Application for recusal of panel of Seychelles Constitutional Court judges allowed by Court of Appeal
The Court of Appeal has allowed the application made by the Seychelles Human Rights Commission, the Ombudsman and the Bar Association of Seychelles for the recusal of a panel of judges on the Constitutional Court hearing of a controversial case.
The three entities lodged a joint petition with the Constitutional Court on September 13, 2022, asking that the constitutionality of the 10th amendment of the Constitution be reviewed.
The 10th Amendment to the Constitution empowers the Seychelles Defence Forces (SDF) to carry out internal law enforcement in Seychelles outside the context of a public emergency.
The panel hearing the case in the Constitutional Court comprises Chief Justice Rony Govinden and justices Mohan Burhan and Brassel Adeline.
The three entities made the application for the recusal of the panel of judges on the Constitutional Court on the grounds that there is evidence indicating that the judiciary was involved in the preparation of the 10th Amendment. Additionally, that one of the judges of the Constitutional Court recently benefitted from a land transfer from the government.
The Constitutional Court on January 24, 2023 dismissed the case and the judges ruled that the motion appears to be frivolous and vexatious and an abuse of the process of the court and dismissed it on this basis.
The three Justices of Appeal on the case were Janak De Silva from Sri Lanka, Lillian Tibetemwa-Ekirikkubinza from Uganda and Karuna Gunesh-Balaghee from Mauritius.
In a unanimous judgement, the Court of Appeal found that the application for the recusal of the judges had been wrongly decided by the Constitutional Court in its decision of January 24, 2023.
In its ruling on Friday, the three judges of the Court of Appeal, said: «The Constitutional Court was of the view that the Recusal Guidelines applied only 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. On a plain reading of the Recusal Guidelines, that may well be a sustainable interpretation.»
«However, it overlooks the fact that the doctrine of bias which disqualifies a Judge from hearing a case is a particular application of the fundamental human right and freedom recognised in Article 19(7) of the Constitution,» said the Court of Appeal.
Quashing the Constitutional Court decision, the Court of Appeal directed that the recusal application should be heard anew by a panel of judges who were not in any way involved with the preparation of the 10th Amendment.
The Court of Appeal gave specific directives as to how this panel of judges should be set up to meet the imperatives of impartiality in the circumstances of this case. It also ordered that if it is not possible to set up this panel according to its directives, the Chief Justice should request the President of Seychelles to appoint temporary judges in terms of the Constitution for the purpose of hearing the recusal application.
The Court of Appeal also ordered that the judges who dismissed the recusal application must not haveanything further to do with that application.
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