What is happening with the election petition of the Labour Party leader, who is demanding the invalidation of the 2019 general election results in constituency N°10? Several arguments in his petition have changed in court and have thus been struck out. Which ones have been removed and why?

Nassima Arlando was deprived of her right to vote

In his election petition, one of the points raised by Labour Party (LP) leader Navin Ramgoolam is that at least one person had come forward to complain that, despite meeting with officials from the Electoral Commissioner’s Office (ECO) and filling out a form to be included on the register of electors for the 2019 elections in constituency N°10, “yet her name was not on the register and she was not allowed to vote”. With this example, Ramgoolam’s petition argued that “it is impossible to fathom the degree of error marring this process, which has had a direct impact on the votes cast at the last elections including in constituency N°10”. 

In Court, as it turns out, the person who could not vote was Bibi Nassima Arlando. And during the petition hearings, the reason given for why Arlando’s exclusion seemed to change as well. While Ramgoolam’s petition argued that Arlando could not vote because she was not registered, the ECO argued in its reply that Arlando was a registered voter in N°10 (elector number KJB 149). Navin Ramgoolam’s case then changed tack and argued that the petition “mistakenly stated that Mrs. Bibi Nassima Arlando could not vote because her name did not appear on the register when in fact the petitioner (Navin Ramgoolam -ed.) meant to say that Mrs. Bibi Nassima Arlando, despite coming to vote very early in the morning, could not vote because somebody else had already voted on her behalf and she had not given anyone any proxy to do so”. 

In bringing up Arlando’s case, Navin Ramgoolam’s legal team’s explanation switched from Arlando not being registered as an elector to now being prevented from voting because somebody else had used her vote instead. What happened to this argument, in paragraph 25 of Ramgoolam’s petition? On July 28, 2021, in a judgement, the supreme court chucked it out as “a clear departure” from what the petition’s argument and “introducing a new issue” long after the petition had been lodged. In other words, because of its inconsistencies in the Arlando case, this argument of Ramgoolam’s petition has collapsed and has been struck out by the Supreme Court.

The argument about transparency on the number of ballot papers

One of the major arguments in Navin Ramgoolam’s election petition concerns the number of ballot papers supplied to each polling centre in constituency N°10. In paragraph 34 of his petition, Ramgoolam argued that “the returning officer should and ought to have made known to the candidates the number of ballot papers which he had been provided with and the number of ballots distributed to the various polling stations”. By not telling the candidates, including Ramgoolam, the number of ballot papers given at each polling station, his petition insisted, “has left doubts in the minds of the candidates as to the faithfulness in the communication of the actual number of ballot papers that had been made use of at that election”. 

This time, it is not Rahman, but the Electoral Supervisory Commission (ESC) that resisted this argument. The ESC’s official reply to this point: “The figures of the number of ballot papers allocated to each voting room were available for consultation in the office of the senior presiding officer at every polling station.” In its decision of July 28, 2021, the Supreme Court seemed to agree with the ESC when it argued that it was Ramgoolam’s “responsibility to scrutinize the data which was readily available and accessible in the office of the senior presiding officer had he taken the trouble to do so”. In his written case, Ramgoolam’s legal team admits that, while this information may have been available at the senior presiding officer’s office, nonetheless the returning officer in No10 should have “imparted the information to each candidate for transparency’s sake”. 

This phrase “for transparency’s sake” is what the ESC – and the supreme court – had a problem with. The Supreme Court stated that this phrase implied that by not telling Ramgoolam the number of ballot papers at the polling centre – information which was available, but which Ramgoolam and his agents did not check – the returning officer was not being transparent. The court pointed out that Ramgoolam had pointed to several irregularities in his petition, but that nowhere did he argue that there was a lack of transparency when it came to polling and counting. 

In fact, the only point of Ramgoolam’s petition that points to a lack of transparency is about the ‘computer rooms’ used at the counting centre. As a result, the Supreme Court struck out Ramgoolam’s argument that the returning officer should have told him about the number of ballot papers supplied to each polling centre for transparency’s sake. This argument too has been struck down by the court and will not figure when hearings into Ramgoolam’s election petition continue later this month.

Change in polling stations

Ramgoolam’s petition has enjoyed more success when it comes to his argument that the change in the location of polling stations in No10 for the 2019 elections affected the result. In paragraphs 32 and 33 of his petition, Ramgoolam argued that changing the polling centres caused “general confusion” where people used to voting at a particular polling centre couldn’t do so and that information about this change was not given out properly. To make this point, the former prime minister’s legal team came up with 12 voters who had this problem: Mary Joyce Clement Motou, Afzal Abdool Mohammodally, Seeroo Aboo Twaleb, Salman Gunnoo, Isad Eadally, Sorayah Eadally, Soubash Seevlall, Nadine Appadoo, Marie Annabelle Christelle Bien Aimée, Donald Moheet, Kawshar Mohammodally and another Afzal Mohammodally. These, Ramgoolam’s legal team argued, were just some of the people – who were supposed to vote in Bel-Air SSS – who faced this problem. The electoral commissioner tried to argue that based on the addresses of these 12 people, “none of them would have voted at Bel-Air SSS”. 

On this argument, the Supreme Court sided with Ramgoolam to keep it in the case because the court argued that these 12 people were just some of the people given by Ramgoolam as examples, meaning it was possible there were others that could have been affected by a change in polling centre. Unlike the point of people not being able to vote because they weren’t registered – in which case Ramgoolam’s legal case rested wholly on the example of Arlando – this point is staying in Ramgoolam’s case because it was not so dependent on a single example to make its point. On the change of polling centre, the Supreme Court rejected the ECO’s demand that this point be chucked out of Ramgoolam’s official legal reply.

Polling agents kicked off lorries with ballot boxes?

Another argument in Ramgoolam’s petition that did not to survive is the one about the transportation of ballot boxes to the counting centre. Here too, the argument in court seemed to change mid-way. In paragraph 39 of his petition, Ramgoolam insisted that “a number of lorries left the polling stations without any escort of the agents of the petitioner, thus casting serious doubts as to the manner in which the whole process was carried out and thereby entertaining serious fears that the ballot boxes may have been tampered with during the transport exercise”. 

What was the ECO’s official reply to this point? In his reply to the petition, Irfan Rahman’s lawyers argued that although Ramgoolam did not give a list of names of his ‘lorry agents’ to accompany the ballot boxes, they were allowed to go on all lorries carrying ballot boxes for No10, except for the single one carrying sealed ballot boxes from Grand River South East Government School, Ernest Florent Government School and Sir Satcam Boolell Government School. Nevertheless, the commissioner’s legal team pointed out, Ramgoolam’s agents closely followed the lorry in their own cars and neither Ramgoolam nor any of his running mates or agents complained about lorry agents not being allowed onto any of those lorries. 

But here is where Ramgoolam’s own case seems to change. From initially arguing that lorries had left polling stations without his agents on board, now his lawyers changed their official argument to state that they maintained “that some lorries which left the polling stations were not escorted by any of the petitioner’s agents and that some agents were asked to alight on the way to the counting centre”. Apparently, the case has changed from lorries leaving with Ramgoolam’s agents on board to now the agents being kicked off these lorries transporting sealed ballot boxes on the way to the counting centre. This new argument of LP agents being kicked off lorries – absent in Ramgoolam’s original election petition – has been struck out by the Supreme Court too.

Returned candidates’ standpoint 

Although some of Ramgoolam’s arguments have been rejected by the Supreme Court, Vikram Hurdoyal, Zahid Nazurally and Sunil Bholah witnessed reverses in the case back in December 2020. Back then, they wanted the Court to simply strike out most of Ramgoolam’s petition, something the Supreme Court refused to do. In its decision back then, the latter said it had been “left in the dark” about why the three returned candidates argued that Ramgoolam’s arguments in his petition should be struck out by the Supreme Court.