Seychelles Constitutional Court ruling declares sections of the Public Order Act are unconstitutional

The Seychelles' courts building 'Palais de Justice' at Ile du Port. (Seychelles News Agency)

(Seychelles News Agency) - The Constitutional Court of Seychelles has declared as “unconstitutional” certain sections and provisions of the Public Order Act (POA) 2013.

That is the unanimous decision of four Judges who delivered their ruling this morning, on the matter that has been before the Court since March last year.

The new Public Order Act repealed the previous Public Order Act 1959 following the electoral reform process which started in November 2011.

During the process, the POA was singled out by stakeholders as a piece of legislation that needed to be reviewed and subsequent recommendations presented to the government for the eventual implementation.

Consultation on the matter involved members of the Electoral Commission (EC), representatives of political parties, the civil society as well as a representative of the Office of the Attorney General and the Commonwealth Secretariat.

The electoral forum also sought the contribution of the general public through regional consultative meetings in the districts of the three main Seychelles populated islands of Mahé, Praslin and La Digue after which all recommendations were presented to the Seychelles President James Michel in July 2012.

It was on December 6, 2013 that the Seychelles National Assembly approved the Public Order Bill 2013 and enacted it into law as the Public Order Act, 2013 which came into effect as it was published in Official Gazette on January 6, 2014, after it was assented by the President.

Subsequent to that, two registered opposition parties, the Seychelles National Party (SNP) and the Seselwa United Party (SUP) voiced out their objections claiming that the new POA had “rejected all recommendations of the Electoral Commission without any consultations with them or with the Electoral Reform Commission.”

The claim was also made by other parties leading to two cases being filed before the constitutional court against the POA.

The first case presented on March 14, 2014, was by three petitioners: the Seychelles National Party and the Seychelles United Party together with a civil society organization, Citizens Democracy Watch. They were challenging the constitutionality of sections 3(1), 3(2), 6, 8, 11(1), 12, 24 and 29 of the Act.

The second case was filed on March 27, 2014 by Viral Dhanjee, a Seychellois citizen who came to be well-known when he attempted to enter the 2011 presidential race, and was disqualified by the electoral commission for not meeting the set criteria.

Dhanjee argued that the entire Act was unconstitutional due to the sheer extent to which it contravened the Constitution of Seychelles.

The ruling delivered this morning by the Presiding Judge, acting Chief Justice Durai Karunakaran, and Supreme Court Judges Bernadin Renaud, Gustave Dodin, and Crawford Mckee found a total of 18 sections and subsections of the act to be unconstitutional, citing that they violate a particular article of the country’s constitutions.

These “unconstitutional sections” have been declared void, or not legally binding.

“Two cases of the same nature joining certain similar issues were brought before the Court and, by agreement of Counsel for all the parties involved, were heard together and the Court has drawn up only one judgment addressing the issues raised in both applications,” reads the judgment.

SNP, SUP and Citizens Democracy Watch were being represented by Lawyer Anthony Derjacques while Dhanjee’s attorney was Alexia Amesbury.

One of the lawyers, Derjacques has expressed satisfaction with the judges’ ruling.

“…the constitutional court has been extremely progressive and has applied best constitutional standards worldwide and has prevented a law that hinders people’s rights in Seychelles from being implemented,” he said in an interview with SNA.

Some of the sections which Derjacques said was very important which the Court found to be unconstitutional include Section 3, which allows the Commissioner of Police to be subject to general or special directions from the Home Affairs Minister, as well as section 5 through section 9 which tightly regulates public gatherings, processions and rallies.

Section 24, which states that the President has the power to impose a curfew, meaning that no person would be allowed outdoors between prescribed hours, and section 29 which allows for the seizure of camera footage of law enforcement activities and officials were also both deemed to violate the provisions of the constitution.

Expressing herself on the outcome of the case Amesbury said there are two main rights that have been most violated by sections of the POA, that were being challenged.

“The two rights that have been most violated is article 22 and 23 which is the freedom to assembly and the right to freedom of expression…If a country does not have those two rights it cannot call itself a democracy because those two rights are fundamental and they are cornerstones to a democracy,” said Amesbury in an interview aired by the national television, the Seychelles Broadcasting corporation (SBC) this evening.

One area however, where the Judges did not rule in favour of the petitioners relates to the appeals board, which consists of five members appointed by the president to hear appeals against the decisions of the Police Commissioner. The Judges’ rejected the petitioners’ claims that the board was neither impartial nor independent.

Derjacques has now recommended that the Electoral Commission’s initial inputs during the stakeholders consultations should be reconsidered, to put in place a new and modern public order act.

For the Attorney General who was representing the government in the case, the ruling has left them with two options.

“Either we go to the National Assembly and ask for a revision and amendment of the Act to reflect the decision of the Constitutional Court or we appeal before the Court of Appeal…the judgment is quite lengthy, 78 pages long and written by four judges, so we need time to analyze it, especially on the legal standings. But at the moment our options remain open,” Govinden told SNA.

“The ruling demonstrates that there is democracy and good governance and separation of powers and that the Constitutional Court is playing its role as the court that is there to interpret the Constitution and if it feels that a law contradicts the constitution it has every right to rule that such and such sections are unconstitutional,” he added.

The Public Order Act 2013 consists of 39 sections of law.

The act was also criticized by the US government during the visit of the principal deputy assistant secretary of the Bureau of African Affairs in the US Department of State to the Indian Ocean archipelago in April last year.

Story updated at 9.14pm