SEYCHELLES: THE ROLE OF THE JUDICIARY IN THE TRANSITION FROM DICTATORSHIP TO DEMOCRACY (By Zonm Lib)
In Seychelles the role of the judiciary in the democratic transition has never been analysed despite several important aspects of the transition to liberal democracy, including constitutional & electoral reforms and elections. More importantly is the absence of study and analysis of the social and political consequences of the role that the judiciary has played and continues to play in the said democratic transition.
Although references have been made to the systematic violations of human rights Amnesty International 1985, 1986 and 1987 that characterized the dictatorial regime of France Albert Rene, as well as the continued repression and suppression of civil and political right under the present regime, no one has directly scrutinized the rationale behind the judiciary’s failure to enforce such rights as the right to life, freedom of expression, freedom of association, right to liberty etc.
In Seychelles the role of the judiciary is at variance with Constitutional and other checks on state powers found in classical democracies. Whereas in countries such as Chile the impression is that the judiciary has too much political power vis-à-vis the legislature, in Seychelles the situation is one where there is too much control of the judiciary by the Executive. Not surprisingly, there is a recurrent concern with the perceived role of the judiciary and with the ways in which it can be transformed, so that it can become an active tool in the promotion and consolidation of a democratic political culture.
Democratic theory maintains that state power is divided between three branches, which mutually counter-balance each other. This theory also maintains that while one of those powers legislate and the other administers, it is the role of the judiciary to sanction the excesses committed by the legislative and the executive. In doing so the judiciary helps to preserve democracy. Firstly, for one power to effectively check the other it must be autonomous from the latter. Hence the effectiveness of the judiciary in a democratic society resides in it being autonomous from the executive and the legislative. Secondly, since it is politics that identifies those whose goals are to attain control of political power through the executive and the legislative, it follows then that the members of the judiciary must be apolitical, and non-partisan in order to guarantee their immunity from political contamination, which would otherwise impinge on their autonomy. The principles of autonomy and apoliticism of the judiciary are enshrined in the Constitution. But in Seychelles the enforcement and practice of those principles in everyday life is non- existent at worse and illusory at best.
The objective of this analysis is to focus on the peculiar relationship between the administration of justice and the political power in Seychelles. My hypothesis is that it is the failure in maintaining the proper system of checks and balances inimical to democratic theory, which might help to explain the delay of democratic consolidation in Seychelles. In pursuing this hypothesis a methodological distinction is made between the role of Supreme Court sitting as Constitutional Court in a democratic society on the one hand, and the role of the judiciary and the administration of justice at large, on the other.
One of the functions of the constitutional court is its prerogative to review the constitutionality and legality of decisions adopted by the other powers. The more general question of the judiciary has to do, in turn, with the independence and autonomy of the judges from the pressures, which may be exerted, by the executive and the legislative. Both issues are of great relevance to the democratic consolidation of Seychelles, but they need to be treated differently. The problem of the court and its powers of judicial review are theoretically related to the notion of the division of powers and to the role that in a democratic society may correspond to an institution which not only is not popularly elected but is, in most cases, ideologically attached to the minority dominant sectors of society. It also has to do with the important role, which the court may play in legitimizing the structures of power, which I deem to be insufficiently democratic in Seychelles. On the other hand, the question of the autonomy and independence of the judiciary is a subject matter which revolves in various directions: the fiscal constraints suffered by members of the judiciary and their consequences in terms of conflicts of interest, corruption, abandonment of duties, delays in adjudicating justice, etc.; the mechanisms of control involved in the appointments, promotions and dismissal of judges and the corresponding lack of professionalism; the restriction in the judiciary’s jurisdictional prerogatives as government encroach on their autonomy thereby violating the democratic principle of separation of powers. This second aspect translates into a generalised view of the judiciary as an inefficient, corrupt and subordinate power, which systematically fails to protect the individual citizens’ civil and political freedoms proper in a democracy from governmental abuses.
From the point of view of the various institutions playing a role in the consolidation of democracy emerging in Seychelles one sees the presence of (1) institutions which link the dictatorial past with the present and, (2) new institutions which define the boundaries of the democratic transition process. Some post-coup, and pre-multi-party institutions have been strengthened while some others were created by recent move towards democracy. Among the latter one finds the 1993 Constitution, which creates and defines the function of an independent judiciary, the office of Ombudsman, Auditor-General and the Separation of Powers etc. According to conventional wisdom, the permanence of such institutions would appear as a mechanism supporting the consolidation of democracy but in Seychelles that may not be the case. In order for Seychelles to have a liberal democratic transition the newly created institutions of the 1993 Constitution must be democratic in the classical sense of liberal democracy and the institutions inherited from the one party era such as a state controlled public media, controlled economy, controlled Central Bank must be dismantled.
In Seychelles the only state organs, which have survived with very little changes during the transition from dictatorship to democracy, are the armed forces, the judiciary and. the practices of the executive. Moreover there is a consensus that in Seychelles the judiciary can be characterized as an essentially un-democratic and anti-democratic institution before, and after the 1993 Constitutional changes and this, has led to widespread discontent with the administration of justice. It can be argued that as presently const-ituted the judiciary safeguards the new institutional order, which appears to justify, rationalise, and legitimize both the abuses of power, by the previous regime as well as the restricted democracy, which is the legacy of the said regime.
The reluctance on the part of the judiciary to adapt to the new democratic phase may contribute to the political fragility of the current democratizing attempts. As the elitist branch of the state and not having emanated from the community whose rights it is meant to safeguard, the judiciary stands out as being in opposition to the social, economic and political changes that the People of Seychelles through the Third Republic is trying to introduce. In the fourteen years of one party dictatorship and continuing to the present the judiciary has lent political legitimacy to the government by persistently and consistently refusing to uphold the civil and political rights of the citizenry unless sanctioned by the prosecutorial authority, and the executive.
The creation and thus far maintaining unchanged a judicial system stacked with individuals appointed by an undiscerning president has proven quite successful at preserving the authoritarian legacy by making it almost impossible for opposing forces to have a chance at true electoral success. The judiciary in Seychelles like that of Pinochet’s government directly violated the human rights of so many citizens or even worst, provide the legal, judicial or administrative cover-up for the atrocities committed by the dictatorship and now by the executive. The bunker mentality adopted by the judiciary and other bureaucratic agencies, is one of the main obstacles to the establishment of true democracy in Seychelles.
Judicial power is currently playing a crucial role in delaying the processes of democratic transition in Seychelles due mainly (1) to portraying itself as having abandoned its traditional role in the system of checks and balances that ought to characterize liberal democracies. And (2) the overall failure to adjudicate justice in view of the widely recognized violations of human rights committed by governments past and present. In failing to protect civil and political liberties the judiciary is seen as also failing to meet one of the three essentials conditions of a democracy as discussed by Robert Dahl (1971) in his classic study “Polyarchy”.
The Judiciary’s abrogation of Responsibility During Albert Rene’s Dictatorship and The Third Republic
In the last fifteen years of SPPF rule the judiciary, has distinguish itself for, failing its constitutional and legal duties to protect the human rights of dozens of citizens who are victims of government, acting literally as “soldiers in robes or government men in robes” the members of the judiciary lend legitimacy to the government in many different ways. Be that as it may, it is however in the area of human rights that the judiciary shows its true colours. Indifferent at best, vengeful at worse the courts choose not to come to the rescue of citizens and foreigners who were/are victimized by an undemocratic regime.
However to be fair to the judiciary, they are not alone in their complicity or reluctance to stand up to the violations of human rights. The pre-coup d’tat mentality of the population clearly shows that most Seychellois did/do not have a solid, well-rooted understanding of the essential meaning of what human rights are supposed to be. Based on the propaganda machinery at work, as far as many Seychellois were/are concerned “their” right to live in paradise had been violated by the capitalistic government of Mancham. So there was a strong assumption held by many that Rene had come to rescue them from imminent peril.
The ensuing years were marked by the abduction and disappearance of dozens of Seychellois whose whereabouts are still unknown today. On the few occasions that writ of habeus corpus applications have been filed a typical reaction by the judiciary was to request, in writing, information from the government as to whether or not the individual was really being detained by the security forces. When the predictable negative response came back, the court would then make an order stating that since the detention of the person in question had not been established it had no alternative but to reject the writ of habeus corpus.
So far the judiciary has made every effort possible to avoid clashing with the executive in matters of legality or constitutionality even if, that meant not doing everything necessary to protect civil and political rights. The exaggerated presidentialist nature of Seychelles politics has made it possible for the president of the republic to effectively curtail the prerogative of both the legislature and the judiciary. The latter has traditionally served merely to rubber-stamp presidential decisions. This political control of the judicial power is reflected in a judiciary, which suffers from grave deficiencies, due mainly to corruption, the lack of adequate mechanisms to identify and sanction corrupt members, the lack of human resources, and the lack of professionalism among judges and auxiliary personnel. The judiciary, like other major political, economic and social institutions in the country, is subordinate to a highly centralized, authoritarian, and personalized presidency.
The Democratic Transition and The Judiciary
Sadly in the context of Seychelles the 57% of population that elected James Michel has not sought some definitive answers regarding the SPPF human rights violations. Like many dictators before him who had been forced to accept multi-party politics, Albert Rene ratified various international treaties and conventions on the protection of human rights but what he failed to do was to set up a Commission to investigate the violations of human rights attributed to his government, (this moral cleansing is needed in order to heal the open wounds of the national soul) and to introduce legislation to reform the judicial system which even then, had manifestations of being in crisis.
The executive needs to listen to the people who are saying “the judiciary is not independent, it administers justice in a mechanical fashion too close to the letter of the law and totally disregards its role as guardians of our rights.” Unfortunately for Seychelles President Michel appears as though he would like to bury the recent past of human rights violations and move forward as if nothing has happened. Should he attempt to bring in legislation that would once and for all end any future prosecution of human rights abusers the people of Seychelles has recourse to international tribunals who are specifically set up to deal with crime against humanity and other gross violations. When General Pinochet came to power in 1973 he believed that he was going to be in power forever. But events proved him wrong. In Michel’s Seychelles the fundamental contradiction is between undemocratic institutions holding power and the democratic Seychellois holding nothing, for it allows a minority to retain power while shamelessly corrupting the very principles of democratic rule.
Onwards to Democracy
I believe that the road to a full democratic state is a long but not unattainable one. It involves a passive revolution in which the powers that protect undemocratic fortresses are captured with painstaking efforts at all levels, but mainly in civil society. Some of those efforts are already underway, the average Seychellois is open to a new popular culture, which accepts human rights as universal principles that belong to all of us. The opposition press is yet another weapon in the fight against unjust and undemocratic institutions. Its power in denouncing the atrocities of the past and the roles that current institutions and individuals have in them cannot be underestimated.
