On 14 June 2021, Judge M. I. Maghooa and Judge G. Jugessur-Manna gave out their ruling in the case of DUVAL A. C. v THE ELECTORAL COMMISSIONER & ORS. It concerns a motion for further details relating to the computing and counting of votes in the Constituency no. 17 during the elections of 2019. It was made by the petitioner, Mr A.C. Duval against two of the respondents, namely the first respondent, the Electoral Commissioner, and the third respondent, the returning officer of Constituency No 17.
The purpose of this motion was to support the petitioner’s case by providing more clarity on the way the election was conducted in Constituency No. 17. However, the judges refused to make an order for further details. They ruled that the information requested by the petitioner were irrelevant to the questions posed in the case. As such, the judges dismissed the motion, and the main case is ongoing.
To sum up this motion, Mr. Duval requested further information following the plea of the respondents. The concerns of Mr. Duval were whether the election officers had the required experience and had been adequately trained. He also requested more details on a software that had allegedly been used for counting votes. The respondents objected to provide such details qualifying the request as irrelevant and an attempt to fish for more information. The arguments of both sides are set out below.
Information relating to the training and instructions given to the election officers.
First, Mr. Duval requested for more information on the staffs involved in the election. In his petition, Mr. Duval averred that the Electoral Commissioner has appointed election officers who did not act in such capacity previously and did not receive the appropriate training. As a result, the petitioner alleged that ‘they committed many errors, and were guilty of negligence and mishaps during the counting process, thus rendering the whole process of counting of ballot papers flawed.’
In his plea, the Electoral Commissioner asserted that sufficient training and written instructions on the polling and counting process have been provided to the election officers. This led the petitioner to request more details on how many “first timers” have been involved during this election and the alleged communication of the written instructions.
The judges emphasized in their ruling that the issue is whether the electoral officers received adequate training and instruction. As such, information relating to the number of officers, or their respective names were deemed to be irrelevant. As for the issue of written instructions, the judges agreed with the submissions made by the counsels of the respondent that the petitioner ‘is only entitled to inspect the written instructions if respondent number 1 and 3 intend to adduce them in evidence.’ Since the respondent did not present the instructions, the question of inspection does not arise.
Information relating to the computing and recording of votes.
Secondly, some information relating to the issue of ‘usurpation of the role of the returning officer’ was requested. The petitioner alleged that the Electoral Commissioner bypassed the returning officer of Constituency no 17 in the choice of entity to compute and record the votes and thus, entrusted this responsibility to individuals who should not have been allowed within the precinct of the counting center. These individuals used computers with the system under their control to compute and record. As per the petitioner, these choices were illegal as they were supposed to be exclusively under the responsibility of the returning officer of the Constituency no. 17.
In their plea, the respondents averred that a software application, State Informatics Limited (“SIL”), has been developed but only for the purpose of communicating information to the public. They stated that the results of the poll were not based on figures from the software application but from the manual count which has been carried out by the returning officer. The petitioner requested, among others, for the software, the identity and address of all the office bearers of SIL at the time of the election and under the purview of which ministry did this software fall.
The judges believed the identity of the office bearers is irrelevant to the issue at hand. They further explained that the plea clearly set a defense that the software was used for communicating information to the public and not for counting votes. Therefore, they ruled that the particulars requested in these regards were irrelevant. For the above reasons, the judges refused to make an order for further details from the respondents. As the motion has been set aside, it remains to be seen how the main case will turn out.
