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
