Tuesday, December 22, 2015


Despite the fact that James Michel was sworn in as President yesterday, the battle is far from over.

By Deepa Bhookhun

Never has a Presidential election been so problematic. The international observers yesterday refused to say whether the election was free, fair and transparent, adding that they will defer the announcement of their findings until after the Constitutional Court determines whether the election is valid or not. The Union for Change is expected to petition the court today.

While the observers’ refusal to endorse the election, speaks volumes in itself, they actually went as far as to suggest that the swearing in ceremony of the new President should not have taken place until the court has validated the Electoral Commission's decision to announce James Michel the winner of the 2015 Presidential election in the early hours of Saturday.

Honourable Justice Mahapela Lehohla from the ECF-SADC said yesterday during a meeting with the press that "there should be a neutral person to assume the power of State during the time that the election is being petitioned in court. In most countries, it is the Chief Justice who assumes this responsibility".

Mr Lehohla was reacting to a question on the number of days a person has to petition the court on the validity of an election. At the moment, a person has ten days to contest.

In Seychelles however, the law makes no provision for such a scenario, making it hard to question the legality of yesterday's swearing in ceremony. The law needs to be amended to further enhance the democratic process, SADC's Honourable Fezile Bhengu said without giving any specifics.

Another issue which has cropped up threatens to complicate the matter further. Alexia Amesbury told this newspaper yesterday that the Electoral Commission has "violated the law by declaring James Michel the winner".

The lawyer's argument is that Schedule 3, section 5 of the Constitution says that “subject to paragraphs 6 and 7, a person shall not be elected to the office of President unless he has received more than fifty percent of the votes in the election and the necessary number of ballots may, subject to the election being discontinued and recommenced in accordance with an Act, be held in accordance with the direction of the Electoral Commission to achieve that result.”

Read in conjunction with section 37(1) of the Elections Act, this, members of the Union for Change say, would suggest that the Electoral Commission should have calculated the candidates' results on the number of votes cast rather than the number of valid votes. Had they done so, neither of the candidates would have been declared the winner as the latter would have needed to obtain at least 31 947 votes. James Michel totalled 31 512 votes while Wavel Ramkalawan totalled 31 319 votes.

The Elections Act Section 37(1) says: “Where on the statement of the result transmitted to the Electoral Commission in respect of a Presidential Election, no candidate receives more than fifty percent of the votes cast, the Electoral Commission shall not declare the result of the election and the provision of paragraph 8 of Schedule 3 of the Constitution and sections 17 to 36 of this Act as applicable to the election shall apply to the second ballot”.

Does this mean that the results announced early Saturday morning are not valid? Was it right to take into account only valid votes or should the EC have taken into account the number of votes cast? This matter can only be settled by the Constitutional Court.

Some lawyers argue that the matter was settled in 2011 when the Constitutional Court declared that it was the number of valid votes that had to be taken into account and not the number of votes cast but others such as Alexia Amesbury say that this interpretation only concerned the matter of proportional representation in the National Assembly and not a Presidential election.

The leader of Seychelles National Party (SNP) Wavel Ramkalawan has already announced that the results will be contested. He refused to concede defeat and yesterday the Union for Change movement announced that it will petition the court today and ask it to declare the election invalid.

The Union for Change will be contesting the results based on a number of irregularities it says it noticed during the election. Sources tell this newspaper the irregularities have to do with "election rigging as the number of votes cast did not tally with the number of people who voted, some ballot papers were marked with a pen instead of a marker and some people voted twice and the fact that the total number of votes changed after counting". There has been no official communication of the specific grounds on which the election will be contested.

The international observers' findings would have helped open the way for the challenge but yesterday's meeting with the press shows that they are being very cautious in their official remarks. Their final findings will be issued in 90 days, they announced yesterday at the meeting at Avani hotel in Barbarons.

Bishop James Wong did not take kindly to this manoeuvre and said that "90 days is too long for the country to wait for the report as people want to know whether the election was free, fair and transparent right now". He added that there were rumours that there could be riots in the country and that there is much tension in the country, something that the Seychelles Interfaith Council (SIFCO) is trying to diffuse.

Judge Bernardin Renaud who was also present at the meeting, said that while it was normal for the observer missions not to declare if the election was free and fair as the matter was subjudice, "unfortunately for the people of Seychelles, this is not good as they want answers".

Mr Renaud also questioned the use of election terminology such as "casting", "polling", "valid vote" as well as who has the authority to declare that a vote is rejected. He said that these words are being used "loosely in our Elections Act and this is serious".

The number of votes rejected totalled 1 062 while the difference in votes between the two candidates was just 193 votes.

Source: Today in Seychelles