Constitutional court: AG needs to be impartial, rules Mathilda Twomey 


The client of the Attorney General is the government of Seychelles and the government of Seychelles’ interests might not be the same as those of President elect or an incumbent, the Chief Justice said yesterday, before giving a warning to the Attorney General and telling him he had overstepped his role. 



Chief Justice Mathilda Twomey yesterday gave a warning to Attorney General (AG) Ronny Govinden, telling him that he had “overstepped his position” by taking a stand on Wavel Ramkalawan’s petition alleging irregularities during the 2015 Presidential election. She stated that the role of an Attorney General is to remain impartial, and that the Attorney General is not there to represent any party, but is there to advise the court independently. 

Consequently, the court struck out the statements he made in his affidavit with regards to the petition, claiming that no illegal practices took place during the first and second round of the Presidential election. Mr Ramkalawan, the leader of the Seychelles National Party (SNP) had asked the court to remove the AG from the list of respondents, following the latter’s assertion that he “totally supports the two respondents”, namely James Michel and the Election Commission. 

Quoting the Constitution, CJ Twomey said that “according to Article 76 Section 10 of the Constitution, it provides that ‘in the exercise of the power invested in the Attorney General by clause 4, the Attorney General shall not be subject to the direction of any other person or authority’.”

She explained that when the Attorney General is named as a respondent in the light of this article, his overall duty is to his client, which is the government of Seychelles”. She further noted that in an election petition, the best interests of the government are possibly separate from those of the individual hopeful candidates, the President elect, or the incumbent President.

The application to strike off the AG as a party to the petition alleging irregularities during the 2015 Presidential election was filed two weeks ago during the first mention of the case. This followed the filing of the three respondents’ defense before the Constitutional Court. The AG had filed his affidavit in support of the two other respondents even before they had filed their defense.

Attorney General Govinden is thus still a party to the case as a legal advisor but has been given restrictions for the election petition case and was asked by the court to exercise restraint before making any comments. TODAY could not get a reaction from Mr Govinden. 

Additionally, the court struck out the Principal State Counsel David Esparon’s affidavit in support of the AG. In this affidavit, Mr Esparon puts on record his belief that the elections were free from irregularities. CJ Mathilda Twomey stated that because the affidavit is “placed solely on personal knowledge and leaves no ability to prove, as such, this affidavit fails to meet the requirements of Section 170 and cannot be admitted into the court records.” 

The court therefore ruled that the affidavit be struck out. The two election petitions alleging irregularities during the Presidential election were filed on 28 December 2015 and 5 January 2016 respectively, after the Presidential runoff which took place on 16, 17 and 18 December. 


Trial begins 

The hearing began after the ruling on the matter of the AG’s position and focused on the definition of votes cast. Mr Ramkalawan’s lawyer, Bernard Georges, sought to define the meaning of votes cast by explaining that votes cast meant all votes rather than valid votes alone.

Lawyer for James Michel, Basil Hoareau submitted for his part that the Constitution has always provided people with the right to vote in as much as they in turn respect certain regulations, in accordance with the laws of the land, and that failure to comply with such regulations will result in the Electoral Commission not counting their votes as being valid. After hearing all points from both sides, Chief Justice Towmey noted that while many countries do include a box on ballot papers for voters who wish to register a blank vote, in Seychelles this is not the case. 

“How does one construe this?” she then asked in reference to how one would decide which invalid votes to count and which to discount. She further asked whether Seychellois would intentionally spoil votes to make a point or whether this stemmed rather from a lack of education.

After yesterday’s session, Mr Ramkalawan’s lawyer, Bernard Georges, told TODAY that he was happy with the decision regarding the Attorney General and hopes that he can get his points across in court in order to prove his case. The hearing continues today from 9am until noon, and reconvenes at 2pm until 4pm. 


Source: 2-16-16