of Jugnauth is still an appropriate case to measure the standard of proof by. Mr Georges submitted that the issue in the Jugnauth case was not the word “guilty” but whether the court can under the law make a determination in respect of the election separately from whether an illegal practice has been committed and the answer was a resounding yes. Mr Georges submitted that there is no substantially compliant clause in Seychelles law that would allow the Court to say that there were irregularities but overall it did not affect the result.

On the issue of agency, Mr Georges submitted that knowledge and consent of Mr Michel can be implied by the Court from certain circumstances. Mr Georges submitted that the 2001 case of Ramkalawan v Rene must be read in the context of the fact that the Court did not have the benefit of the quality and magnitude of the submissions made to this Court. Mr Georges referred to the Tower Hamlets case•6 which pronounced on the rules of agency to be applied in election cases as authority for the application of relaxed principles of agency. He submitted that the effect of the relaxed principles is that if a person gets you votes and you accept them, then you cannot retain the benefit of the votes without assuming the acts of that person.

The Court will deliver judgment on both petitions on Tuesday 31st May 2016 at 10 am.

Legal note:

•1 Ringadoo v Jugnauth [2007] SCJ 80.

•2 Berlouis vs Pierre 1974 SLR No 39.

•3 Wavel Ramkalawan v France Albert Rene (Constitutional Court case no. 7 of 2002).

•4 Marie-Ange Pirame v Armano Peri SCA 16 of 2005.

•5 R v Rowe [1992] 1 WLR 1059.

•6 Erlam & Ors v Rahman & Ors [2014] (known to the profession as the Tower Hamlets Case). 

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