This report has been distributed to the Ministers, the members of parliament, and the parliamentarians who belong to the Radical Party, Transnational and Transparty.

Premise - the nature of the assignment

I was asked by the Seychelles Chamber of Industry and Commerce to act as an independent observer of the electoral operations relating to the referendum which was held in Seychelles on 15 November 1992. The population was called upon in the referendum to pronounce judgement on the new draft Constitution of the country. The draft Constitution obtained 53.7% of the votes cast, against the 60% necessary for approval, and was therefore rejected by the people of Seychelles.

It is clear that the fulfilment of my task did not simply require me to inspect the polling stations: it is not only in the polling stations that the correctness of an election has to be judged, nor is the fact that the casting and the counting of votes take place in accordance with the rules enough to be able to assert that a popular election has respected the principles of democracy.

A referendum - and any kind of election in general - is an instrument to establish the will of the people.

In a referendum (an instrument of direct democracy), the population or electoral body is called upon to decide directly, without mediation, on a specific subject: to express its will, by a majority.

The examination of the correctness of a referendum (as of any other form of election) must therefore take into account the conditions under which the will of the people has been formed: the process of formation of the will of the people is at least as important as the formal correctness of the polling operations in an evaluation of the level of democracy and liberty of the vote cast by the electors.

The polling operations

From the point of view of formal correctness, the polling operations were unexceptionable. On the day of the vote I carried out inspections of 11 different polling stations, and was able to verify that the organization of the stations was efficient and able to guarantee polling operations and to prevent the possibility of irregularities.

At each polling station there were representatives designated by the various political parties with the formally recognized role of observers.

On the occasion of the previous election (held last July to elect the members of the Constituent Committee which was to draft the new Constitution), the political opposition had reported serious irregularities, which consisted mainly in the fact that some electors had voted more than once and that others had received money in exchange for a vote in favour of the government party.

Whether such irregularities actually took place or not last July, the Director of Polling Operations decided in any case to adopt further measures for this referendum, in addition to the measures adopted in the last election. In order to prevent the possibility of voting more than once, polling station officials marked one finger of each elector with black ink (a measure which had been taken in July), whilst another finger was dipped in invisible ink, the presence of which could only be ascertained through exposure to ultraviolet rays. This new measure had been given considerable publicity, and its infallibity stressed.

In actual fact the measure proved to be far from infallible: with the help of two citizens of Seychelles I was able to ascertain that normal washing of the hands got rid of the invisible ink almost entirely. Removal of the black ink, on the other hand, was much more difficult - impossible without solvents.

During the course of the referendum day, there were a series of rumours of irregularities: it was claimed that people had voted with only one identity document, or that others had voted with a false identity document. Other rumours referred to the existence of so-called "check-points", places where payments were made in exchange for a vote in favour of the Constitution. These accusations had also been made on the occasion of the July election, and were amongst the causes of the violent street battles that took place after the election.

I cannot, in all conscience, claim to have any evidence of such irregularities. Those who mentioned them are people who enjoy my respect and esteem; but I have no proof of electoral irregularities, a phenomenon which is one of the most serious attacks on democracy, since it destroys its very foundation, that is the formation and the expression of the will of the people, of the sovereign body.

The election campaign before the referendum

Serious failings, however, were noted during the election campaign.

"Knowledge is a prerequisite for decision", runs one of the fundamental maxims of democracy. If the people are not given sufficient information on the subject they are called to vote on, they will hardly be able to form an opinion in a responsible manner and express their decision through the vote.

An absence or lack of information and debate serves to negate the very validity of an election, just as ignorance of the contents of a contract on the part of those who are to sign it destroys the element of reciprocal will, and invalidates the contract itself.

It is first necessary to make a general consideration of fundamental importance: the principle of the freedom to express ideas and opinions, which includes the freedom of the press, is not respected and guaranteed if a state merely allows the publication of newspapers and magazines of various types and contents, including those whose general line is opposed to that of the government forces.

In a democratic society, information is one of the fundamental rights of the citizen: the means for becoming familiar with ideas and opinions must be guaranteed by the state-run news organs (if and where they exist: if they do not exist, other mechanisms must ensure the completeness and correctness of information, as well as access to the information itself).

In Seychelles the publication of privately-owned newspapers and magazines has only recently been permitted, and this constitutes a step forward towards the fulfilment of the right to information. It is a step forward, however, which is very far from providing a full guarantee of this right.

In Seychelles, in fact, the main organs of information are the state TV channel, the state radio channel, and the daily newspaper "The Nation" (the only newspaper). These organs belong to the state, and for this very reason must be obliged to perform the role of a public service. A public service of great importance, because it serves the process of formation of the will of the people, that is of the sovereign body.

The public service which these state-run organs of information must perform is all the more necessary on the occasion of elections or referendums. In the case of the recent referendum on the Constitution, however, the state-run organs of information played a biased role, in support of only one of the two positions. This is an extremely serious failing which, if it is not altered by means of clear laws, will undermine the attempted transition towards democracy in Seychelles.

This is what I noted:

Television. The state TV channel broadcast a series of programmes in which supporters of the two positions, independently of each other, expounded the reasons for voting YES and NO. In terms of air-time, the space given to these programmes can be considered adequate. However, it is evident that correct and full information does not simply mean granting independently-managed air-time. What helps the citizen to form an opinion is "face-to-face" debate, that is the confrontation between different positions. The TV service did not ensure this type of information, which is of literally fundamental importance.

In fact only three debates were broadcast during the whole period of the referendum campaign; the last of these was broadcast on 30 October, that is, almost unbelievably, two weeks before the vote. On the basis of these circumstances, we might well be led to think that the owner of the TV channel - that is the state - far from playing an unbiased role in the run-up to the referendum, deliberately assigned a marginal role to the most important and structurally objective part of TV coverage, relying on more easily manipulated means of propaganda.

"The Nation". The only daily newspaper in the country, owned by the state, played a role which was probably even further from the interest of the people in information and its own duty to provide correct and objective information.

During the ten days preceding the referendum, in fact, on two occasions readers found leaflets inside the newspaper containing propaganda in favour of the new Constitution. This happened on 3 November and 11 November, that is only a few hours before the closure of the referendum campaign. Then, on 12 November, a broadsheet was distributed inside "The Nation" containing an open letter to the people in which President René invited the people to vote YES.

Moreover, in the 14 November issue (the day before the vote, and therefore after the official closure of the referendum campaign) "The Nation" published an article in which, although there was no explicit invitation to vote YES, the author clearly supported the draft Constitution.

Serious though they are, these facts are only part of the negative conduct of the newspaper.

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Before continuing to examine the role played by "The Nation", it is worth making a more general consideration.

The people of Seychelles were not put in a position to become sufficiently familiar with the contents of the Constitution that they were called upon to accept or reject. In reality, the referendum was principally a political elction, in favour of or against the party in government: the merits and the contents of the important draft law were substantially marginalized. And within this disservice there was a further serious failing on the part of the state-owned organs of information. The people had no direct knowledge of the Constitution on which they were called to express their opinion. And the instrument of information which should have provided at least indirect knowledge of the contents of the draft constitution proved to be simply the product of a distortion of the truth and of censorship.

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As a supplement to the 23 October issue, in fact, "The Nation" published a booklet entitled "The Draft Constitution: A Presentation", the preface to which states that it has been written to facilitate a knowledge of the "main features of a proposed social contract between the people of Seychelles as they continue to take their beautiful country along the road to a democratic multi-party society."

Leaving aside any judgement on the contents of the draft Constitution (since the people have now rejected it in the referendum), it must be stressed that the "Presentation" distributed by "The Nation" was the fruit of manipulation and censorship.

One example is the subject of the right to life, upheld by Section 16 of the draft Constitution (which also, to its credit, abolishes the death penalty). Section 16 runs as follows:

"A sentence of death shall not be imposed by any court.

A person shall not be regarded as having been deprived of his life in contravention of this Section if he dies as the result of the use, to such extent and in the circumstances as are permitted by law, of such force as is reasonably justifiable in the circumstances of the case -

a) for the defence of any person from violence or for the defence of property;

b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

c) for the purpose of suppressing a riot, insurrection or mutiny or of dispersing an unlawful gathering; or

d) in order to prevent the commission by that person of a criminal offence,

or if he dies as the result of a lawful act of war."

The only democratic rule contained in this section is that which forbids the death penalty. Otherwise it involves a set of rules which are very far from the minimum standards of a democratic Constitution, and also very far from the minimum standards of the statement of the universally recognized human rights, considering the incredible exceptions which are appended to the statement of the right to life.

What matters here, however, is that this Section was "summed up" by the "Presentation" published by "The Nation" in saying that the right to life is affirmed and it the following words:

"The death penalty will be abolished in Seychelles. Under the new Constitution, therefore, no one will ever be executed in Seychelles for any reason."

The "Presentation" adds nothing further.

This is one of the examples that can be given to demonstrate the substantial difference between the "Presentation" and the text of the draft Constitution. There are two possible interpretations: either the authors of the "Presentation" were not aware of the importance of the exceptions laid down by the draft Constitution to the statement of the right to life, or they wanted to hide these exceptions from the people. In both cases, these are circumstances of exceptional gravity, that is acts of omission, manipulation or censorship aimed at denying the people the facts and information necessary to enable them to express their will.

It must be further underlined here that the manipulation of information is the most serious of the circumstances that prevent an election from being free and democratic, because it directly distorts the formation of the will of the people.

Concluding considerations

The referendum held on 15 November 1992 on the draft Constitution of Seychelles was an example of the use of a typically democratic instrument in the framework of an operation aimed at depriving the people of the right to decide freely.

A number of urgent requirements for the country can therefore be identified:

- Seychelles urgently needs a new Constitution. The fact that the draft Constitution was rejected by the people (only 53.7% of the electors voted YES, against the 60% majority established as necessary for approval) means that the old Constitution is formally still in force, although it has in substance been invalidated by the very fact that a constituent process has been opened.

- Considering that the Constituent Committee (which proceeded, in a climate of great conflict, to draw up the draft Constitution which was put to the vote in the referendum) was elected last July according to a system by which the parties nominated the members of the Committee in proportion to the number of votes they had received, it is to be hoped that the next Constituent Committee will be formed according to a system by which candidates, whether they are included in party lists or are independent, are voted directly by the people. The necessary back-up could then be obtained through the participation of experts in law, including foreign experts, in the proceedings of the Committee.

- It is absolutely necessary that the proceedings of the Constituent Committee be carried out publicly, and that the people be allowed to follow the progress of these proceedings through the organs of the press.

- It is equally necessary that laws be issued to regulate the use of the media, for the full application of the principles of the right to the free expression of ideas and the right to information. In particular, it is necessary to establish laws which regulate the access to state-owned media organs, in order that they perform a public service for the people and for the bodies in which the people may gather: if access to the state-owned media organs is not regulated, then these organs should be withdrawn from the direct or indirect control of the state, or of the political forces in government at any particular time.

In conclusion, I must stress the fact that only legal regulation of the state-owned media organs can correct their tendency to manipulate and censor information, a tendency I noted not only in the examples outlined above but also in the arbitrary cuts made in the interviews I gave, especially on television.

Yours faithfully

Paolo Pietrosanti

Member of the Federal Council of

the Transnational Radical Party