The story of our Constitution |16 June 2018
The story of how our Constitution came into being must be told. Otherwise, the next generation will not be able to appreciate its strengths as well as its weaknesses. For my part, as someone who played a leading role in its creation, today I, Paul Chow, hope I have done my part with this article.
“The Constitution of the Third Republic is a child of two parents but one was a reluctant parent. The former Secretary General of the Commonwealth, Chief Emeka Anyaoku, revealed in his autobiography, The Inside Story of the Modern Commonwealth, how just before the Commonwealth Summit in Harare, in October 1991, he approached President France Albert Rene, to discuss the prospect of restoring the multiparty system in Seychelles. That meeting preceded the Harare Declaration which was to be tabled at the Commonwealth Summit which President Rene was attending. The Harare Declaration was to re-affirm the original Commonwealth Principles adopted in Singapore in 1971 and particularly the clause that said that the Commonwealth believes “in the liberty of the individual under the law, in equal rights for all citizens regardless of gender, race, colour, creed orpolitical belief, and in the individual's inalienable right to participate by means of free and democratic political processes in framing the society in which he or she lives.”
“President Rene, Anyaoku said, ‘had informed me that he was thinking of having a referendum to establish whether or not Seychelles, which had been a one-party state since 1977 should adopt a multiparty system… I told him that if he went on with the referendum he would be accused of merely seeking ways of avoiding a multiparty system in Seychelles. Again, happily, as was the case with President Kaunda, President Rene was persuaded by my point of view. Following our discussions, Rene changed from his earlier position to maintaining that if his proposed referendum opted for a multiparty state, he would resign from the leadership of his party and country.”
That last so-called declaration of Mr Rene contradicted the one he told the Seychelles People’s Progressive Front (SPPF) Congress in April the same year. Then he said, the multiparty system would return only on his dead body. Reluctantly, Mr Rene acquiesced to restoring the multiparty system because the international community was putting pressure on him – not so much because of internal opposition.
“Upon his return to Seychelles, the president called an extraordinary congress of the SPPF where a resolution was passed to restore the multiparty system in Seychelles. Subsequently the People’s Assembly, the national parliament at the time, passed a law which set out the framework towards creating a new multiparty constitution which included an election for delegates to a Constitutional Commission. Each political party which stood in the election would be entitled to a number of delegates in proportion to the share of the votes the party received in the election. When the law came into effect in early 1992 new political parties came into existence to contest the election.
The results of the election were as follows:
Seychelles People's Progressive Front (SPPF) 58.39%
Democratic Party (DP) 33.67%
Parti Seselwa 4.35%
National Alliance Party (NAP) 1.60%
Seychelles Movement for Democracy (MSD) 0.77%
Seychelles National Party (SNP) 0.62%
Seychelles Liberal Party (SLP) 0.48%
Seychelles Christian Democratic Party (SCDP) 0.13%
“None among the other parties that contested the election alongside DP and the SPPF obtained sufficient votes to be represented on the Commission. Yet, I endorsed their participation in the constitutional process by inviting them to sit as back benchers to the official DP delegation and thus, make them part of the official Constitutional Commission.
“The official DP delegation, I can proudly say today, was probably the best and the brightest legal minds the country had at the time. They were not partisan DP supporters. They were co-opted on the basis of their educational attainment (most of them had attended universities in the West) not their adherence to our party. It is in this same spirit that I would like to see the Seychelles government conduct its affairs in the future.
“The first Constitutional Commission deliberations were conducted in camera (the public was excluded). That was the wish of the majority party. I led the DP team while Mr James Michel led the SPPF team. I was conscious that, with a majority on their side, SPPF could ram a constitution down our throats, regardless what we did. I realised too that we had just one other opportunity and that was the hurdle President Rene had placed for the referendum to approve the Constitution. It had to be approved by 60% of the votes. He did this, I believe, after he had seen the crowd that Mr Mancham pulled on the day of his return to Seychelles. It was a kind of insurance policy for him in case the SPPF did not get a majority on the commission.
“Throughout the deliberations, I was under pressure from our side to walk out, but I held on until we had the legal justification to do so. The opportunity came when the Chairman of the Commission, Mr Joseph Belmont, decided to guillotine all debates and discussions accusing our side of deliberately filibustering all discussions on all the clauses. At that point I announced that we were walking out of the meetings until such time we had guarantees that debates and discussions would not be limited or curtailed. Subsequently, the SPPF delegation went on to vote on a constitution of their own choosing.
“The official ‘opposition’ campaign for the first referendum, as I look back, should have been the eye opener for all of us. All the opposition parties came together to campaign for a no vote. There was no jockeying for positions because there were no positions to fill. The DP was the chief organiser of the campaign and I designed the strategy. I realised that the only way to jog the conscience of the otherwise quiescent electorate was to get a credible foreigner to appear on our platform to denounce the SPPF designed constitution as a fraud. Seychellois tend to be impressed more by a foreigner than one their own, living the adage that one is not a prophet in one’s country.
“The opportunity came after a visit to Washington DC, USA, when I was introduced to Professor Blaustein of Rutgers University of New Jersey. Professor Blaustein had started to make a name for himself designing constitutions for the emerging new nations of the former Eastern Europe. Professor Blaustein agreed to make a trip to Seychelles to coincide with the official 1992 referendum campaign. He appeared in two rallies and, having learnt to mouth the few words “konstitisyon pa bon” made a devastating impact. We also obtained a ringing condemnation of the proposed constitution by the eminent international human rights lawyer, Geoffrey Robertson, from his London chamber in Doughty Street.
“On the night of the results of the referendum one could see the frustrations building up on Mr Rene’s face. With the yes votes only 53.7% of the votes cast, they failed to rise above the 60% hurdle they had placed for us. After the results were confirmed Mr Rene announced publicly and live on television that “the next sessions of the Constitutional Commission would be conducted in public as well as on television and radio.”
“For the next sessions, we obtained the assistance of Geoffrey Robertson to draft our proposal. He sent one of his staff members to Seychelles to consult with us. I invited all the other political parties in the opposition to participate in the consultation. We had barely a month to prepare and Christmas was already upon us. It was, all the same, a sad day for me when Annette Georges, representing the Parti Seselwa, announced at one of the consultation meetings that her party would no longer participate with us because we did not agree to a Westminster model constitution – to provide for a Prime Minister as the head of the Government. Parti Seselwa subsequently joined together with some of the smaller parties, to form the United Opposition Party (UO) in order to oppose the Constitution that would result from our public deliberations even before it was written.
“The as-live broadcast of the subsequent hearings, starting on January 8,1993, dramatically changed the scope of multiparty politics in Seychelles at least for the next five years.
“Both President Rene and Mr James Mancham took their seats at the head of their respective party’s delegation. The proceedings were cordial and members of the public were invited to make submissions to the delegates. Many came to have their version of fifteen minutes of fame on national television. The broadcast of the proceedings each night as-live captured the imagination of the public just as the Mexican soaps then on air were doing. The streets were empty after 5pm. The impact of the broadcast was so great that the format was kept for the proceedings of the first National Assembly for the next five years.
“At the end of the deliberations, a vote was taken to adopt the new constitution and to recommend it to the people. Each member of the Commission signed his name to that document. Where is that document? The Americans preserved theirs for posterity and it is still there after more than 200 years. Where is ours?
“The agreed text was subsequently published in the government gazette and a referendum was announced to take place on June 18, 1993. The text was approved by over 70% of the votes.
“Barely had the ink dried on the constitutional document that we signed than effort started to tamper with it. Using the majority of two thirds they obtained in subsequent National Assembly elections, they railroaded a change in the structure of government by providing for a Vice-President and the controversial ‘pas baton’ clause. This time, the motive for the change was political expediency. The other change was to alter the formula to appoint proportionately elected members of the National Assembly. Again, it was politically motivated and in the interest of expediency. It was meant to prevent the then United Opposition party (UO) from gaining one seat in the National Assembly by changing the percentage of qualification for proportionately elected members from 5 to 10 percent.
“A raft of controversial laws and regulations continue to be passed by the National Assembly dominated by the SPPF, without any challenge for their constitutionality. The most controversial are the creation of the post of leader of Government Business in the National Assembly and the new pensions for constitutional appointees and MNAs. Most disturbing for me has been the manipulation of appointment process for judges, ombudsman and electoral commissioner so that the independence of these institutions, which we all approved in 1993 which the people of Seychelles endorsed in a referendum, have been undermined.
By Paul Chow