David Pierre new leader of the opposition in the Assembly -

Popular Democratic Party (PDM) leader David Pierre is the new leader of the opposition in the National Assembly.

Mr Pierre taking his Oath of Allegiance before Speaker Herminie

Mr Pierre nominated and voted himself leader of the opposition after being sworn in yesterday as his party’s proportionally elected member in the National Assembly.

The PDM won its appeal for the allocation of a proportionally elected seat in the National Assembly in a ruling by the Court of Appeal last week.

Mr Pierre took his Oath of Allegiance in the presence of Speaker Patrick Herminie, members of the majority Parti Lepep in the Assembly and representatives of the PDM who were also present.

Explaining the procedure, Speaker Herminie said Article 84 of the Constitution provides for members of the opposition in the Assembly to choose a leader among them but the fact that in this case there is only one member, the Assembly has received legal advice that this is the closest to the procedure which has been used so far.

Speaking soon after taking his oath, Mr Pierre said PDM as the only opposition party being represented in the Assembly will have a different approach in its method and style of doing politics in the opposition.

He said the people will be there to judge and guide them with their contributions to ensure the opposition brings what is best for Seychelles.

He insists that his party will continue to develop a multi-party system of democracy because the PDM does not believe in one-party politics.

He said his party will among many things strive to ensure that the right to respect will be for all Seychellois but not only for the leaders; that Seychelles deserves a government which respects all its people regardless of religion, race and political affiliation; that the PDM plays an active role to ensure that not only the political process is democratised but that the economic development of the whole country continues to be transformed and that all Seychellois gets equal chance to take part in the process.

Mr Pierre said the PDM is taking this opportunity to call for dialogue with President James Michel.
“PDM is ready to meet Mr Michel to start the process for serious, frank and honest consultations and dialogue in a continuous manner on all issues relating directly to the welfare, prosperity and happiness of our people,” said Mr Pierre.

Both Speaker Herminie and the leader of government business in the Assembly, Marie-Louise Potter, congratulated Mr Pierre on his new responsibility as the PDM representative and the leader of the opposition in the Assembly.

Mr Herminie also announced that Mr Pierre, as the leader of the opposition in the Assembly, will be the new chairperson of the Assembly’s Finance Committee, the body responsible to oversee government expenses.

Mrs Potter welcomed Mr Pierre in the Assembly and said the majority party is encouraged by his party’s new approach to doing politics.

“The election is now behind us and we still have a lot of challenges facing us,” she said.
She said the two parties will have different views and will disagree on various issues but this should not be allowed to divide them.

She stressed that the welfare of the people should remain the main priority of both parties.

Asked why Mr Pierre had to be sworn in at a time when the Assembly is going into recess, Mr Herminie said the Constitution obliged that the Assembly starts a new term with the State of the Nation Address. Had Mr Pierre not sworn in today, he would not be able to be present in the Assembly for the President’s address.

Meanwhile the National Assembly has gone into recess after a week-long sessions during which a series of Bills were debated and approved.

The Assembly is to resume early next year with President James Michel’s State-of-the-nation Address.

http://www.nation.sc/index.php?art=25978

| IN THE SEYCHELLES COURT OF APPEAL -

(Coram: MacGregor, PA, Fernando and Twomey, JJA)

In view of the considerable Constitutional importance of the above mentioned case and the various legal issues involved, Seychelles Nation has decided to publish in their entirety the judgements made by the justices of Appeal Anthony Fernando and Matilda Twomey.

The President of the Court of Appeal, Francis MacGregor, is in agreement with both judgments.

On Monday this week, we carried the judgement made by Justice Fernando. Today, we publish the judgement of Justice Twomey).



Popular Democratic Movement Appellant

(herein represented by its Leader, David Pierre)

V

Electoral Commission 1st Respondent

(herein represented by its Chairperson Hendrick Gappy)

And

The Attorney General 2nd Respondent







SCA 16 of 2011

B. Hoareau, Attorney-at-law for the Appellant

F. Ally, Attorney-at-law for the 1st Respondent

R. Govinden Hon. Attorney General for the 2nd Respondent



JUDGMENT

Twomey, JA



JUDGMENT

Twomey, JA

The Facts

1. In July 2011 a member of the Seychelles National Party, the main opposition party, voted with members of the ruling Parti Lepep to dissolve the National Assembly. General elections were held on the 29th September to 1st of October 2011. The Popular Democratic Movement (PDM) is a political party which registered under the Political Parties (Registration and Regulations) Act of Seychelles just before the said elections. As the other existing opposition parties decided to boycott these elections, the PDM was therefore the only party contesting the elections against the incumbent, the Parti Lepep.



2. The PDM fielded candidates in each of the 25 electoral areas for the National Assembly Elections.



3. The 1st Respondent is a statutory body created by virtue of the Constitution charged with conducting and supervising elections and referenda in Seychelles.



4. The 2nd Respondent is made a Respondent in accordance with Rule 3 of the Constitutional Court (Application, Contravention, Enforcement of Interpretation of the Constitution) Rules 1994.



5. The elections were duly conducted and supervised by the 1st Respondent from the 29th September to the 1st of October 2011, after which elections the 1st Respondent through its Chairperson announced the results in each of the 25 electoral areas on 2nd October 2011.



6. The Appellant failed to win any seats for directly elected members to the National Assembly. Further the 1st Respondent declared that the Petitioner having won only 7.4% of the total votes cast at the elections was not entitled to any proportionately elected members in the National Assembly. It is this declaration that culminated in the present appeal by the Appellant.



7. The full results, insofar as they affected the Appellant were as follows:



Total votes cast 51,592

Total valid votes 35,145

Votes cast for PDM 3,828

As an aside it must be noted that this was the first time so many spoilt votes were recorded in any elections in Seychelles, resulting largely from the boycott of the elections by the other opposition parties.

The Law

8. It is important at this juncture to look at the original article of the Constitution in relation to the computation of proportional representative (PR) seats to fully understand the Appellant’s case. The Third Constitution of the Republic of Seychelles was promulgated in 1993. Article 78 reads as follows:

“The National Assembly shall consist of –

a) such number of members directly elected in accordance with –

i. This Constitution; and

ii. Subject to this Constitution, an Act,

as is equal to the number of electoral areas;

b) such number of members elected on the basis of the scheme of proportional representation specified in Schedule 4 as is equal to one-half of the number of directly elected members or, where one-half of the number of directly elected members results in a whole number and a fraction, as is equal to the whole number immediately following the result.

9. No Act in relation to the computation of the number of PR members was ever passed but the 1993 Constitution in its Schedule 4 provided for the calculation of such seats. Section 3 (1) of the schedule provides that:

“The following formula shall apply for the purpose of determining the number of proportionately elected members a political party may nominate –

A = B x C

D

Where:

A = number of proportionately elected members a political party may nominate;

B = relevant number;

C = total number of votes cast or deemed to be cast in favour of the candidates nominated by the political party; and

D = total number of valid votes cast or deemed to be cast at the election.

Relevant number is defined in section 1 as “…the number of proportionately elected members referred to in article 78,”(then 11 as there were 22 electoral areas).

10. One National Assembly election took place where this system was

used – the July 1993 elections and under the said formula 11 PR seats were indeed returned; Parti Lepep (then SPPF) received 6 , the Democratic Party, 4 and the United Opposition 1.



11. Subsequently, an amendment to the PR seats was proposed. It

is evidently clear and not disputed that the 1996 Amendment to the Constitution, sought to reduce the number of proportionately elected seats. Its new Article 78 (b) states:

“The National Assembly shall consist of -…

(b) not more than 10 members elected on the basis of the

scheme of representation specified in Schedule 4.”



12. The amended section 2 of the Schedule 4 now reads as follows:

“A political party which has nominated one or more candidates in a general election and has polled in respect of the candidates in aggregate 10% or more of the votes cast at the election may nominate a proportionately elected member for each 10% of the votes polled.”

It is also pertinent to note that after this amendment the number of electoral areas was increased from 22 to 25.

The Constitutional Challenge

13. The declaration of the Electoral Commission that the Appellant had

only polled 7.4% of the total votes resulted in the Appellant failing to reach the requisite quota for a proportional representative seat under Article 78 (b) and section 2 of Schedule 4.

14. In the Constitutional Court the Appellant argued that his rights had

been contravened under the said Article; that the said contravention was occasioned by the erroneous use by 1st Respondent of the number of “votes cast” as opposed to the number of “valid votes cast” in the computation for the number for a PR seats. In the Appellant’s estimation if 10% of the total “valid votes” cast had been used instead, it would have resulted in the PDM obtaining 10.89% and hence they would have been entitled to nominate one PR elected member to the National Assembly. It is therefore the contention of the Appellant that it was the usage of the literal interpretation of the words “votes cast” by the 1st Respondent in section 2 of schedule 4 under Article 79 (b) that resulted in his rights being contravened.



15. The Appellant further argued that the Constitution used the

terminology “votes cast” in several articles, namely Articles 91 (1), and sections 2(2) and 8(1) of Schedule 3 relating to the election of the President. He also contended that a parallel had to be drawn with the counting procedure laid out in the Elections Act 1995 for the election of directly elected members of the National Assembly which clearly eliminated invalid votes in the procedure for election.



16. In response the Respondents submitted that the words “votes cast”

included all the votes both valid and invalid put into a ballot box. He contended that that was indeed the intention of the legislature in varying the language from “valid votes” to “votes cast” in the amendment. The 1st Respondent further contended that that was indeed the manner in which all computations of proportionately elected members had been done in previous elections of the Third Republic of Seychelles.

17. The Constitutional Court by majority judgments delivered by the

Learned Chief Justice Egonda-Ntende and Learned Justice Gaswaga on 25th October 2011 used the plain and ordinary meaning of the words “votes cast” in the context of Schedule 4 concluding that had the legislature intended that the threshold be 10% of the valid votes it would have said so exactly. Justice Burhan in a dissenting judgment expressed the opposite view, namely that a change in language is not always indicative of a change of construction as the alteration in the language of a statute by a later statute could very well be for surplussage. In that context he surmised that the use of the word “valid” in the amending Act of 1996 would inevitably have been surplussage and it was for this reason that the word “valid” was omitted.



18. The result of the above judgment resulted in the dismissal of the

petition and the Appellant has now appealed to this Court. His seven grounds of appeal mirror his arguments in the Constitutional Court.

Grounds of Appeal

19. The Appellant’s contention and grounds of Appeal may be

summarised as follows:

· That the learned judges who delivered the majority judgment erred in law in not applying the definition of “votes cast” in the Election Act to the term used in paragraph 2 of Schedule 4 to the Constitution.

· That the said judges erred in law in referring to the 1993 wording of Schedule 4 to the Constitution to construe the present meaning of the words “votes cast.”

· That the said judges failed to appreciate the object of the amending Act, the deliberations of the National Assembly of the 9th of July 1996 and the entirety of the new formula regarding the entitlement of political parties to nominate proportionately elected members to the National Assembly.

· That the learned judges failed to attach sufficient weight to the fact that the Amendment to the Constitution took place whilst the Election Act 1995 was in force and hence the word “valid” in terms of the said Act was mere surplussage.

· That the learned judges had erred on the facts by accepting the precedent of computation used by the Electoral Commission in past elections.



20. In considering the contentions of the Appellant it seems to me that the

only real issue in the present case is the interpretation of the words “votes cast” in paragraph 2 of Schedule 4 of the Constitution. In trying to find a definition various methods have been used by the parties and the Constitutional Court to arrive at what each thought must have been the intention of the legislator. Hence different rules of interpretation have been followed. Before I embark on the same journey I have chosen to resort to some mathematical calculations for PR seats under both the 1993 and the post 1996 formulae. I have done so in order to satisfy myself what the purpose of the amendment was and to eliminate any perverse and unintended alternative that could not have been intended.



21. Under the 1993 formula of A = B x C but using the election results of

D

2011 and the present number of electoral seats (25), the PDM would

have got 2 seats:



13 (half of the 25 seats rounded up to the next figure) x 3828 = 1.414 35,145

This would have resulted in the entitlement of the PDM to nominate 2 proportionally elected members under the 1993 provisions of paragraph 3(2) and 3 (3) (ii) of Schedule 4 of the original Constitution.



22. Under the 1996 amendment and the present day formula the two

alternatives are the following:



· According to the argument advanced by the 1st Respondent the formula should be 3,828 of 51,592 = 7.4% (51,592 being all votes cast

including spoilt votes). Hence 0 seat.

· According to the Appellant and the 2nd Respondent the formula should be 3528 of 35,145% = 10.89% (35,145 being only valid votes cast). Hence 1 seat.

23. The above computations clearly illustrate that under the 1996

provisions either of the above computation delivers the aim of the

amendment, that is to reduce the number of PR seats, albeit that the

first alternative delivers more drastic results.



Travaux Préparatoires



24. To establish the correct interpretation of the provisions I therefore have

to be guided both by the intentions of the legislator as evidenced by the

deliberations of the National Assembly as well as rules of constitutional

interpretation.



25. In this respect I have perused the proceedings of the National Assembly

of the 9th July 1996. I note that essentially the amendment sought to

do 2 things:

· to reduce the number of PR seats from 11 to a maximum of 10.

· to raise the percentage required to obtain such a seat from 8% to 10% of party votes.



This is certainly borne out by the deliberations of the then SPPF members in the National Assembly, with a certain delicatesse by some members but with a great deal of crudeness and blatancy by others: viz P.28 National Assembly proceedings of 9th July 1996, verbatim extracts:



“Minister Belmont “Bill pe propose ki sa nonm i vin 10, aktyelman i 11... sa lanmanmand i pou redwir par enn an term absoli , la kantite manm proposyonnelman elekte.

(my translation “This Bill proposes that the number (of PR seats) becomes 10, which presently is 11, reduced in absolute terms by 1 in relation to those members who are proportionately elected”).



Honourable Herminie “ I neseser Mse Speaker pou met an plas 10% pou lasemp rezon ki nou nepli kapab toler en sityasyon kot ou annan nou en minorite absoli ki pe fer en kantite tapaz lo non lepep Seselwa.”

(my translation “It is necessary Mr. Speaker to impose 10% for the simple reason that we cannot tolerate a situation where an absolute minority makes a great deal of noise in the name of the people of Seychelles.”)



26. This amendment was strongly resisted by the opposition who saw a

further dilution of its mandate:



Honourable Daniel Belle (for Democratic Party)... “I vedir ki i infringe the rights of the electorate sa i enportan akoz si yer avek 8% i ti nobou ganny li en seat, ozordi elektora ki dan en parti politik, ki fodre i ganny li 10% pou li ganny en seat. Donk lo pwen reprezantasyon, sa i en keksoz ki fodre pa nou oubliye. E dan en sistenm de demokrasi reprezantatif nou bezwen dan en serten fason, regard sa pou vwar si anmemtan nou pa pe infringe rights sa bann dimoun.”

(my translation “it means that it infringes the rights of the electorate, this is important since if yesterday one could with 8% gain one seat, today the electorate of a political party will need 10% to get one seat. Hence on a point of representation that is something that must be borne in mind. And in a system of representative democracy we have in some way to ensure that the rights of these people are not infringed.”



Honourable Ramkalawan for United Opposition (P. 24-27 of the same proceedings)

“Kalkile si ki si dan lot eleksyon lopozisyon i reprezant li 49% me Selman i pa ganny li en first past the post, atraver bann mannev ki zot fer...pou annan li zis 4 dimoun dan sa Lasamble. Eski sa i en sityasyon ki aksetab?

(my translation “ Just think that if in another election the opposition proportionally receives 49% of the votes but no seat under the first past the post system, through your manoeuvres... it would only have 4 members in the Assembly. Is this an acceptable situation?).



27. What is also clear from the proceedings is that members of the SPPF

seemed unclear about the aims of the amendment. Some seemed to express the view that the amendment would result in 10 PR seats being returned, others that it would see a maximum of 10%. Some opined that the amendment would curb the representation of “rogue minorities” in the Assembly (viz the “Hizbollah” reference by Honourable de Commarmond at P.31). Minister Belmont indicates that it was purely to reduce and not to remove proportional representation. The focus of Assembly members seemed to be more on the amendment of the Constitution to allow for the appointment of a Vice President, which amendment was debated during the same proceedings.



28. Hence we now have an Act, which provisions according to the parties,

can be interpreted in two ways: one which would allow proportional representation and one to all but remove it. As the deliberations of the Assembly do not clarify the situation and does not aid in a literal interpretation of the provision I have no alternative but to look at the said provision in the context of the whole Constitution and at rules of interpretation contained in the Constitution but also in terms of constitutional rules of interpretation generally.



30. We have also been invited by learned Counsel for the Appellant to refer

to the provisions of the Elections Act which are in pari materia with the Constitutional provisions but I do not think I need even make the comparison. I do however accept submissions of learned Counsel for the Appellant that some help may be derived from provisions of the Elections Act as for all intents and purposes it addresses the same subject matter, namely elections. As the Act deals directly with the manner of elections, specifically National Assembly Elections, and figures emanating from votes cast for directly elected members of the Assembly have a direct and immediate bearing on the computation of the total PR seats attributable to each party, then it would be illogical to use one method in one (valid votes) and a different one (total votes) in the other.



The interpretation of the Constitution

31. In terms of rules of interpretation this Court is guided by the fact that

the Constitution should be interpreted to give effect to it. Paragraph 8 of Schedule 2 of the Constitution states that the provisions of the Constitution should be given their fair and liberal meaning; that the Constitution should be read as a whole and should be treated as speaking from time to time. Similarly, we cannot overlook the provisions of Article 48 which requires that the interpretation shall be done in such a way so as not to be inconsistent with inter alia international obligations and that judicial notice of international instruments, Constitutions of other democratic States, decisions of the courts of the States or nations in respect of their Constitutions.

http://www.nation.sc/index.php?art=26047

Continuation of PDM V/S Electoral Commission (Part II) -
32. The decisions of Atkinson v Government of Seychelles SCA1 of

2007 and Paul Chow v Gappy and ors SCA of 2007 support this view and are authorities for the proposition that constitutional provisions have to be interpreted in a purposeful manner. It must be noted that the rules of interpretation of written Constitutions differ from the interpretation of ordinary statutes. There is general recognition that Constitutions are the products of political bargains and arrangements for the government of a country and as such merits a general and liberal interpretation. Hence the Privy Council in Home Affairs v Fisher (1980) AC 319 held that “written constitutions were a consequence of their purpose and aim, quite distinct from legislation and subsidiary legislation. Accordingly they should have their own rules of interpretation especially in relation to fundamental rights." This principle was extended to all provisions of constitutions in general in another Privy Council case, that of AG of Fiji v DPP (1983) 2 AC 672 where it was held that "the political nature of the constitution should be acknowledged. They contain principles, norms and values amongst other things which relate to constantly changing social and cultural values rather than some eternal unchangeable meaning..."



33. Obviously these rules only apply when interpretation is necessary,

If there is no ambiguity, no interpretation is required. The obvious meaning has to be declared. If interpretation is required, this has to be done in the context of the Constitution as a whole. In this respect

the latin maxim Nemo aliquam partem recte intelligere potest antequam totum perlegit - No one can properly understand a part until he has read the whole - is relevant.



34. The most entrenched principle in our Constitution is that of

democracy; all the provisions of the Constitution are suffused with the principles of the rule of law, democracy and equality. The Preamble to the Constitution contains those principles together with the declaration that all citizens should be able to exercise their individual rights and freedoms with due regard to the rights and freedoms of others and the common interest. It is my view that all this serves in the interpretation of any individual provision of the Constitution.



35. The Preamble to the Constitution can also assist in the purpose of

interpretation. In re Remuneration of Judges 2 [1997] 3 SCR 3, the Supreme Court of Canada held that “…the preamble is not only a key to construing the express provisions of the Constitution Act, 1867, but also invites the use of those organizing principles to fill out gaps in the express terms of the constitutional scheme. It is the means by which the underlying logic of the Act can be given the force of law.”



36. Dworkin in his seminal work “Law’s Empire” (at 255) states the

following in relation to interpretation of the American Constitution:



“The effort of each judge should be to construct the best

interpretation of equality of which he or she is capable. The inquiry might turn to any number of texts, precedents, or historical events, as well as moral intuitions and principled arguments. The best interpretation is that which achieves the greatest harmony among these diverse sources. We distort this process if we conceive of it as an effort to put into place a local community's unique concept of equality, instead of the constitutional goal of equality that is a common aspiration of American life. The same can be said of liberty, due process, and the other broad values of our constitutionalism.”



37. Similarly Justice Breyer of the Supreme Court United States believes

that judges must be concerned with purposes and consequences as well as plain meaning when interpreting the Constitution. (See Stephen G Breyer, Active Liberty: Interpreting Our Democratic Constitution (2005)).



38. I am of the view that what would most serve the present

circumstances is a functional approach that will see the provisions of the Constitution operate as a whole in a coherent and harmonious way. I am also guided by the provisions of other Constitutions of democracies. I am further aware that Constitutionalism in this day and age struggles to reconcile the rule of law with the rule of popular interests. I am therefore minded to interpret the Constitution only in the light of the wider commitment to the principles of liberty, fraternity, equality, justice and due process as expressed in the Preamble.



39. I have also trawled through different Constitutions and looked at

different methods of computing the number of PR seats including First Past the Post, Run-offs (Alternative Vote and Instant Run Off) Transferable Vote ( Single, Hare-Clark, d’Hondt and Sainte Laguё), PR largest remainder (Hare quota) and Parallel systems (such as the Seychelles system). What I can say with certainty is that the number of seats under each system is calculated in different ways but what is equally certain is that none of the systems outlined above take into account the number of spoilt votes in computing the number of directly elected or PR seats to Assemblies.



40. The reason for this is self evident. If one includes spoilt votes in such

computations, one is interpreting the intention behind the spoilt votes. What we can guess perhaps, in the present case is that a large number of persons in the elections of October spoilt their votes as a gesture of protest against what they saw as illegal elections taking place as a result of the purported illegal dissolution of the Assembly. However, a number of people also spoilt their votes as they did not know how to validly cast their votes or inadvertently spoilt their votes as is evidenced by previous figures in other elections. It is impossible to separate those “real” spoilt votes from the “intentional” spoilt votes. It is also impossible to say how many of these persons voted. To count the number of spoilt votes into total votes and ascribe to it the meaning of valid votes is to deliberately interpret the latent vote of a voter into a patent one. This then makes meaningless the distinction between spoilt votes and valid votes.



41. To ascribe the meaning of “total votes” to “votes cast” I must therefore

be persuaded that such a perverse intention was indeed intended by the 1996 Amendment. As I have pointed out above, deliberations in the Assembly do not elicit such a clear intention by those who proposed the amendment. If we are to keep faith with the Constitution and with its underlying basic principles of democracy and the rules of interpretation outlined above I cannot infer such an intention in the amendment.



42. The assertion by the Electoral Commission that they have always

used only “total votes” as opposed to “valid votes” in the computation for the number of proportionally elected members does indeed show the Commission’s consistency but as has been pointed out by Learned Justice Gaswaga in the Constitutional Court this however, does not make it right.



43. Finally, it would also seem to me, that there is a very obvious point

missed by all parties concerned. This alone may have been enough to

explain the reason for the different terms used in the original constitutional provision and the amendment. Since the original (1993) provision contained a formula which had to distinguish between “votes cast” (termed “C”) and “valid votes” (termed “D) both expressions had to be used. The new formula adopted in 1996 is one solely based on percentages and the term “votes cast” does not need to be distinguished from “valid votes” as it is not employed in the formula at all and hence can only bear the meaning of “valid votes.”

45. Why then may we ask was this computing error not spotted since

the introduction of the formula in 1996? The answer is simple. A review of election results since 1996 show the average number of spoilt votes in the National Assembly Elections (of 1998, 2002, and 2007) was 1189. Thus the margin in the computation for PR would have been slight between the use of the number of “valid votes” and “votes cast.” The error becomes manifest in the 2011 elections because the number of spoilt votes was 16,647.



46. In the circumstances and for all the aforementioned reasons I hold

that the term “votes cast” in Schedule 2 part 4 of the Constitution means “valid votes cast” and cannot include the number of spoilt votes for the computation of proportional representative seats to the National Assembly of Seychelles.



45. I am satisfied that the declaration of the 1st Respondent made

through its Chairperson Hendrick Gappy has contravened article 78(b) of the Constitution and paragraph 2 of schedule 4 of the Constitution.



46. I am further satisfied that the said contravention has affected the

rights and interests of the Appellant.



47. I direct the 1st Respondent to compute the number of PR seats based

on “valid votes cast” where the term “votes cast” is used in paragraph 2 of schedule 4 of the Constitution. For the avoidance of doubt this includes the computation of the number of proportionately representative members of both the Parti Lepep and the Popular Democratic Movement.



48. I make no order as to costs.



M. Twomey

Justice of Appeal

http://www.nation.sc/index.php?art=26049

Decision Of Court Of Appeal In PDM Case Rewrites The Constitution

The decision of the Court of Appeal in the case of the Popular Democratic Movement is devoid of legal justification and totally ignores the key provisions of the Constitution regarding the matter of the case. In this decision, the Judges of the Court of Appeal, JJ Macgregor, Twomey and Fernando, have not interpreted the Constitution as it exists, they have written their own. These Judges have decided that the wording of the Constitutional amendment is not suitable and they have made their own amendment.

In its decision, delivered on December 9, 2011, the Court of Appeal found that the PDM was entitled to a proportionally elected seat in the National Assembly from the result of the general election held on October 1, 2011 because it had obtained over 10% of ‘valid votes’. It thus reversed the majority decision of the Constitutional Court given by CJ Egonda-Ntende and J Gaswaga and of the Seychelles Electoral Commission that the Constitution allocates proportionally elected seats on the basis of total ‘votes cast’ . The decisions of these institutions could have been overturned only with clear Constitutional basis which the Court of Appeal has not been able to provide.

The Constitution makes very clear and specific distinction between the allocation of seats to directly elected members and to proportionally elected members.

Article 78 of the Constitution states without ambiguity that the allocation of proportionally elected seats shall be as “specified in schedule 4”.

This Schedule 4 carries the clear tile “Proportionally Elected Members” and deals only with such members. Thus the Constitution clearly sets different rules for the allocation of these seats. The Judges of the Court of Appeal have no basis for saying that the two must be the same.

This Schedule 4 contains the provision that has been quoted so often and which was the basis of the Judgement of JJ Egonda-Ntende and Gaswaga of the Constitutional Court.

“A political party which has nominated one or more candidates in a general election and has polled in respect of the candidates in aggregates 10% or more of the votes cast at the election may nominate a proportionally elected member for each 10% of the vote polled. “

As the two judges of the Constitutional Court stated in their decision, the Constitution has in several instances used the terms ‘votes cast’ and ‘valid votes’ and it is clear that there are two different meanings. ‘Votes cast’ as stated in Schedule 4 is different from ‘valid votes’.

Votes cast can only mean votes that are put in the box. As CJ Egonda-Ntende stated, this is the only possible interpretation. The action of casting the vote comes before any interpretation of the vote as being valid or not. If a vote is invalid, it does not alter the fact that it has been cast.

CAJ Fernando’s statement argues that the Constitution could not have intended to recognise that a person would not vote or would cast an invalid vote. But this is precisely what Schedule 4 does.

The principle of using total ‘votes cast’ may be misguided. If this is so, then we have to go back and change the Constitution. The Judges have no right to ignore what the Constitution says.

The Judges of the Court of Appeal have fallen back, as Judge Burhan did in the Constitutional Court Case, on the Elections Act, which prescribes a different method of tallying the votes. But it is very clear that the Elections Act does not apply to Proportionally Elected Seats.

This is how the Elections Act begins:



Short title and Application 1. (1) This Act may be cited as the Elections Act.

(2) This Act shall apply for the purposes of: -

(a) an election of the President

(b) an election of a directly elected member of the National Assembly

(c) a referendum.



The Act does not include ‘Proportionally Elected Members’ in its stated purpose and makes no mention of proportionally elected seats. In seeking to rest their judgement on it, the Judges are grasping thin air.

The decision of the Court of Appeal, being so weak in legal justification, undermines the credibility of the Judiciary as the guardian of the Constitution and the law. The decision has grave consequences for our democratic system because it allows the composition of a National Assembly that is not according to the Constitution and by that sets aside the wishes of the electorate.

The Court of Appeal has, in this ill-considered decision, diminished the credibility of the Constitutional Court, of Chief Justice Egenda-Ntende and of the Seychelles Electoral Commission.



Seychelles National Party December 9, 2011

Appeals Court says “spoilt votes” cannot be “valid votes”

It will be recalled that following the legislative elections in October, the Electoral Commission, chaired by the former Electoral Commissioner, Hendrick Gappy made a determination that the PDM was not entitled to a seat in the National Assembly because it had not met the required 10% of votes cast, as expressed in the 4th Amendment to the Constitution. The PDM had challenged the ruling of the Electoral Commission in the Constitutional Court.

The Court of Appeal, comprising JJA, F. MacGregor, A. Fernando and M. Twomey, found the declaration by the Electoral Commission that the Appellant (PDM) had only polled 7.4% of ‘votes cast’ and was therefore not entitled to any proportionally elected members to be wrong.

The basis of the Appeal was that the Constitutional Court had erred in not applying the definition of ‘votes cast‘ as set out in the Election Act and rather referred to the 1993 Constitution wording to determine the meaning of ‘votes cast‘. The Appeals Court in the reversing the Constitutional Court's decision indicated that it should have referred itself to the provisions of the Elections Act.

The Appeal judges also found, amongst other errors cited, that the Constitutional Court had “failed to appreciate the object of the Amending Act, the deliberations of the National Assembly of 9 July 1996 and the entirety of the new formula regarding the entitlement of political parties to nominate proportionally elected members to the National Assembly".

In her reasoning in support of her decision to uphold the PDM Appeal Justice Mathilda Twomey, held that the term ‘votes cast’ in the Constitution means ‘valid votes cast’ and cannot include the number of spoilt votes for the computation of proportional representative seats to the National Assembly of Seychelles. She concluded that the decision by the Electoral Commission had contravened article 78(b) of the Constitution as well as Schedule 4.

Justice Twomey directed the Electoral Commission to compute the number of proportional representative seals based on ‘valid votes cast’ where the term ‘votes cast’ is in accordance with paragraph 2 of Schedule 4- of the Constitution.

In a separate judgment Justice Anthony Fernando found that the Constitutional Court had erred in 3 of the grounds of Appeal presented by the PDM, in support of its case. He went on to overthrow the decisions made by the Chief Justice and Justice Duncan Gaswaga allowing the Appeal and declaring the decision of the Electoral to be in contravention of Schedule 4 of the Constitution.

He went on to issue a writ of Mandamus ordering the Electoral Commission to make a fresh determination and declaration regarding the number of “proportionally" elected members the two political parties that contested the legislative elections of 2011, on the basis that the term “votes cast” of the Constitution shall only mean “valid votes cast”.

Source: Seychelles Today 12-10-11

L’Assemblée Nationale approuve la mise en place d’une Commission Anti-corruption

23-March-2016
L’Assemblée Nationale a hier voté à l’unanimité la mise en place d’une Commission Anti-corruption, commission annoncée par le Président James Michel dans son discours de l’Etat de la Nation en février dernier.
Le projet de loi permettant l’établissement de cette commission a été présenté par le Vice-Président Danny Faure, qui a dit qu’il reflète l’engagement du Parti Lepep comme promis dans son manifeste pré-électoral pour l’élection présidentielle, qui s’est tenue en décembre dernier. Le vice-president a rajouté que la décision du gouvernement répond à la position des Nations Unis sur la corruption.
Il a précisé que le projet de loi a pour but de créer une nouvelle structure indépendante, avec l’objectif de faire trois choses : D’abord détecter les pratiques corrompues, ensuite mener des enquêtes et enfin assurer la prévention contre la corruption par le biais de l’information et de l’éducation.
Cette loi établit également les pratiques considérées comme corrompues. Une fois que la commission est établie, elle communiquera le caractère de ces pratiques illégales à la population. Elle fait aussi provision pour la protection de toute personne fournissant des informations à la commission. Elle établit également des procédures à adopter contre des plaintes non-fondées qui seront considérées comme une infraction.
La Commission de cinq membres sera nommée par la Constitutional Appointment Authority – l’autorité chargée de nommer les postes définis par la Constitution – et approuvée par le Président de la république. Elle désignera elle-même son chef exécutif qui sera soutenu par des comités et services spécialisés, ainsi qu’un secrétariat. La poursuite judiciaire contre la corruption restera néanmoins la responsabilité du procureur général.
Les membres qui se sont prononcés sur le sujet ont fait remarquer que tout le monde dans tous les secteurs peuvent être emmenés à être corrompus et qu’il ne faut pas oublier que dans tout acte de corruption, il y a aussi un corrupteur. Même s’ils ont accepté que la loi passée hier représente une des plus importantes votées par l’Assemblée Nationale, ils ont averti que la commission ne sera pas une formule magique qui répondra tout de suite aux attentes du public en ce qui concerne la corruption.
S’il a eu récemment un grand débat sur l’existence ou non de la corruption aux Seychelles, les députés semblaient finalement d’accord que le fléau existe réellement. Ils ont exprimé l’inquiétude que la Commission Anti-corrompue devienne elle-même corrompue et ont demandé que ses membres et employés soient fournis avec toutes les ressources nécessaires pour qu’elle puisse faire son travail.
Et surtout, qu’ils soient bien rémunérés !

http://www.nation.sc/article.html?id=248837