‘The Electoral Commission took upon itself to place computers at all counting centres without the support of any rules or regulations. What next tomorrow?’

Ezra Jhubhoo’s electoral petition dismissed

By Lex

The dismissal of Ezra Jhuboo’s electoral petition for a recount in Constituency No14, may have repercussions for other recount petitions, although each case rests on its own merits. However, the decision by the ESC to have recourse to a computer room for updating vote tallies, without informing candidates, a decision upheld by the two judges, has raised eyebrows and some serious issues. Lex shares his legal perspective below.

* The Supreme Court judgement, delivered on 30 Aug 2021, which has dismissed the petition of Ezra Jhuboo, an unelected candidate in Constituency No 14, Savanne/Black River, would seem to have set a trend: it would appear that the other 10 or so electoral petitions are likely to be dismissed, isn’t it?

Yes and no. Facts may be different in each case. However other judges would not lightly overlook the reasoning given in the Jhuboo judgment. There are other petitions where recounts have been asked for. There is nothing sinister in ordering a recount as this would reassure the public and the candidates that the counting was done honestly and in a transparent manner, particularly when the margin of vote difference was so small. Possibly all the petitions asking for a recount on the same grounds as that of the Jhuboo petition may be thrown out by the other divisions of the court.

* 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. There does not seem much scope here for the petitioner to appeal this judgment. What do you think?

The court ruled that there was no correlation between the manual counting and the figures fed in the computers. According to the court, the computes were not part of the counting process. Why the hell then were computers brought in?

* The contention of the Electoral Commission was that the “final results did not come from any computation made by the State Informatics Ltd or by any person or process in the alleged computer room”, and that the computer room was set up as “une mesure administrative”… to “facilitate the dissemination of information to the public” from inputs of non-official provisional figures. What’s your take on that?

Was it necessary to have computers to disseminate information? How was information disseminated in the past or during the 2014 elections?

* As regards the alleged failure of the Electoral Commission to inform candidates of the presence of the computer room, an issue that had been flagged by the opposition parties to contest the legality of the 2019 general elections, although the judges notes that any such failure is “of serious concern as it unnecessarily creates a situation whereby doubts as to the integrity of the counting process may arise”, it concludes however that “failure to inform the candidates of the computer room is not per se a reasonable justification for a partial recount in the absence of any valid ground for a recount of the ballot papers…”. How do you react to that?

The holding of elections including the counting process must be transparent. How can we say that the computers were not part of the counting process if figures were being fed in them? Why hide from parties and candidates that such a novelty was being brought about in the counting process? Failure to inform candidates, irrespective of parties, of the process in place on the day of counting might be viewed as illegal, irrespective of the nature of the use made of the computers. The relevant question that should be addressed is why were candidates not informed beforehand of the presence of computers? Isn’t that by itself suspicious and open to speculation?

When manual counting is done, candidates and/or their agents are present to witness the counting. Were they present in the computer room? Why was the information sought to be disseminated not communicated to the candidates first?

* There is also the point made by Darmajai Mulloo, Chief Electoral Officer, before the Court that “partial results are not regulated by any enactment but still they are announced by the Returning Officers… and in the same manner, the computer room could be set up in the absence of any rules”. What this would suggest is that the setting up of the computer room was therefore perfectly in order, right?

There is no parallel whatsoever. Partial results are a key feature of the elections since 1948 and they are declared following an open and transparent manual counting. If the Chief Electoral Officer’s contention is considered a valid interpretation of the law, then at the next elections there may be additional systems, procedures and processing that may be put in place without any need for rules and regulations to do so. Are we living in a country supposedly committed to the Rule of Law?

* Justices Jugessur-Manna and Mootoo have spelt out, drawing from 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”. Rightly so, but one could also argue that the circumstances and context have changed with the introduction of electronic voting or counting?

Whilst previous judgments should be considered, there is also a need to take into account developments, both societal and technological, that have occurred when considering the facts of an election petition.

* The Supreme Court rejected the petition on the ground that the petitioner “…failed to prove on a balance of probabilities that the alleged opacity surrounding the computer room has in any manner affected the manual counting process, the recapitulation exercise so as to undermine the final results announced…” One could argue as to how the petitioner could provide proof of mistakes or irregularity when he did not have access to the computer room?

How could the petitioner have counter-checked what figures were being fed in the computers if he was not allowed access to the room where the computers were kept? Besides, why were candidates not informed beforehand that figures would be fed in computers? At least they could have made observations or protested. All this smacks of irregularity…

* But to go as far as to suggest that the Electoral Commission changed the rules of the election process along the way in Constituency No 14 with the setting up of the computer room at the last general elections would amount to putting into question the integrity of the election process, isn’t it?

No. The electoral Commission did not change rules or regulations. It took upon itself to place computers at all counting centres without the support of any rules or regulations, without informing candidates and even denying them access to the room. What next tomorrow?

* Published in print edition on 3 September 2021

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