The Judicial History of Seychelles


17-June-2013

Such was the effrontery of Imperialistic Colonialism that, the moment the Pierre de Nicholas Patrick France Bonnetard (1907-1969) was the first Seychellois to be appointed Chief Justice of SeychellesPossession was placed on the soil of Mahé on November 1, 1756 by Capt. Corneille Nicholas Morphey (1729-1774) as a preemptive act of possession by France, the laws of the Compagnie des Indes became applicable to the as yet uninhabited islands.

In 1770, when the First French settlement was established on Ste Anne, the small group of adventurous immigrants understood that they were under strict obligation to abide by the rules of the Code Noir. This was a decree passed by Louis XVI (1643-1718) in 1685, to establish the conditions of slavery in the French Colonial Empire. It explicitly legitimized corporeal punishment and the death sentence for slaves who had absolutely no rights.

However, if the lives of the slaves were controlled by the 60 articles of the Code Noir, less than two decades later, the white setters, whose numbers had began gradually to increase were explicitly informed that desormais their social, economic and property activities would be strictly regulated by a law enacted on July 30, 1786 by two successive commandants of Seychelles, Francois, viscount of Souillac (1732-1803) and Augustin Motais de Narbonne (1747-1847).

This law, which consisted of thirty articles was the corollary of a survey which Louis Jean-Baptiste Philogene de Malavois (1748-1825), ingenieur-geographe, carried out in the Seychelles from November 1786 to April 1787 - the primary purpose of which was to delineate habitations pertaining to land concessions as well as devising a plan which ensured that every single space of land was used for a particular purpose and thus avoid wastage.

The draconian laws that Malavois introduced curbed the reckless and destructive exploitation of the natural resources of Seychelles which previously most of the settlers had practiced with impunity. The total population of the Seychelles at that time was about 160 inhabitants including 125 slaves.

On September 9, 1793, Jean-Baptiste Quéau de Quincy (1748-1827) arrived in Seychelles to take up the post of commandant, and, like his predecessors, he had the sole authority to adjudicate on civil and criminal offences, in conformity with the edicts of the colonial Assembly of Ile de France (Mauritius).

On March 21, 1804, the year that Napoleon Bonaparte (1769-1821) became Emperor of France, the French civil code came into force. This law, together with the Code of Civil Procedure in 1806 and the Commercial Code in 1807, was modified and adopted to the legal needs of the Mascareign islands by the Captain-General, Charles Mathieu Isidore  Decaen (1769-1832),the governor of Mauritius from 1803 to 1810. Thus, it became known as Code Decaen, of course, it is anybody’s contention if even 10% of that massive document could be implemented in Seychelles where slave labour provided the indispensable work force on coconut and cotton plantations. The juxtaposition between the oppressive master and the submissive slave could have hardly been a remote consideration by the legislators of the Napoleonic Code, as the French Civil Code, was often called.

During the time of Quéau de Quincy, there was no court building per se thus when he had to preside over judicial proceedings, de Quincy held court at his own dwelling house. It was during the last moments of his administration that the last French Commandant of the Seychelles was confronted with his first case of Criminal Justice.

On December 30, 1809, he made an urgent request to the commissary of Justice of Ile de France for permission to execute slaves who were condemned to death. This was made at the instigation of the white settlers who were in a state of flustered apprehension after a slave named Pompee had murdered a white overseer named Pierre-Michel Isnard on August 21, 1809.

The trial of the slave took place in the morning of July 28, 1810 at which, the magistrate, or sort of, one could say, was the erstwhile corsair and slave trader Jean Francoise Hodoul (1760-1835). The Tribunal was assisted by seven lettered gentlemen from the L’Etablissement including Quéau de Quincy who acted as clerk.

The slave, Pompee, who confessed to his crime, was burnt that same day on the banks of the Moussa River.
This was the first death sentence that took place in the Seychelles and the only execution that took place during the French administration that ended on April 21, 1811. On March 18, 1812, Quéau de Quincy was appointed Juge de Paix, a post he held until his death in 1827.

Since the colony of Seychelles was ruled as a Dependency of Mauritius which Britain had taken possession of on December 3, 1810, it was considered more pragmatic for the Judicial system of Mauritius to control and regulate the administration of Justice in Seychelles, given that the executive and Legislative were based there. For many decades, the civil agent or Chief Civil Commissioner of the Seychelles was appointed by the Governor of Mauritius. The administration of the Dependency was based on Regulations issued by the Governor of Mauritius to the Chief Civil Commissioner of Seychelles who then, by Proclamation promulgated the Regulations which then became Law. Any amendments or alterations that needed to be made to these Regulations were deliberated upon by the Board of Civil Commissioners which was appointed by the Secretary of State for the colonies.

Some specific regulations that were passed by the Board of Civil Commissioners had to be ratified by the Governor of Mauritius. These became law after they had been published in the Government Gazette.

In 1831, the Mauritius Charter of Justice came into force. This authorised the Governor, inter alia, to establish petty court in any Dependencies of Mauritius, and to extend or limit their power.

With the Emancipation Act of 1833, followed by the abolition of Slavery in 1835, Seychelles was ever more in need of a system of Justice to effect legal procedures, since social consequences pertaining to the manumission of over six thousand displaced, tormented and naturally, grudgeful human beings, were not negligible. Such was the concern of commissioner, George Harrison, when on October 26, 1835, he wrote to the colonial Secretary in Mauritius to enquire if the Tribunal of peace, which had been established during the French Period, could judge liberated Africans for offences “not of a very atrocious nature”, instead of having to send them over to Mauritius, as the existing law of 1896  stipulated. Harrison, apprehensively aware of the utter incapability of his administration to effect criminal justice did not miss mentioning that ….“I would certainly never recommend a tribunal being established in this Dependency with authority to inflict the penalty of death”…

In 1843, when Charles Augustus Mylius (1795-1873) was commissioner, a court was established in Seychelles by the Mauritian ordinance no.13 of 1853, a District Court was established in Seychelles (Seychelles then being a Dependency, “a district” of Mauritius). At that time, the public prosecutor was known as Procureur General.

By an Order in Council of April 22, 1872, a Board of Civil Commissioners for “the Seychelles islands was constituted and empowered to make regulations for the peace, order and good government of the said islands”. By that time the criminal law in use in Seychelles was the Penal Code enforced by Mauritian Ordinance No. 6 of 1838, which of course, had been modified and amended by various subsequent enactments. Since Seychelles was a Dependency of Mauritius, in addition to local legislation made by the Board of Civil Commissioners, various ordinances passed by the council of Government of Mauritius had the forces of law in the Seychelles islands.

In 1889, the District Court became the court of Seychelles because, by then, the Administrator, who was accorded with all the powers of the Governor of Mauritius, except the powers of pardoning persons sentenced to death could with the advice and consent of the Legislative council make laws for Seychelles. However, the power of Legislature to legislate for Seychelles prevailed. The District Judge became the judge of Seychelles and the District Clerk of the said Court became the Registrar of the Court of Seychelles. Nevertheless, the trial of Capital offences had to be conducted in Mauritius because it was not possible to obtain a good jury. Few inhabitants possessed the requisite education or even a basic understanding of English in order to evaluate accusations against persons charged with crimes and to determine whether the evidence warranted a bill of indictment. It would also happen that the same jury would sit on every case. Moreover, the judge who conducted the preliminary inquiries also presided at the trial. The judge was in fact also the Stipendiary Magistrate. The Stipendiary Magistrate in Seychelles and Mauritius had a different function than one in England. In Seychelles, a Stipendiary Magistrate was invested with the judicial authority in matters relating to Indian immigrants and disputes between masters and servants.

In England, a Stipendiary Magistrate is a barrister or Solicitor who is appointed by a county or district council on the recommendation of the Lord Chancellor. The Stipendiary Magistrate who is invariably a full-time Salaried lawyer gives assistance to the Magistrate.

In 1894, the Judicial Department which for many years was located in an old coral limestone and timber building on Royal Street moved into the upper portion of the large building which, the New Oriental Bank Company had built in 1885 when the Bank expressed its intention to open a Branch in Seychelles. Its presence in Seychelles was however brief. It opened in 1887 and closed in 1892. The Government bought the building for R30,000.

Various alterations were carried out on what was then the biggest building in Seychelles, to accommodate the premises to the new requirements.

For many decades, it was known as the Courthouse and Treasury Building because the customs and Treasury Department Offices were located on the ground floor.

In 1898, two judicial establishments were created. These were a Police Court and the Office of Crown Prosecutor. The former was a Court of Criminal Jurisdiction in the charge of a Police Magistrate who was empowered to make criminal inquiries into capital offences and to Furcy Alfred Herchenroder (1865-1968) discharged both the duties of Crown Prosecutor and of Police Magistratecommit any person or persons for trial before the Court of Assize, and the latter was empowered to conduct criminal investigations and to institute prosecution before the Court of Assize based on his own information that did not have to be on oath. Such was the state of the judicial department that in 1899, the Crown Prosecutor was also the Police Magistrate. Furcy Alfred Herchenroder (1865-1968) discharged both duties. The Crown prosecutor was appointed by the Secretary of State for the Colonies.

During that particular period, it became evident that certain formalities enacted in the past to regulate the modus operandi of the court had to be dispensed with to render the administration of justice more efficient, regarding especially the trial of capital offences. An order of council of 1892 required that the examination and depositions should be transmitted to the Procureur General of Mauritius who had the responsibility to decide whether the prisoner should be put upon his trial for the capital offence, where upon he sent to the Judge signed documents. Until such information was received, no trial could take place. When these formalities were enforced, there was regular monthly stream communication with Mauritius, but by 1899 there was no direct communications with Mauritius. Consequently, this caused considerable frustrations for both the court and prisoner.

In 1901, the administrator, Ernest Bickham Sweet Escott (1857-1941) made provisions for the administration of summary justice in Seychelles Islands by appointing Justices of the Peace for the districts of Seychelles. Justices of the Peace did not need to have legal qualifications of any kind and had only jurisdiction to try minor criminal offences under the penal code, the maximum punishment for which was one month’s hard labour and R100 fine.

In 1902, additional powers were given to the officer appointed to look after the outlaying islands. His title was changed from Justice of the Peace to Visiting Magistrate. His jurisdiction encompassed the enforcement of all contracts of service and the right to impose penalties for the breach or neglect of such contracts and to ensure that proper medicines or proper house accommodation are duly provided to the servants.

It was in 1903 when Seychelles was erected into a separate colony that the Judicial Establishment saw its major transformation. The Seychelles Judicature Order in Council 1903, created the Supreme Court of Seychelles. The court consisted of one Judge who was the Chief Justice of the Court. Appeal cases with final judgments of the court in civil matters were transferred to the Supreme Court of Mauritius. This applied also to convictions with penalties that exceeded two years imprisonment or Two thousand Rupees fine, but provided that the ground of such appeals were based upon erroneous applications of the law.

The Seychelles Capital Offences Order in Council 1903, provided that capital offences should be tried and sentences of death executed in the Seychelles islands. Section 116 stated that: Every prisoner sentenced to death shall when execution is assented to and ordered in accordance with provisions of this order be hanged by the neck until he be dead. The most notable of the application of the death penalty was in 1935, when on Saturday May 4, three men were hanged at 30 minutes interval for the assassination of a Chinese merchant on January 23, 1935.
In 1934, a Juvenile Court was established.

In 1938, the Justice Authority felt that there was an absolute necessity to establish a Coroner’s Court in order that an inquest could be conducted on all deaths of a suspicious nature. The establishment of this Coroner’s Court was not upon the amendment of a specific ordinance. Two ordinances had to be amended: The Police Court Ordinance, 1914 and the Civil Status Ordinance, 1893 to include provision for a post-mortem examination to be carried out in the case of death due to unknown causes. The amended ordinances no. 21 and no. 22 respectively were published in Gazette No.63 of December 31, 1938.

During the 1940’s the Colony’s Judicial system went through much comprehensive changes. To enable the legal jurisdiction of the court to maximise its application in all aspects, various ordinances were enacted to establish procedural methods for the courts to implement in the execution of justice. For example, in 1944, the Justices of the peace were authorised to make inquiries into capital offences, something that would have provoked a national protest half a century before.

In 1947, the official designation of Crown Prosecutor became Attorney General. That happened when Governor Sir Percy Selwyn – Clarke (1893-1976) appointed Charles Evariste Collet (1900-1961) to that post. It caused great discontentment among the estate owners who regarded it as affront to their society because Collet was a black Seychellois…

By 1948, the courts had been re-organised so that the Supreme Court tried crimes whereas the police court dealt with contraventions and misdemeanors. Appeal in criminal cases went to the East African Court of Appeal whereas civil cases from the Supreme Court went to the Appellate Court of Mauritius.

In 1958, for the first time, a Seychellois was appointed in the post of Chief Justice of Seychelles. He was Nicholas Patrick France Bonnetard (1907-1969). He served from 1958 to 1966.
In 1961, an ordinance was passed so as to provide for the trial of capital offences by Jury. Previously, such offences were tried by Court of Assize of Seychelles.
In 1966, capital punishment was abolished, the last execution having taken place since 1948.

On the Eve of its Independence, Seychelles adopted a new civil code which replaced the French Civil Code of 1804. It is, in fact, a revised and amended version of the Civil Code , to make it suitable to the society of a small tropical archipelago.

And, thirty-seven years later, this very same Civil Code is undergoing yet again more modifications and alterations to render it relevant to our 21st Century Third Republic.

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