Court of Appeal rules in 10th Amendment case |21 December 2023
The Seychelles Court of Appeal (SCA) on Monday granted permission to the Seychelles Human Rights Commission, the Ombudsman and the Bar Association of Seychelles to appeal the refusal of the judges of Constitutional Court (CC) to recuse themselves from the hearing of the Petition filed jointly by those organisations in September 2022, challenging the constitutionality of the 10th Amendment to the Constitution.
The Petitioners had sought the recusal of all the Constitutional Court judges because of concerns about the judges’ ability to impartially decide the dispute over the 10th Amendment, arising principally from a State House press report that the judiciary had participated in the preparation of that amendment.
The Petitioners therefore requested that their recusal application be decided by a judge unconnected with the matter. The Petitioners’ application for recusal was dismissed by the challenged judges themselves, as was a further application seeking the Constitutional Court’s permission to appeal that decision.
The Constitutional Court judges found that the Petitioners’ application for permission to appeal was procedurally erroneous. So, it became necessary for the Petitioners to seek permission to appeal directly from the SCA itself.
The SCA delivered its judgment on this application on Monday. (See the judgement at: https://seylii.org/akn/sc/judgment/scca/2023/58/eng@2023-12-18 )
It found that in seeking permission to appeal, the Petitioners had followed the correct procedure and that “The indicative grounds of appeal raise significant constitutional issues of great public interest. They are arguable and not frivolous. They have a reasonable chance of success for the Applicants.”
Furthermore, the SCA reiterated that “The judiciary must ensure that it remains independent and that it is seen to be independent of any influence that might reasonably be perceived as compromising its ability to judge cases fairly and impartially.”
It will be recalled the 10th Amendment gives the Seychelles Defence Forces the power to carry out internal law enforcement outside a state of emergency. The Petitioners’ principal contention is that the 10th Amendment does away with the necessary buffer that existed previously between law enforcement and the President of Seychelles, also the Commander in Chief of the Defence Forces, and so undermines fundamental human rights and democratic protection under the Constitution. Now that permission has been granted, the Petitioners will shortly file their appeal against the CC judges’ refusal to recuse themselves. The appeal is expected to be heard by the SCA in one of its 2024 sessions.
Joint press release of the Seychelles Human Rights Commission, Ombudsman and the Bar Association of Seychelles