Back in April, the parliamentary opposition parties submitted a joint document outlining proposals for the next elections. Recently, the Office of the Electoral Commissioner came up with a response to these proposals. After suffering a series of defeats in their electoral petitions following the 2019 elections, here is why these latest proposals don’t really go anywhere.

1) Register of electors

Back in April, the Labour Party, the MMM and the PMSD submitted a joint document outlining their proposals for the next general elections. With the Office of the Electoral Commissioner (OEC) coming up with its response, as it turns out, each of these proposals fall into one of three categories: things that are already being done, proposals that are simply unworkable, or things that are outside the powers of the OEC in any case. 

First, let us take a look at the proposals coming from the opposition parties that are already being done. When it comes to the register of electors, the opposition parties proposed that “to avoid the possibility and/or perception of manipulation of the electoral register, (they) believe that the electoral register both in hard copies and in electronic versions should at all times be under the sole custody and control of the OEC… The OEC should also keep an exact replica both in hard and soft copies as a back-up for control purposes”. The issue with this is that it is already being done; the register is already kept on both hard and soft versions, the latter being stored on a private network within the OEC with all additions to the register by registration officers being tracked and signed off on after verification. The other plank of this suggestion is the demand that only high-ranking officers of the OEC should be able to access and change data on it. This is already the case, according to the OEC’s response. 

These proposals are a rehash of the arguments about alleged irregularities in the compilation of the register of electors for the 2019 elections. Unfortunately for the opposition parties, however, none of these arguments had a successful issue in court. In its plea in the case for No.10 on April 29, 2022, the OEC pointed out that there were 51,742 registered electors in 2018, and 52,835 in 2019, indicating that “the averment that there was an unusual number of persons whose names had been taken off the register is erroneous”. That is, before the petition for No.10 was voluntarily withdrawn by Labour Party leader Navin Ramgoolam. 

In the same vein, when it comes to ‘computer rooms’ the proposal of the parties is that they should not be used in the next elections. The OEC has agreed not to use these rooms at the next election. But this concession has not come because the parties succeeded in proving their point in court. In the judgement of the unsuccessful petition of Ezra Jhuboo, the Supreme Court was quite clear that these rooms played no part in the manual counting process that at the end of the day was what determined the result. “We are satisfied that the evidence on record reveals that the computer room did not form an integral part of the manual counting process and the figures input in the computer room did not have any bearing or incidence on the final results of the general elections in 2019 (…) At no point did the petitioner adduce any evidence to show that the figures emanating from the computer room and which were published on the website of the respondent No.4 were different from that of the final results announced by respondent No.6 based on the manual counting and recapitulation exercise. It is also relevant to note that the petitioner did not adduce any iota of evidence to support his averments that the final results came from the computation of inputs in the computers and that there were serious doubts regarding the veracity of the final results announced.”

2) Ballot papers

Another argument resurrected in the opposition proposals is that “all ballots related to a particular election should only be printed by the Government Printing and not outsourced to outside private contractors”. This was a unique argument that figured in the petition of Ramgoolam in No.10. The problem with this argument is that the 982,200 ballot papers printed for the 2019 polls were all printed by the Government Printing Office, with no precedent in Mauritian electoral history of ballot papers being printed by private contractors. When pressed for evidence to back up the claim, Ramgoolam’s lawyers simply responded that they had “no written evidence”. This proposal too seems to be more a case of a solution looking for a problem. 

Another proposal is that the OEC “on the eve (or earlier) of voting day publish details of the number of ballot papers to be issued for each voting centre with their respective unique serial numbers”. This too is just reheating an argument that fell flat in court. One of the charges in nearly all the petitions lodged by the opposition was that they were not told of the number of ballot papers issued for each polling station. The answer was that this information was available at the office of each Senior Presiding Officer at each polling station. It was just that the opposition candidates did not bother to check. So, that argument too collapsed in court. However, in response to the opposition’s proposals, the Electoral Commissioner stated that for the village council elections in November 2020 and the Rodrigues Regional Assembly elections in February 2022, “all candidates were handed over a document showing the allocation of ballot papers including their respective serial numbers”.

3) Voter fraud

In No.10, Ramgoolam’s lawyers argued that one elector was not able to vote, Bibi Nassima Arlando, because her name was not on the electoral register. As the case progressed, the argument changed to one that insisted that she could not vote because somebody else had allegedly already voted in her place. This seeming change in argument to one of voter fraud was disallowed in court and it subsequently disappeared with the withdrawal of the petition. However, in the opposition’s proposals, this argument rears its head once again. One of the propositions is that “valid identity documents to allow an elector to vote should not include bus passes, birth certificates, or any other documents, except the national identity card or passport”. 

The issue with this proposition is that photo IDs have been required to vote in Mauritian elections since 2014, with other photo identification such as passports, bus passes or driving licences being also acceptable. According to the OEC, since the village council elections in 2020, acceptable forms of identity have been restricted to ID cards or passports, as the opposition is demanding. In other words, not only has voter fraud been a largely non-existent problem – with the opposition itself unable to prove any in its election petitions either – but the solution being proposed is one that’s already in place. 

Another proposal is that electors’ names who have, or who have not yet, voted “should not be communicated to any other party, including OEC officials, as provided by law”. In its response, the Electoral Commissioner states that, “prior to polling day, all election officers are given clear instructions that the names of registered electors who have already cast their votes (as well as those who have not yet voted) are not to be communicated to anyone,” and that “there have never been any reported cases of the communication of the lists of electors who have already voted in a voting room by candidates or polling agents”. Like voter fraud, this too seems to be a solution to a largely imaginary problem. 

Likewise, when we come to another suggestion that, “at the close of polling, the relevant officer of the OEC should, in the presence of agents of respective parties running for the general elections, affix a sealed tag including a serial number on each ballot box before being transferred to the centralized counting room of the said constituency and counting should start immediately thereafter”. In his response, the Electoral Commissioner points out that, since the 2010 elections, “tamper proof sequentially numbered plastic seals are being used. In fact, sealing of the aperture of the ballot box at the close of poll is a legal requirement [regulation 37 of the National Assembly Elections Regulations], and this legal requirement has always been strictly adhered to in the presence of candidates and agents”. 

In fact, before the 2019 elections, the LabourPMSD bloc held a meeting on November 4, 2019, with the Electoral Commissioner Irfan Rahman, as well as members of the Electoral Supervisory Commission, to be allowed to use their own metal seals as well to close ballot boxes once voting had ended. They were allowed to do so, putting as many as three such metal seals on each box in some cases with the alliance having to bring in their own pliers to break open the seals before the boxes could be opened. In other words, this suggestion is merely a repetition of what already exists.

4) The unworkable proposals

A number of the proposals made by the opposition seems to be simply unworkable. One such is the suggestion that “all ‘resources’ (manpower including recruitment, printing of ballot papers, computers, vehicles transporting ballots and ballot boxes into and out of voting centres) to be used during elections, up to and including counting, should be under the sole and total control of the OEC”. Let us take the point about manpower. In his reply, Rahman states that “the OEC would like to emphasise that all manpower used in connection with the polling and counting process has always been under the sole and total control of OEC”. It is the OEC that prepares a list of public officers to work in an election, which is then approved by the ESC in turn, before such election officials are formally appointed by the secretary to cabinet. “The proposal that the OEC appoints election officers is not permissible under the current scheme of the law and would therefore require legislative changes.” 

Or take another suggestion from the opposition; that those whose names are taken out of the register of electors, because they moved to another constituency, or did not bother to register at all, be informed by a registered letter. The problem with this proposal is that the RoPA outlines how to compile the register and registered letters to those being chucked out of the register only works if the person is still living at the address with the OEC or bothers to reply. “From past experience, the response has been very poor and in most cases the letters are returned by the post office with an ‘undelivered note’. The OEC has stopped this very costly exercise, which did not produce the expected results.” The problem, as it turns out, is not with the way in which the OEC works, but political parties themselves; back in 2002, the Sachs Commission proposed a system of compulsory registration of voters and laws to compel voters to make sure they were registered. However, since then, no party or government has done anything about it. Instead, the suggestion is merely a return to an unworkable system. 

Another whiff from the past is the proposal to reintroduce the system of yard agents. A uniquely Mauritian phenomenon, yard agents – dressed in party colours – were criticised for attempting to sway and browbeat voters coming in to vote at polling stations. With election officials already deputed to help voters through the voting process, having a large gang of yard agents loitering around was deemed to be unnecessary by the Sachs Commission, which suggested that the system be removed entirely. In fact, the system of yard agents was done away with during the 2010 elections. Like sending registered letters, this too is merely suggested to step back in time, with the benefits to voters and Mauritian democracy itself, largely left unexplained. Similarly, another proposal to ban mobile phones from voting rooms proves to be equally unworkable. With hundreds (if not thousands) of voters trooping in and out of each polling station at each election, the response of the Electoral Commissioner states, “The implementation of this measure would also require a method of securely storing the mobile phones in a voting room – this is realistically not achievable.”

5) Looking at the wrong end

Then, there is a series of proposals that is not within the power of the OEC at all, but are rather things that political parties themselves are supposed to take care of. Firstly, there is the proposal that the register of electors should be updated to take account of dead electors between the closing of the register of electors and an election that takes place afterwards. The problem is that under the RoPA, the registration process must end on May 30, each year; therefore to amend it afterwards would require a change of the law in Parliament, not unilaterally by the OEC. 

There are also a series of proposals on the Mauritius Broadcasting Corporation (MBC). In some of the petitions, the court did not allow this to go further since the petition did not address them directly (such as in No.10), or in others it did not succeed (as in Suren Dayal’s petition for No.8). The proposals demand that the OEC ensures that the MBC gives “an equitable allocation of time…” and that the OEC should take the MBC to court in the case of lapses by the national broadcaster. The problem is that this proposal asks the OEC to exercise a power it does not have; it is the Independent Broadcasting Authority, and not the OEC that is the regulator of the MBC. 

In its reply, the OEC states that “it is not the mandate of the OEC to act as a guardian of political broadcast airtime. Still less, the OEC, as a matter of law, has no standing to seize the Supreme Court for such matters. It is for the aggrieved parties to do so if they so wish in case there are breaches of provisions of the MBC Act”. Similarly, asking the OEC to “issue guidelines for the police and all public officers to act diligently and impartially during the electoral campaign, polling day and on counting day” also ignores that the fact that the OEC has no such constitutional powers, and that under section 71 of the Constitution, the police answers to the Police Commissioner, who is not supposed to be under the direction or authority of anybody else. Here too, the proposal turns out to be legally unworkable. 

The other major proposal is that the OEC should allow for the counting of votes to take place on the same day, rather than the next day. In its reply, the OEC states that it “has always been in favour of carrying the counting process immediately after the close of poll”. But such a change is – once again – not in the hands of election officials, but rather would need the political parties themselves to push through such a change in Parliament. Like the proposals concerning the MBC and the police, this one too may sound nice, but it is something for the political parties, not the election officials, to address and resolve.