WHEN prominent Seychellois lawyer and political figure, Alexia Amesbury, decided to contest a seat on the country’s human rights commission, she came up against an apparently immovable obstacle: the law disqualifies candidates who hold office in or are employed by political parties from sitting on the HRC. Undeterred, she contested the constitutionality of the relevant sections of the law in the constitutional court of Seychelles. There the judges found it international best practice for such commissions to be “impartial” and without overt party political presence and so Amesbury lost her challenge to all but one of the sections she targeted. The government, however, is appealing even that small victory and so the case is now headed back to court.
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Alexia Amesbury already has a high profile in Seychelles. She is a favourite subject for media interviews, was the first woman to stand as a candidate for president of the country, and heads the Seychelles Party for Society Justice and Democracy. She is also a lawyer who sometimes takes on clients with an equally high profile, and, for example, counts among those for whom she has acted the disgraced former acting chief justice, Duraikannu Karunakaran.
So when she discovered that her application for the post of chairperson of the Seychelles Human Rights Commission(SHRC) had been rejected on the grounds that she was not eligible, she did not simply accept the situation. Instead, she launched a challenge in the constitutional court, arguing that certain sections of the Seychelles Human Rights Commission Act – the sections that prevented her from being considered for the post – were unconstitutional.
Three judges considered her petition, and though she lost the central issue, her argument prevailed on a sub-section that stipulated a year long “cooling off period”, and she immediately took steps that could see her qualify for the office she wanted, in the immediate future and resigned from her party position.
The sections she targeted disqualify “politically affiliated persons” from being considered for appointment to the SHRC. In her initial letter applying for a position on that body, she acknowledged that she did not qualify in terms of the present legislation. But, she claimed, the provisions that kept her out of the position were discriminatory, violated her constitutional rights and went against the expressed purpose of the SHRC.
Her central argument against sections 5 and 6 of the law was that “an Act whose object is to investigate and conciliate complaints of discrimination and make recommendations to address discrimination cannot itself be discriminatory in the selection of those who qualify to be appointed … to serve on the SHRC … as it defeats its object”.
The crucial section reads, “A person shall not be appointed (to the SHRC) if that person holds office in, or is an employee of a political party”. Under the sub section that follows, disqualification continues for a year after such a person quits working for a political party, and the bar to SHRC positions applies equally to anyone who is a member of the national assembly or a district council, who has been convicted and imprisoned for more than six months, or who has been “adjudged … a violator of human rights” by a competent court.
Amesbury’s case was that her right of assembly and association were infringed by these provisions. She had a right to participate in government and the conduct of public affairs, but though the constitution gave her these rights, the sections in the SHRC Act barring her from positions on the commission effectively removed those same rights.
In its reply the government said the rationale for excluding people who held political office was to protect the SHRC from interference, since the commission was supposed to be a “self-governing, neutral and independent body (that) shall not be subject to the direction or control of any person or authority”.
In their decision, the judges said the right that Amesbury relied on was “not absolute”, and that the state could make laws restricting the rights she cited if the restrictions were necessary in a democratic society. The government claimed that the restrictions served a legitimate purpose, namely to safeguard the independence of the commission. One of the prime duties of the commission was to ensure that citizens’ rights and freedoms were protected and the impartiality of the members of the SHRC was crucial.
“Therefore, it is the view of this court that if persons are to be independent and impartial and to perform their duties accordingly, they cannot wear two hats at the same time”, for example, that of a leader of a political party and that of the chairperson of the commission.
People with “strong political portfolios” had to be excluded because they were likely to have their own agendas to promote and their impartiality would thus be questioned and would “dilute” the perception of the commission’s independence.
Similar provisions to those in the SHRC Act could be found in other jurisdictions, South Africa, for example, while in India the Human Rights Commission was just as strict.
In the view of the judges, Amesburg “would be hard-pressed” to find an example where people holding office in political parties would be allowed to sit on “an independent and impartial human rights commission”.
But while the judges found against her on this question, they did question the need for the one-year “cooling off period” after holding political office that was provided for in the law. Why was a year needed, they asked, rather than, say, one or three months? “It appears to be an arbitrary period with little to no rationale.”
The court thus found that Section 6 (2)(b) imposing a time limit on someone who resigns from office or employment with a political party, before they qualify for a position on the SHRC, to be unconstitutional. The rest of the relevant provisions, however, they upheld.
They ordered a copy of their decision to be sent to the President and to the Speaker of the National Assembly, and ordered the parties to bear their own costs.
In an interview this week with the Seychelles News Agency, Amesbury explained that she had in the meantime withdrawn her application for a post on the SHRC. Instead she saw a “bigger challenge”, namely the Committee on Truth, Reconciliation and National Unity. She has now applied for the position of chairperson of this body, which was set up to heal divisions and grievances that began with the 1977 coup d’etat.
She said she had not expected the government to appeal against the constitutional court’s finding that the “cooling-off period” of a year was invalid. However, if the government’s appeal was successful that decision would “open the door” for her to return to her former position as leader of the Seychelles Party for Social Justice and Democracy.
- Newsletter, Judicial Institute for Africa (Jifa), 24 January 2019