In the National Assembly   VP Afif dispels concerns, reassures public military will never assume functions of police |03 June 2022

Members of the public have no reason to fear that the amendments being proposed to the  Constitution will provide for the military to replace the police in its functions. They are only clarifying that the military can assist the police and will only be called for assistance in certain circumstances.

Another concern of the public with regard to the amendments is that the military and police officers are trained differently and that the military’s training is focused on how to engage in wars and how to defend the country from foreign enemies and soldiers are not trained to work with and handle civilians.

“This is not true as the military is trained on how to handle/work with civilians and the military follow training alongside the police and the military also has clear laws on how to handle and engage itself before using any force. The Seychelles Defence Forces in 2022 is not being managed as it was during the second republic or before October 2020,” Vice-President Ahmed Afif has said.

VP Afif made these clarifications in the National Assembly on Wednesday when he was presenting the proposed amendments to the Constitution through the Constitution of the Republic of Seychelles (Tenth Amendment) Bill, 2022.

He informed Assembly members that the two amendments came after the last review of the Constitution in 2009 and they aim to change all references in the Constitution where the Defence Forces of Seychelles will now become Seychelles Defence Forces and add a fifth function for the latter under Article 163(1) to clearly state that the Seychelles Defence Forces is allowed to provide support to reinforce the law in relation to public security, environment protection, maritime security and any other aspects as stipulated under the law.

Focusing on the fifth function of the Seychelles Defence Forces, VP Afif reviewed the laws already in force which are giving it certain powers.

These include Cap. 158 of the Penal Code dating February 1, 1955 more specifically Section 73 to 78 which describe certain circumstances where there are riots and what the law provides for these.

Cap. 73 describes an illegal gathering intending to create disorder and lawlessness. Sections 74 and 75 state that any person taking part in an illegal gathering is committing an offence. Section 76 states that a law enforcement officer can make a proclamation that the gathering is illegal and ask that those taking part disperse peacefully.

Section 77 states that if they refuse the police may do all things necessary for dispersing the persons so continuing to assemble and for apprehending them or any of them and if any person resists, may use all such force as is reasonably necessary to overcome such resistance and shall not be liable in any criminal or civil proceedings for having by the use of such force cause harm or death to any person. As for Section 78 it allows to call on military forces if police available is insufficient to disperse such assembly or is unable to control the situation the military shall have the same powers under the law.

Under the Criminal Procedure Code Act 1955 the military can also carry out arrests but should immediately hand over the arrested person to the police. Under the Defence Act that the sixth Assembly amended in May 2020 and was signed into force by President Danny Faure on May 19, 2020 provides under Section 35(b) that the Coast Guard and all members of the Seychelles Defence Forces get different powers including to assist the police in its functions and assume the same powers as the police in these instances. Different powers to arrest under Section 23 of the Maritime Law, the Fisheries Act 2014, where they get the powers of fishing officers as well as provide assistance to strengthen other laws namely customs, immigration, quarantine, pollution, safety, piracy, drug trafficking to name but some.

Where it does not have specific powers the Coast Guard will act in consultation with the ministry, agency and authority which hold the powers and under their guidance.

Under Section 35(c) the Coast Guard can do boarding at sea, seize and detain any vessel suspected of illegal activities, ask for documents, conduct chase at sea and arrest any person in connection to such offences at sea as well as on shore before handing over the said person/s to the police.

The law provides for members of the defence forces to carry out all of the above-mentioned. But then why the need for the amendments?

VP Afif explained that this is because the functions of the defence forces are described in our Constitution under Article 163(1) as follows:

- to defend Seychelles and its territory

- to assist the State in its international obligations

- in an emergency period, to give civil authorities assistance during disasters, to maintain peace and order if requested by the President

- to take part in civil works for national development.

“So where under the four provisions does it allow without ambiguity, for the defence forces to assist the police or other law enforcement authorities as stated under the amended Article 35 (b) of the Defence Act. Under the four clauses, Article 163 (1) of our Constitution today, it is not clear where to enter all the powers that its own Defence Act is giving the defence forces. It is for this reason that the Constitutional Review Committee on page 55 of the 2009 report stated that it has noted that the Constitution is not consistent with the powers that other laws give the defence forces. There followed propositions to amend Article 163(1) to allow the defence forces to protect us from all illegal activities and trafficking,” VP Afif detailed.

He reminded Assembly members that the above-mentioned committee was established on April 16, 2008. 

VP Afif went on to note that the public‘s main concern with the proposed amendments is that it will create a situation similar to the one under the second republic but he has assured that this cannot happen again in a modern democracy.   

The situation being referred to relates to illegal detention, imprisonment, disappearances, killings…

VP Afif further noted that contrary to the 1979 Constitution, the 1993 Constitution protects the rights and privileges of all Seychellois through the Seychellois Charter of Fundamental Human Rights and Freedom. Additionally there is a separation of power under the Constitution and an independent judiciary.

“What happened under the 1979 Constitution cannot be replicated by President Wavel Ramkalawan or any other presidents in the future elected under the Constitution dated 1993 because the military has no role to play in politics like it had in the second republic,” VP Afif stated.

He further added that if a military officer was to hurt a civilian in any way, the victim can file a constitutional case or file a case against the government and the military officer can also face punishment and sanction under the Defence Act.

Members of the Assembly had diverse views on the amendments. While members of the majority party Linyon Demokratik Seselwa (LDS) welcomed the amendments, members of the minority party ‒ United Seychelles ‒ argued that military officers will terrorise the public and create more mistrust and fear among the population. LDS members noted that members of the public welcome the presence of the military when they helped the police staged road blocks during the peak of the Covid-19 pandemic and when they assist authorities and the police during disaster situations.

Following a day-long debate Assembly members voted 24 in favour, nine against and zero abstention to approve the amendments.

Marie-Anne Lepathy