Election petition in N°10: one step forward, two steps back

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The election petition of Labour Party leader Navin Ramgoolam in constituency N°10 faced a fresh reversal when his argument against the Mauritius Broadcasting Corporation (MBC) was rejected by the Supreme Court. The question now is, how much of Ramgoolam’s election petition still stands?

The 55 candidates

The petition of Labour Party (LP) leader Navin Ramgoolam, contesting the 2019 election results in constituency N°10 (Montagne-Blanche/ Grand-River-South-East) faced a fresh reversal on November 19, after the Supreme Court rejected his argument against the Mauritius Broadcasting Corporation (MBC). This ruling came after MPs Vikram Hurdoyal, Zahid Nazurally and Sunil Bholah on January 15, this year, launched a two-fold legal objection to Ramgoolam’s petition: the first being that it contained a number of allegations against the MBC and the Prime Minister Pravind Jugnauth without including them in the petition; and secondly, that Ramgoolam’s petition also made the mistake of not including 55 out of the 66 other candidates, who stood in N°10 and who would be affected by the outcome of Ramgoolam’s petition. 

First, on the question of the 55 candidates in constituency N°10 that were missing from Ramgoolam’s election petition. The argument from Hurdoyal, Nazurally and Bholah’s lawyers was that, since the outcome of Ramgoolam’s petition would affect them, not including them in the petition was “fatal” to the petition. Now, Ramgoolam’s petition included his unsuccessful LP running mates, Reza Saumtally and Jim Seetaram, MMM’s Vinay Koonjul, Melanie Marie Lucia and Aktar Parvez Sadul as well as two independent candidates, Aniketh Ramgoolam and Pravesh Ramgoolam (to make the point that the presence of these two on the ballot could have confused voters and possibly diverted votes from Navin Ramgoolam). Not named in the petition were 55 other candidates from smaller parties and independents contesting this election. 

On this point, the Supreme Court did not buy the argument from Hurdoyal, Nazurally and Bholah that this was problematic for Ramgoolam’s petition. On November 19, the court argued that these 55 candidates “have no interest in the matter and their rights will not be affected by the decision of this court taking into account the low amount of votes in their favour compared to the first eight candidates”. Therefore, Ramgoolam not including them in his petition, the court decided, “is not fatal inasmuch as they are neither interested parties whose interests are directly at stake by the outcome of the election petition nor are they ‘affected parties’. Their presence is not essential for us to determine the issues raised in the election petition”. In other words, the votes of those 55 candidates not included in Ramgoolam’s petition were so low that it would not make any difference, whichever way the petition is decided. 

Indeed, according to the official results in constituency N°10 in 2019, although those 55 candidates collectively got 6,234 votes, individually, their results were paltry, ranging from the 728 votes won by Gerard Didier Jean Pierre of 100% Citoyens to the mere 18 votes won by independent candidate Narainduth Kalawon.

The reversal on the MBC

However, if Ramgoolam’s case managed to beat back the challenge regarding the non-inclusion of the 55 other candidates, the point proved pyrrhic since his case lost out on the same point when it came to the Mauritius Broadcasting Corporation (MBC) and Prime Minister Pravind Jugnauth, leader of the MSM – the senior party in the Alliance Morisien coalition. The parts targeted by the legal team of Hurdoyal, Nazurally and Bholah were paragraphs 14 to 21 of Ramgoolam’s petition. In his petition, Ramgoolam stated that Jugnauth had used the MBC “before and during the election with the sole purpose of unduly influencing the electors to vote for the members of the Alliance Morisien”. The petition listed the evidence of the MBC’s alleged bias in favour of the government: airing a segment on its prime time French news bulletin of October 19 and 20, 2019, purporting to show that Ramgoolam had “misappropriated funds from his party for his personal use”; the Electoral Supervisory Commission rapping the MBC on its knuckles with a communique on October 29, over its coverage; Somduth Dulthumun’s press conference on November 5, 2019, allegedly, Ramgoolam’s petition argued, “tried to create a division between the Hindu and Muslim communities in order to deflect votes in favour of the candidates of the Alliance Morisien” and refusing to air a reply to Dulthumun by Rajendra Ramdhean, then-president of the Mauritius Sanathan Dharma Temple’s Federation. The MBC, Ramgoolam’s petition insisted, was part of “an orchestrated campaign masterminded by the minions of the Alliance Morisien and its leader at the MBC to give the said Alliance Morisien an unfair advantage”. 

To decide this question, the Supreme Court reached back to a decision on February 3, 2017, in the case of the Front Patriotique Rodriguais (FPR) against the electoral commissioner for not allowing the FPR to put its candidates on a party list to allow its candidates to stand a chance to get elected via proportional representation seats, without however, putting up any candidates to stand for regular seats in elections to the Rodrigues Regional Assembly (RRA). The reason the FPR lost that case was because it did not include the three other parties in Rodrigues who had contested elections to the RRA with the Supreme Court arguing that it could not decide a case that affected them “behind their backs and without giving them any opportunity to take a stand”. 

Similarly, in Ramgoolam’s petition, although the 55 other candidates would not be affected by the decision on the petition in any meaningful sense, given that the MBC and Jugnauth’s use of it formed such a big part of the case, not including either in the petition was a problem. This part of Ramgoolam’s petition concerning the MBC “cannot indeed be decided behind the back of the Prime Minister and the MBC, as doing so will be tantamount to leaving the onesided version of events of the petitioner (Ramgoolam -ed.) unrebutted,” the Supreme Court argued. Normally, this would not be that much of a problem, but since section 45 of the Representation of the People Act sets a time limit of 21 days after an election to submit a petition, it would be impossible, legally speaking, to just include the MBC and the prime minister into it now. Hence, Ramgoolam’s election petition failing to include the MBC and Jugnauth, “is accordingly fatal” to those parts of the petition talking about them. Consequently, the Supreme Court chucked out paragraphs 14 to 21 of Ramgoolam’s petition that was the crux of the LP leader’s case against the MBC in his petition.

Other reversals

The collapse of Ramgoolam’s case against the MBC follows earlier reversals this year when the court dismissed other arguments that Ramgoolam’s legal team attempted to make to buttress their petition. Take the point that Ramgoolam’s petition made about electors not being able to get onto the register of electors for N°10. To argue its case, the petition in paragraph 25 took the example of one elector who after meeting with officials from the Electoral Commissioner’s Office and filling out a form to be registered to vote in the 2019 election in N°10, “yet her name was not on the register, and she was not allowed to vote”. Taking this as an example, the petition argued that “it is impossible to fathom the degree of error marring this process, which has had a direct impact on the votes cast at the last elections including in constituency N°10”. 

When asked to substantiate this point in court, Ramgoolam’s legal team came up with the name of Bibi Nassima Arlando. When it turned out that Arlando was registered as an elector in constituency N°10 for the 2019 elections – elector number KJB 149 – Ramgoolam’s legal team argued that it had made a mistake in stating that she was not registered; what Ramgoolam meant to say was that “Mrs. Bibi Nassima Arlando, despite coming to vote very early in the morning, could not vote because somebody else had already voted on her behalf and she had not given anyone any proxy to do so”. On July 28, this year, this point of Ramgoolam’s petition about electors not being able to register to vote for the 2019 elections in N°10 collapsed in court and was struck out by the Supreme Court. 

That same judgement also struck out a number of other arguments that the LP leader had made in his petition. In paragraph 34 of his petition, Ramgoolam stated that “the returning officer should and ought to have made known to the candidates the number of ballot papers which he had been provided with and the number of ballots distributed to the various polling stations”. Not making this information available, the petition argued, cast doubt on the election in N°10. What the Supreme Court found was that the number of ballot papers in each voting room were available at the office of the senior presiding officer at every polling station and that was Ramgoolam’s “responsibility to scrutinize the data which was readily available and accessible in the office of the senior presiding officer, had he taken the trouble to do so”. And so went another argument made in Ramgoolam’s election petition. 

Yet another argument in Ramgoolam’s petition that has not survived in court is about the transportation of ballot boxes to the counting centre. This refers to paragraph 39 in Ramgoolam’s petition which states, “a number of lorries left the polling stations without any escort of the agents of the petitioner, thus casting serious doubts as to the manner in which the whole process was carried out and thereby entertaining serious fears that the ballot boxes may have been tampered with during the transport exercise”. Replying to the petition, Electoral Commissioner Irfan Rahman stated that LP ‘lorry agents’ were allowed to go on all lorries, except for one carrying sealed ballot boxes from Grand-River-South-East Government School, Ernest-Florent Government School and Sir Satcam Boolell Government School. But this lorry too was closely followed by Ramgoolam’s agents in their own cars and at the time, neither Ramgoolam nor his agents complained of not being allowed to get on lorries carrying ballot boxes. Mid-hearing, Ramgoolam’s argument seemed to change from his agents not being allowed onto the lorries to the argument “that some agents were asked to alight on the way to the counting center”. Since agents being kicked off these lorries was not in the election petition, this new argument was thus rejected by the Supreme Court.

What’s left?

With so much falling apart within the courtroom, the question is what is left within the election petition for constituency N°10? The ruling this month and the earlier one in July have taken a lot of steam out of the petition and laid to rest a lot of the vim and vigour that preceded the petition being heard in court. 

The November ruling that takes out paragraphs 14 to 21 of the petition pretty much lays to rest arguments in Ramgoolam’s petition about the misuse of the MBC while the July decision, either takes out, or rejects further elaboration by Ramgoolam’s lawyers, when it comes to the way the register of electors was compiled by election officials (paragraphs 22 to 30 of the petition); communication about the number of ballot papers at polling stations (paragraphs 34 to 37 of the petition) and the argument about transportation of ballot papers to counting stations (paragraphs 39 and 40 of the petition). With so much meat having fallen off the bone, the question is what is left? What is still there is the choice of the election date of the 2019 elections (paragraphs 31 to 33 of the petition) and the use of the ‘computer rooms’ in the 2019 polls. 

The choice of election date has hardly been a clinching argument in other petitions: in many, it was simply removed as “irrelevant” to demands for a recount, as was the case in the petitions of Anil Bachoo, Ezra Jhuboo and Jenny Adebiro. And even in petitions where this point was left in, such as that of Lormus Bundhoo, that did not stop the latter from quietly withdrawing his own election petition in court last week. 

Or take the example of the ‘computer room’ argument. This too is looking increasingly like an uphill task, especially after the verdict on Ezra Jhuboo’s election petition on August 30, this year, where the Supreme Court ruled that there was “absolutely no merit” in Jhuboo’s petition, and that when it came to the crux of his case (the ‘computer room’), there was no evidence that the ‘computer rooms’ had any effect on the final result of the elections that came out of the manual counting of the votes. Aside from these, what does remain in Ramgoolam’s petition, and that the court has yet to pronounce itself on are ballot papers found after the elections outside polling stations and Ramgoolam’s allegation that ballot papers were printed by an outside company. Only time will tell whether these arguments will have better luck…

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