By N.Esparon
Following the release of the report of the Commission of
Inquiry into the search of Honourable Wavel Ramkalawan’s luggage at Seychelles’
International Airport on 8 February 2020, the legal counsel for the Seychelles
Police Force, Frank Elizabeth addressed the media through a press conference on
Friday, 17 April 2020.
When Judge Fiona Robinson rendered the search conducted by ANB
officers on Honourable Ramkalawan which occurred in February to be unlawful as
the officers did not satisfy the test of reasonable grounds for suspicion before
the search took place, it raised the question of the legality on the way stop
and search is currently being conducted by law enforcement officers in
Seychelles. The Misuse of Drugs Act, 2016 (MODA), under the Power of search and
seizure, article 25 (1) states that an officer at any time, without a warrant,
can - (a) to stop and search any person whom the officer reasonably suspects of
having in his or her possession a controlled drug or an article liable to
seizure.
According to Elizabeth, the Seychelles Police Force is not
disputing the fact that MODA doesn’t give any officers the authority to conduct
a stop and search without reasonable suspicions. However, Elizabeth explained
that when consent for the search is given to the police, this should give the
police the authority to search contrary to the findings in the report, which
states that even though Honourable Ramkalawan instigated the search, and giving
consent in the process, it was still an unlawful search due to no evidence of
reasonable suspicion.
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| Elizabeth |
Elizabeth announced that the Seychelles Police Force will
therefore be taking this matter to the Supreme Court for judicial review and
for them to make a pronouncement on whether Judge Robinson’s ruling was
correct. He also pointed out that Judge Robinson based her ruling only on section
25 of the MODA but she should also have taken into account the Right to
privacy, Article 20 (1) of the Seychelles Constitution where it states that every
person has a right not to be subjected to – (a) without the consent of that
person, to the search of the person or property or premises of that person or
to the unlawful entry by others on the premises of that person. However,
Elizabeth believes that in reverse to Article 20, where consent for the search
is given to the authority, this should permit the law enforcement officers to
search without any reasonable suspicions but this is contrary to the report as
it suggests regardless of consent, reasonable suspicions must be present first.
According to Anthony Derjacques, the legal counsel for Honourable
Ramkalawan, a judicial review is only applicable to an adjudicating authority,
such as a tribunal, a court or public authority where they would render a
determination or judgment on a matter. The role of the Commission of Inquiry is
simply a body established under the Act by the president to establish the
finding of the facts, the law and the facts under the law, it is not to
adjudicate between parties like in a court of law but to establish the fact and
report back to the president; the findings of the Commission can include
recommendations.
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| Anthony Derjacques |
“If you want to enlarge MODA in the light of article 20, you
have to take into account when looking for reasonable suspicion that in law,
consent from a child is not consent and consent under duress is not consent in
law. If there is a finding of consent, it is one of the circumstances that must
be taken into consideration by the police officer when he or she finds there was
reasonable suspicion. For example, a person who approaches a police officer and
says to search him, the police officer will tell him to go away I have no
intention of searching you. But if, in the circumstances that someone
approaches an officer and ask to be searched to get the attention of the officer
whilst his friends walk by with a package containing drugs, the police officer
can take into account whether to determine if the person that said to search me
knew about the drug trafficking taking place and raises a reasonable suspicion
in his mind, he can even arrest that person. You cannot look at consent or the
lack of consent in isolation, it is one of the circumstances when you try to interpret
section 25 (1) of MODA” clarified Derjacques.
Source: Today in Seychelles