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2.01.2012

Constitutional jurisprudence in paradise (Seychelles)

[I am delighted to post this note on behalf of the Honorable Justice Anthony Francis T. Fernando of the Court of Appeal, Seychelles - the highest court in that small Indian Ocean country. It concerns an important election appeal ruling rendered by the Seychelles Court of Appeal in December 2011. Seychelles was a single-party country until the early 1990s, before moving to a democratic model over the last two decades. The case and full judgment (see link below) are a good illustration of a number of things, among them the reliance on constitutional law and courts for dealing with high politics (see also the recent events in Senegal and in Papua New Guinea), as well as reference to foreign case law in a seldom studied jurisdiction. It also shows how a thoughtful, well-reasoned decision may increase a court's credibility even in a politically charged setting]. RH


Note on PDM VS Electoral Commission (2011):

The issue that came up for determination before the Seychelles Court of Appeal in the case of Popular Democratic Movement VS The Electoral Commission, an appeal from a judgment of the Constitutional Court of Seychelles; was whether it is the total votes cast including votes which had been rejected; OR the valid votes cast that has to be considered in relation to the determination of the number of ‘proportionately elected members’ a political party may nominate after a general election to the National Assembly. The votes polled by PDM at the 2011 General Elections held in the Seychelles, if determined on the basis of the total votes cast, worked out to 7.4% and if determined on the basis of valid votes, 10.9%.

The National Assembly of the Seychelles consists of 25 members directly elected from the 25 electorates and not more than 10 members elected on the basis of proportional representation. The Constitution provides that “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”.

In the Preamble to the Constitution, which is an integral part of the Constitution, the people of Seychelles, have, solemnly declared their unswaying commitment, to develop a democratic system.

The Constitution specifies that Seychelles is a sovereign democratic Republic. It is democratic because the Constitution ensures the creation and existence of the government at the will of the people through their participation in the formation of the government at regular intervals.

No doubt as a general proposition one’s right to vote undoubtedly includes his right not to vote or spoil his vote but to equate that right to his constitutional right “to take part in the conduct of public affairs” or to treat that as an exercise of one’s “individual rights and freedoms with due regard to the rights and freedoms of others and the common interest” and generally, to strive towards the fulfillment of the aspirations contained in the Preamble of the Constitution”, namely to “develop a democratic system”; is farfetched. The rights and duties of a citizen set out in the Constitution places an obligation on a citizen to cast a valid vote. The Elections Act enacted in accordance with the Constitution to regulate the right to vote specifies the procedure for voting. Thus the voter must comply with this procedure in exercising his right to vote.

Consequently in determining the membership of the National Assembly whether ‘directly elected’ or ‘proportionately elected’ it is only the wishes of those who decided to cast their votes correctly in favour of a candidate that should be considered.

Furthermore, it would be an anomaly if ‘directly elected’ members were to be determined on the basis of the valid votes cast and the ‘proportionately elected’ members were to be determined on the basis of the total votes cast.

Justice Anthony Francis T. Fernando
Court of Appeal, Seychelles

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