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Trust Maanda
Post Correspondent
IT is very easy for a losing candidate in an election to cry foul and rush to court to seek an order nullifying the election of the winning candidate.
But an election petition has to be on the grounds that are provided for in the law.
The law sets out the requirements for setting aside an election of a winner in a Parliamentary or Presidential election.
The Constitution sets out broad principles of a free and fair election.
The Electoral Act provides guidelines of the electoral processes, conduct of elections and the grounds on which an election can be set aside on the application of a losing candidate.
Under Section 155 of the Electoral Act, the Electoral Court can set aside an election on the grounds of electoral malpractice, only in circumstances where it was committed with the knowledge or consent of the successful candidate or his or her agents, and if the malpractice materially affected the result of the election.
Furthermore, if malpractices were committed by a candidate’s agents, but where not sanctioned by the candidate nor his or her chief election agent, or if they took reasonable measures to prevent them, or if the malpractices were trivial and not widespread, then the election cannot be set aside.
If there was violence, there must be proof of a link between the perpetrators of violence and the winning candidate.
Violence must have been perpetrated with the knowledge and at the behest of the candidate and must have been connected to the election.
Under Section 177 of the Act, the Electoral Court can set aside an election on the grounds of mistake or non-compliance with the Act only if: the election was not conducted in accordance with the principles laid down in the Act, and the mistake or non-compliance affected the result of the election.
The court may make a finding that the respondent was not duly elected on any of the reasons stipulated or implied in the law if such grounds are specifically pleaded in the petition.
Section 167 of the Electoral Act states that: “A petition complaining of an undue return or an undue election of a member of Parliament by reason of want of qualification, disqualification, electoral malpractice, irregularity or any other cause whatsoever may be presented to the Electoral Court by any candidate at such election.”
The above provision sets out wide grounds on the basis of which an election petition may be brought, but any petitioner must indicate specifically the grounds upon which she or he requires the respondent’s election to be voided.
“The petitioner should plead his or her case with specificity so that the respondent is put on sufficient notice concerning the case he or she has to answer and for the court to understand the petitioner’s case.
“The respondents and the court must be provided with facts in order to understand the petitioner’s case.
The petition can be dismissed as disclosing no cause of action.
The court will not allow an amendment to an election petition in circumstances where the amendment contains additional charges.
At the conclusion of an election petition, the court determines whether the respondent was duly elected, and such a decision must be arrived at on the basis of what is specifically pleaded in the petition.
The irregularities and other illegal and corrupt practices complained of must not be vague and imprecise, overarching and all-embracive so that they are not difficult to respond precisely to.
For deciding whether an election can be set aside on any alleged ground, the courts have to consult and are bound by the provisions of the law governing the particular election.
But if other irregularities arise from the evidence on what has not been specifically pleaded in the papers, the Electoral Act itself has several provisions through which reports must be made to Parliament and to the Prosecutor-General for further consideration of matters, prosecution of individuals or rectification of administrative shortcomings.
For example, if corrupt or illegal practices are proved or revealed at such a trial, the court is required to submit a report to the Prosecutor-General for prosecutions and to the election management body for relevant administrative action.
Petitioners are warned against political abuse of election petitions since they are not a ground for fighting political battles.
The petitioner ought to be limited to the complaints as specified in the founding papers.
The courts can only function within the provisions of that law and not act outside of it.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646.
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