What makes the government’s picks for the Electoral Supervisory Commission so dangerous…

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Members of the ESC Dev Cowrea, Devita Peerun and Narghis Bundhun, with Chairman Yusuf Aboobaker and electoral commissioner Irfan Rahman, in a meeting with the press on November 6, 2019. © Sumeet Mudhoo

Members of the ESC Dev Cowrea, Devita Peerun and Narghis Bundhun, with Chairman Yusuf Aboobaker and electoral commissioner Irfan Rahman, in a meeting with the press on November 6, 2019. © Sumeet Mudhoo

The MSM-led government has announced new appointees to the Electoral Supervisory Commission (ESC), adding to its supporters on this body supposed to oversee elections. However, while the ESC is usually criticised for lacking heft, what is the real prize at stake here? And what makes this strategy so alarming?

1 > How the government chooses ESC members…

The government has announced the appointments of Shadmeenee Mootien and Yashvirsingh Roopun to replace Dev Cowrea and Nargis Bundhun as well as the renewal of Vedita Poorun’s mandate on the ESC. These government picks have been denounced by opposition leader Xavier-Luc Duval as “totally unacceptable”. 

Appointing political agents on the ESC, Duval argued, equates to a “stab in the back of democracy”. 

This is not the first time that the MSM has parachuted its supporters onto the ESC: in 2018, it attempted to get Sharmila Sonah-Ori in, but after an outcry from the opposition, it was forced to backtrack, but it then ended up nominating Ammanah Ragavoodoo, another lawyer close to its ranks. 

The question is, how is the government able to stuff the ESC with its own supporters? That boils down to a problem within the Mauritian Constitution that makes it different from other democracies in the region. 

Take Seychelles, for example. When it restored multi-party democracy in 1993, its constitution set up the Constitutional Appointments Authority, a five-man body with two named by the government, two by the opposition and presided over by a chairman picked by the four other members. 

This body picks people for constitutionally-sensitive posts, such as appeal judges, the attorney general, the head of the audit, the ombudsman, the public service appeal board, a committee on presidential pardons, human rights commissioners, heads of the national television network and, of course, the electoral commission. 

By contrast, section 38(2) of the Mauritian Constitution simply states that ESC members are nominated by the President “acting after consultation with the Prime minister, Leader of the Opposition, and such other persons as appear to the President, acting in his own deliberate judgement, to be leaders of parties in the Assembly”. 

In practice, former Supreme Court judge Vinod Boolell argues, “the question may be asked whether it is the president who picks the members or the Prime minister”. 

With the opposition leader clearly dead-set against these nominations, “if the leader of the opposition is consulted and then just ignored, what is the point of having such consultations? And since the ESC is so vital and the president can in his own deliberate judgment consult other parties, the legitimate question is whether he has consulted the heads of other parties, like Paul Bérenger or Arvin Boolell, who is the current spokesman for the Labour Party in the absence of Navin Ramgoolam. The selection process appears noble on paper, but it may appear quite different in practice”. 

This problem did not rear itself before because, despite the problem in the law, the restraint exercised by previous regimes prevented them from proceeding to stuff the ESC with their own cronies. “You cannot have everything provided for in a Constitution, a lot depends on the respect for democratic norms on the part of those in charge,” explains constitutional lawyer Milan Meetarbhan, “the ESC was one of the few institutions trusted by the public because of the people who were appointed to it; now in the perception of the public, a lot of these members will be seen to be lacking independence; people talk of patriotism, but playing around with institutions looking over elections is one of the most unpatriotic things one can do; if you lose trust in the electoral process, then this can have long-lasting effects as we saw recently what happened in the US”.

In May 2018, government tried to appoint attorney Sharmila Sonah-Ori (L.) on the ESC. An outcry from the opposition caused it to backtrack, but lawyer Ammanah Ragavoodoo, another of its own, came in.

2 > What are the powers of the commission?

SO now the question is, what can the ESC do that makes it an attractive prize for the government to subvert by filling it with its own supporters? As things stand today, not much. 

The ESC has often been criticised for lacking the teeth to properly control abuses by political parties at election time. Section 41(1) of the Constitution reads: “the ESC shall supervise the registration of electors for the election of members of the Assembly and the conduct of elections of such members and the commission shall have such powers and other functions relating to such registration and such elections as may be prescribed”. 

Since its founding in independent Mauritius, although the Constitution leaves the door open for the ESC to take on more roles in the running of Mauritian democracy, actually, since independence nothing much has been “prescribed” in terms of new powers for the ESC. 

At the moment, a politically compromised ESC can harass smaller parties by refusing to register them for elections, for example. As happened in 1982 when the ESC refused to register the UDM led by Guy Ollivry for the elections that year on a technicality that was overturned only after the party went to the Supreme Court. 

Or handling complaints about the conduct of political parties or that of the Mauritius Broadcasting Corporation (MBC) at election time. As happened in the last 2019 election when the Labour Party complained at the ESC regarding partisan broadcasts being aired by the MBC. Nothing happened. 

But just because the ESC exercises few powers today does not mean that it will stay like that tomorrow. “The lack of powers of the ESC is a matter of interpretation,” Meetarbhan points out, “there is nothing that prevents them from taking a much wider view of their powers within the current Constitution.” 

And indeed, proposals have come from outside the ESC looking to strengthen it: some taken seriously, others less so. “In the case of Ashok Jugnauth, the Privy Council recommended that the ESC come up with a code of conduct for elections to make sure that elections are conducted fairly,” says Boolell. 

A code of conduct was indeed drawn up by the ESC for the 2019 election, including a prohibition on parties setting up baz in different areas, only for that code of conduct to be universally ignored during the election. 

Other suggestions have been more ominous, such as a bill presented by the MSM-led government in 2019, ostensibly to regulate the financing of political parties but which was slammed by critics for trying to turn the ESC into a top-heavy bureaucracy breathing down the neck of political parties. That bill ultimately failed because it failed to get the 3/4 supermajority needed to pass through the constitutional changes that would have been required. 

More seriously, the ESC is involved in complex calculations where expertise, and not political loyalty, is what counts. 

Take for example, the Best Loser System (BLS). On numerous elections the ESC has had to use its own discretion and judgement to pull itself out of tricky situations. In the 1982 and 1995 elections, where on both occasions 60-0 results were obtained, the ESC was confronted with a conundrum: since the BLS seats were intended to ensure an ethnic balance in parliament, but no candidate lost on the winning side, how could the ESC give out BLS seats, which could only go to unreturned candidates on the losing side without affecting the overall result? 

In 1982, the ESC initially refused to give any BLS seats, until a candidate on the losing side went to the Supreme Court. The result was that the court ordered that only four BLS seats (rather than eight) be allocated. 

This pattern was followed in 1995 as well. It is not just 60-0 results that resulted in a problem for the ESC. In the 1991 elections, the MSM-MMM bloc won 57 out of the 62 seats in parliament. The problem? After giving out four BLS seats to correct for the ethnic imbalance, the remaining four posed a problem since the winning side had no unreturned candidates belonging to under-represented communities. 

Once again, the exercise was stopped after just allocating four, rather than eight, BLS seats. Such calculations require expertise and fair play at the ESC, something that cannot be done by an ESC where membership is decided based primarily on political loyalty, or one that is stuffed with cronies of the party that happens to be in power.

3 > The real prize

The real prize, however, is the Electoral Boundaries Commission (EBC) that demarcates and makes adjustments to the boundaries of the 20 constituencies on the Mauritian mainland. Rodrigues, being a self-contained island, requires no such adjustments. 

This is where the longer term strategy starts coming into view. Although the ESC and the EBC are technically two separate bodies, it is a quirk of the Mauritian system – differentiating it from other Commonwealth states – that both bodies have traditionally had the same members. 

In other words, being put on the ESC means simultaneously occupying a seat on the EBC. This is why back in 2002 the Sachs Commission recommended doing away with the fiction that these were two separate bodies by merging them into a single Electoral Supervisory and Boundaries Commission. 

That did not happen. It is at the EBC that politically-partisan nominations at the ESC can wreak the most damage. “Given the communal set-up of the Mauritian electorate, carving out parts of one constituency and putting them into another can make a difference in an election,” Boolell points out. 

This is not hypothetical, as it has happened in the past. The EBC is supposed to rejigger constituencies every 10 years. And the first time it did so was in 1976 under the rule of Sir Seewoosagur Ramgoolam. The problem is that if areas – and voters – are shifted from one constituency to another, if that is done after the registration of electors has already taken place for that year, it can result in the disenfranchisement of voters who have not been able to register anew in the constituencies where they have been shifted. 

In 1976, the EBC came out with a report proposing changing boundaries across different constituencies with an election scheduled that same year. Effectively the then-government estimated that as many as 100,000 voters in the country would have been disenfranchised during that election and so the report was ignored. 

The next EBC report came out in 1986, which amongst other things changed the boundaries in constituencies in the capital Port-Louis and in No.18 Quatre-Bornes by adding Sodnac and La Source into the constituency. 

The result? The changed boundaries, and the resulting shift in demographics in these constituencies were blamed by the MMM for firstly losing its total hold over the four constituencies in Port-Louis for the first time in the 1987 elections (where Xavier-Luc Duval was elected in No.1) and for MMM leader, Paul Bérenger, losing his seat in Quatre-Bornes, leading to him to shift to the ‘safer’ area of No.19 where he has since stood in every election. 

Ever since, changing electoral boundaries has been a controversial topic.

4 > Checks and balances

Thus far, the temptation of a government to simply gerrymander its way to retaining power has been kept in check by a simple arrangement: an independent EBC proposes changes to electoral boundaries every 10 years, which is then brought into parliament and is either accepted or rejected in toto by a simple majority with the government or parliament unable to change anything in the EBC’s recommendations. 

This has resulted in governments not bringing EBC recommendations they did not like into parliament, but on the other hand, whatever has come into parliament was drawn up by EBC technocrats whose recommendations the government could not try to change. 

“Theoretically, when it comes to the EBC reports, the National Assembly has the last word,” says Milan Meetarbhan, “but if the EBC itself is not independent and a ruling party controls both the EBC and a majority in the National Assembly, then this check and balance system does not matter because both will be perceived as being controlled by the government.” 

This is the long-game that makes the ESC’s nominations – and by extension, the EBC’s – so dangerous and allows for the prospect of gerrymandering electoral boundaries to advantage the government and disadvantage its opponents. 

“This is a very, very substantial power that the ESC and the EBC wield, and we can only surmise whether appointments are made by the President or by politicians and confirmed by the President. In other words, if it is the politicians who recommend the members to sit on these institutions, there must be a motive for that. Since honesty and integrity are presumed until the contrary is proved, we hope the institutions will function in compliance with the spirit of the Constitution,” argues Boolell. 

“They could appoint cronies anywhere they like, but when it is done in an institution like the ESC, it is much more than that,” concludes Meetarbhan, “the biggest danger anywhere in the world where such controversial appointments are made always lies in the reason why.”

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