10th Constitutional Amendment case   |10 May 2023

Constitutional court dismisses application for leave to appeal its January ruling on recusal of judges

The Seychelles Constitutional Court yesterday dismissed an application brought by the Seychelles Human Rights Commission, the Ombudsman and the Bar Association of Seychelles against the court’s ruling of January 24, 2023 that dismissed their initial petition requesting for the panel of justices to recuse themselves from the 10th Constitutional Amendment case.

In its ruling in January, the Constitutional Court comprising Chief Justice Rony Govinden, Justice Mohan Burhan and Justice Brassel Adeline had said the motion for recusal of the judges from hearing the petition, challenging the constitutionality of the 10th Constitutional Amendment “was frivolous and vexatious and an abuse of the process of this court”.

The petitioners ‒ the Seychelles Human Rights Commission, the Ombudsman and the Bar Association of Seychelles ‒ had filed an application for leave to appeal the ruling of the Constitutional Court. Yesterday this was also dismissed by the three judges, citing the petitioners have the Court of Appeal as recourse.

The petition was brought in September 2022 by the three entities against the Speaker of the National Assembly, the country’s president, the Attorney General representing the Seychelles government and the Attorney General.

It followed the enactment of the 10th Constitutional Amendment that came into force on June 14, 2022, empowering the Seychelles Defence Forces to carry out internal law enforcement in Seychelles outside the context of a public emergency.

The petition had argued that the 10th Amendment was unconstitutional because it undermined the democratic protections afforded by the Constitution, and had been notoriously controversial since 1977, in reference to reports of human rights violations during the Truth, Reconciliation and National Unity Commission (TRNUC) investigation.

A joint press release by the three petitioners issued in September last year, stated that the recusal of the judges of the Constitutional Court was also sought in view of a press statement issued by State House on the day the amendment act was assented to, which reported that the president had thanked the judiciary (specifying both the Supreme Court and the Court Appeal) for their involvement with the 10th Amendment and also of evidence later made public of a controversial land transaction between the government and the chief justice.

The recusal application had therefore argued that the judges' ability to impartially adjudicate the constitutional dispute over the 10th Amendment has been compromised.

The petitioners' submission to the court had argued that the recusal application must be heard by a judge unconnected with the dispute and who, in the circumstances, can only be a special judge appointed under the Constitution for that purpose.

In its ruling in January this year, the Constitutional Court had cited several cases to support its decision, stating that disqualification of the judges was being “sought without any regard to the judges’ oaths of office and as already stated without giving any opportunity to the judges and justices to provide their views regarding recusal sought”.

The court ruled back then that the “recusal rules were made for situations where recusal of a presiding judge or a bench is sought not where the recusal of all current judges and justices in the Supreme Court and the Court of Appeal is sought. Otherwise, the issue of fair hearing arises as it is not possible to give the opportunity to all the judges and justices to give their views under Rule 5 prior to the recusal motion given that the petition and application have impugned all current judges of the judiciary”.

It further added that “the appointment of an ad hoc or temporary judge will ultimately have to be made by the president, one of the respondents, which will lead to procedural irregularity”.

It also ruled that the “motion appears to be frivolous and vexatious and an abuse of the process of this court and it is dismissed on this basis”.

Patsy Canaya