Electoral Petitions & Recount

Editorial

The new year starts with some encouraging news for opposition parties with the latest stand taken by the Electoral Commission and the Returning Officer not to oppose the plea for the recount of votes in the matter of MMM candidate Jenny Adebiro who had contested the election of ML candidate Ivan Collendavelloo in Constituency No. 19 at the last general elections. In light of this latest stand of the Electoral Commission, which had precedently ruled out any possibility of electoral fraud or any other miscalculations in the electoral process, a ruling by the Supreme Court in favour of a recount in that particular constituency seems more than plausible.

In her petition against the election of Ivan Collendavelloo by a margin of 92 votes, unreturned candidate Jenny Adebiro had focussed on the controversial use of computer rooms in the counting process, but it turned out from an official document submitted by the Electoral Commission two days prior to the hearing of the case that irregularities took place in the manual counting process itself.

Although Opposition leaders have generally been cautious and chosen not to prejudge the outcome of the petition out of deference for the Supreme Court, the avowal of irregularities in the manual counting of votes by the Electoral Commission in that particular constituency, though welcome, gives credence to the doubts expressed in Opposition quarters and by the Labour Party leader himself that somewhere along the line things have been messed up.

However, it remains to be proved that there was any deliberate and fraudulent intent to manipulate the electoral results in those constituencies where results have been contested; it would also seem that the burden of establishing the necessary proof of fraudulent intent falls squarely on the shoulders of petitioners, which may prove to be an extremely arduous task.

One would recall that the Supreme Court dismissed last year the petition of Ezra Jhuboo, an unelected candidate in Constituency No 14, Savanne/Black River, who contested the operation of the computer room, which he alleged to have formed part of the counting process, as well as probable irregularity in that same exercise. Justices G. Jugessur-Manna and D. Mootoo ruled that Ezra Jhuboo “failed to prove by way of cogent evidence on a balance of probabilities that there was any connection between the computer room and the physical manual counting process… and the final results announced”. They also dismissed the “alleged opacity surrounding the computer room”, which would have impacted “the veracity of the figures derived from the manual counting process” as well as the allegations of probable irregularity in the counting exercise and the computation of votes. As for the latter point, Justices Jugessur-Manna and Mootoo spelt out, drawing on previous judgements, namely Rivalland v Chaperon [1953 MR 300], and Seedoo v The Returning Officer for Ward 4 of the Municipal City Council of Port Louis & ors [2013 SCJ 290] that “the onus is on the petitioner to bring cogent evidence and material facts to prove on a balance of probabilities that there have been mistakes committed in the counting of votes”.

Whatever the ultimate outcome of the petition of Jenny Adebiro, and even if it is not going to alter the ‘rapport de forces’ presently prevailing in the Assembly – and for that matter neither will the other petitions awaiting a hearing by the Supreme Court challenge the government’s comfortable parliamentary majority, there are many side questions that may befuddle ordinary laymen and concerned citizens

a. Why were certain documentary summaries of manual vote counts disaggregated by counting room, and their comparison with EVM output, as alleged in the press kept under wraps?

b. We will abstain from further comment on the changes to our electoral counting through the novelty of uploading manual tallies onto a computer in a computer room, where some candidates but not all, had clearly privileged access. It added a new processing layer for which we would have expected a more transparent and fullsome vetting procedure.

c. The present case for which final judgement is being awaited, concerns the credibility (or lack thereof) of the manual counting process even before their controversial computer uploading. In the face of the Electoral Commissioner’s avowal that there were such irregularities in manual counting and tallying that the process was obviously tainted and required a full recount, are those twin institutions in a position to still vouchsafe the integrity of electoral counting elsewhere, and, in particular, where margins are narrow between the last returned and the best unreturned candidates?

d. Accessorily, surprised observers may wonder why the Electoral Supervisory Commission, did not on its own volition do a recompilation and verification in those cases where the petitions were filed two years ago. That might have revealed simple gross counting errors even if not necessarily malicious or deliberate far earlier than the two years we are witnessing today.

e. What is regrettable is the long delay in the determination of election petitions for different reasons and not entirely attributable to the Supreme Court’s approach towards electoral petitions. This is an unacceptable flaw in such a vital element of our democratic space and should be addressed.

There are many Commonwealth countries including India and several African nations, where pleas against different aspects of the voting process are heard and disposed within weeks or months. Even in the UK there are lessons to be drawn in this respect. The May 1, 1997 election of Member of Parliament for Winchester, Mark Oaten (Liberal Democrat), contested by the Conservative Party candidate Gerry Malone, was declared void five months later, on 6 October 1997, by Lord Justice Brooke. Another legal challenge by the defeated Independent Rodney Connor (who lost by four votes and lodged a petition seeking a recount) against Sinn Féin MP Michelle Gildernew’s win in the Fermanagh and South Tyrone constituency was rejected by Northern Ireland’s Lord Chief Justice on 22 Oct 2010 – one month after the case began on 13 September 2010.

One interesting point to note is that pending the determination of the legal challenge against MP Michelle Gildernew’s general election win by Rodney Connor in the Fermanagh and South Tyrone constituency, Gildernew along with her Sinn Féin colleagues abstained from taking her seat at Westminster. Can we see that happening here?

* Published in print edition on 14 January 2022