“If the Recapitulation of Votes form had not been made public, nobody would have been apprised of the glaring discrepancies”

Electoral Petitions & Recount

Qs & As

‘One wonders who had that bright idea to have recourse to computers for the counting process behind the back of candidates’


The case law for ordering recounts is clear that there must be some solid prima facie grounds justifying such a prayer to be accepted. In the Adebiro case at No. 19, there were such “glaring discrepancies” according to the two Supreme Court justices and accepted by legal counsel of all parties, including those of the Electoral Commissioner and the Electoral Supervisory Commission, that the outcome of a court-supervised recount became unavoidable. That such obvious anomalies and discrepancies in a vote tally summary form kept for unknown reasons confidential, went undetected is quite shocking. Lex comments on the legal aspects and consequences of this landmark judgment.

* We learn from the judgement delivered by Justices Aruna Narain and Denis Mootoo in the case Adebiro O.J. v Collendavelloo I.L. & Ors that it was Mr Mulloo, former Chief Electoral Officer and now Adviser to the Electoral Commissioner, who brought to the attention of the Court the “discrepancies” noted in the Recapitulation of Votes form. The Electoral Commissioner Irfan Rahman, in a statement thereafter, said he had “instructed his legal advisers not to oppose the prayer for recount of all valid ballot papers… in the light of the discrepancies noted”. Neither Mr Mulloo nor Mr Rahman stated when the discrepancies were discovered. That these discrepancies are now revealed, two years after the elections, suggests that there is something amiss here, isn’t it?

Of course. Not amiss, but very serious. How come that it is two years after Ms Adebiro filed her petition that the irregularities are surfacing. According to the procedure on ballot count, the votes are called aloud and inscribed on what is called a Recapitulation Vote Form. How come these mistakes were not found earlier. This is very disturbing.

* We also learn from the same judgement that the Senior Counsel for the Electoral Supervisory Commission also made a statement to the effect that the Commission “was not aware earlier of the “apparent mistake” in the Recapitulation of Votes form”. How is it possible that that Commission which, under the Constitution, has “general responsibility for and shall supervise, the registration of electors… and the conduct of elections” was not made aware of these discrepancies the more so since the election in No. 19 was being challenged?

Easy to explain. Apparently, the Recapitulation of Votes Form is a confidential document which is handed over to the Electoral Commissioner by the Returning Officer after the results are finally proclaimed. If the Electoral Commissioner and the members of the Electoral Commission had done their job properly and perused that particular form, they would have been bound to see the discrepancies.

* Why should such an important document in the conduct of the counting process and the proclamation of elected candidates be kept confidential? What could be the importance of confidentiality in this particular matter?

God knows, but it’s certainly an aberration that such a Form, which records the number of votes obtained by all candidates, should be kept confidential. Had a copy been handed over to all candidates, the discrepancies would surely have been found much before 2022.

* The alleged opacity surrounding the operation of Computer Rooms at Counting Centres should be good reason for the Recapitulation of Votes form to be made available to election candidates or their representatives, don’t you think?

Absolutely, the more so given the total opacity surrounding the computer rooms. One wonders who had that bright idea to have recourse to computers for the counting process behind the back of candidates without the latter being informed accordingly in advance of that measure. Worse still the candidates were denied access to the computer rooms.

It’s unfortunate however that in the earlier petition lodged by Erza Jhuboo the Supreme court did not find anything irregular in that decision.

* Our understanding is that Justices Narain and Mootoo have ordered a recount in view of “the glaring and unexplained discrepancies in the Recapitulation of Votes form that are on record and point prima facie to mistakes in the counting process”, and also because none of the respondents in this case, that is Mr Ivan Collendavelloo, the Electoral Commissioner, the Electoral Supervisory Commission, and the Returning Officer, objected to a recount. Without the Recapitulation of Votes form made available to the Court and the admission of discrepancies, the case might have taken a different turn, isn’t it?

Exactly. If the Form had not been made public, nobody would have been apprised of the glaring discrepancies and everything would have been deemed to be regular in the eyes of concerned parties including the Electoral Commissioner, the Electoral Commission, and their lawyers.

* This begs the question: What could have prompted the Electoral Commission to reveal at this point in time, that is on 13 January 2022 when the case (lodged on 28 November 2019) came up for hearing, the discrepancies noted in the Recapitulation of Votes form?

Only the Electoral Commissioner and the Electoral Commission alone can answer this question. They might have taken things for granted and did not indeed realise that there were discrepancies in the counting of votes. I dare not say that they kept quiet even if they had seen the irregularities.

* What could be the reason/s for Justices Narain and Mootoo to order that the recount be taken by the Acting Master and Registrar of the Supreme Court, not the Electoral Commission? Is that in the normal scheme of things?

Since the recount has been ordered by the court, the count which is still under judicial scrutiny must be supervised by a court official.

* To suggest that this case and the judgement delivered by Justices Narain and Mootoo will have an impact on the other pending electoral petitions may be farfetched, isn’t it? One should not jump the gun at this stage – unless similar discrepancies would have been noted in those constituencies and the Electoral Commission chooses to bite the bullet and state the facts as they are, right?

A recount is not granted for the mere asking. The case law is clear on this. There must be solid grounds for a recount to be ordered even if the different parties consent to such a recount.

If no prayer for a recount is made in electoral petitions, the court will not allow the petitions to be amended to insert that particular averment. The Adebiro judgment has made this clear. This is what the judges stated: “…we hold that a recount may exceptionally be ordered in this case on grounds not averred in the election petition. Our order in these very exceptional circumstances should not in any way however be construed as a licence for aggrieved candidates to enter election petitions within the prescribed delay and to later seek as a matter of course to aver or rely on new grounds outside delay.”

* Let’s assume that Ivan Collendavelloo and the other candidates whose election have been contested by way of electoral petitions are disqualified as elected candidates following recounts ordered by the Supreme Court; they might still go to the Privy Council for a final determination of the issue, right? We would then have reached the eve of the next general elections…

Any decision may be appealed to the Privy Council with the leave of the Supreme Court. However, it is difficult to see what grounds of appeal can be raised in that and the other cases.

* Published in print edition on 28 January 2022

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