For Free and Fair Elections


In a 22-page judgement, an unusually short one according to legists, the Law Lords of the Judicial Committee of the Privy Council have confirmed that the Supreme Court ruling relating to the election of Pravind Jugnauth and of his two running mates at the 2019 general elections, namely Leela Devi Dookun-Luchoomun and Yogida Sawmynaden was not flawed. The electoral petition lodged by unreturned candidate Suren Dayal, submitted within the specified timeframe (21 days), as prescribed by the Representation of People Act (1958), has taken almost four years to be resolved. In August 2022, the Supreme Court of Mauritius had made a number of findings of fact and, on the basis of those findings, dismissed the petition on all grounds. The appeal to the Privy Council has similarly been dismissed on all grounds.

Mr Dayal’s allegations referred to promises made by Pravind Jugnauth during the election campaign, namely to increase the basic retirement pension, to accelerate forms of public sector pay and terms, and to pay one-off performance bonuses to police officers, firemen and prison officers — all of which, in his view, constituted bribery as defined in the Representation of People Act, Section 64, which deals with “Bribery and treating”. Suren Dayal also alleged that food, drink, and entertainment provided at an event organised by the Ministry of Social Security, at which Pravind Jugnauth spoke, constituted treating.

As regards the first count in Mr Dayal’s appeal in relation to bribery, the legal reasoning applied by the Privy Council and based on its interpretation of the relevant section of the law and the findings of facts of the Supreme Court has brought it to conclude that ‘the mere fact that a promise is made to the electorate that represents money, and is designed to win votes, does not mean that an act of bribery has been committed’. That, according to the Law Lords, would constitute ‘normal electoral campaigning’. The Privy Council goes on to caution that ‘whether there has been illegal bribery or treating will always be a question of fact and degree. In some cases, it will be obvious that bribery has taken place. In others, it will be necessary to consider all of the relevant facts and the surrounding circumstances in detail. There is no hard and fast rule or test. Rather, a flexible approach, tailored to the facts of each case, is required.

The concluding remarks on this count, which may be perceived by Opposition parties and concerned citizens as a green lighting of inappropriate electoral campaigning in recent and possibly repeated in future electoral campaigns, unless checked by appropriate amendments to electoral laws, may appear to go counter to the principle of free and fair elections as understood in the local context. The Law Lords state: ‘The literal interpretation of the Act advanced for Mr Dayal would make it impossible for any candidate to campaign on a general policy that would provide a financial benefit to a group of voters (such as taxation). This would produce absurd results and undermine the principle of free and fair elections. A court will be slow to find that a political candidate is guilty of bribery without cogent evidence to that effect, particularly when they have campaigned in support of a party manifesto commitment.’ The curt conclusion of the Privy Council with regard to the allegations of treating was that ‘there was no evidence that any voter was corrupted. ‘The event in question took place well before polling day and the food and drink was provided by the Ministry of Social Security (…). It was an annual event that was attended by voters from all over Mauritius, not just those in the individual constituency.’

What all this means is that in light of the conclusions of the Privy Council in this much-awaited judgement, the country will very likely be served next time round with the same ‘normal electoral campaigning’ as obtained in the 2019 and earlier elections. This means that what could appear to be ethically reprehensible in terms of electoral promises would be not only entirely legal but also “politically correct”, even if the parties in power and its candidate were to use State resources and the patronage of governmental institutions to “treat” voters during official ‘eat-and-drink’ parties. What it also means is that the MBC-TV – and the abuse perceived to have been made of it but not canvassed before the Privy Council -, which has been transformed by successive governments into a formidable propaganda machine, unequalled in its reach all over the island, and has become the best political agent for parties in power, will operate unhindered and unabashedly. So much for free and fair elections.

The fact that under our Representation of the People Act, predating our Independence, such cases and indeed mere demands for a recount as in the constituency No 15 petition, have taken four long years, in the latter case with a decision that the case be heard all over by a new judge (because the previous one had retired), has not come under the scanner of either the Supreme Court or the Privy Council. Neither was the strict observance of a 21-day room to file an appeal or a petition. Nor were matters not canvassed like the thousands of electors who, having been struck off the electoral register, failed to verify in the limited time slot granted to them. This judgement lays to rest the issue of campaign pledges, but it beholds our lawmakers to make amends regarding the Representation of the People Act and ordinary citizens to use their judgement in deciding between alternative manifestoes and their impact.

Mauritius Times ePaper Friday 20 October 2023

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