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Election Petition - Case Study

This week we study the case of Mbaakanyi vs The Independent Electoral Commission. It was a matter before the High Court where an unsuccessful candidate brought an election petition seeking orders declaring the verification and counting of ballots improper.

She further sought an order directing the High Court to oversee a recount. The Respondents objected, arguing that the relief she sought was not recognised by law. I will focus on the key principles learnt from that case as opposed to its facts.

The court observed that because of the potentially disruptive effect of “successful election petitions on the affairs of State, “election petitions should not be embarked upon lightly.”

In essence, the courts will not entertain every trifling complaint.  The court cited a previous case where it held that “the power of the courts to consider the regularity of elections is not derived from any inherent powers nor does it arise from the common law but is to be found within the corners of the Electoral Act only.

It is important therefore before approaching the courts with an election petition to ensure that the relief you seek is authorised by law. Kirby J, observed that the courts would be slow “to disturb an election which on the face of it appears fair and regular”. He further observed that persons who allege that an election was not regular, “have a democratic right to challenge it but such challenge must not be frivolous, mischievous or ill-founded but be based on substantive grounds”.

Where there is a failure to comply with a mandatory requirement of the Act, a petition is a nullity and “the court has no power to condone irregularities”. Mandatory provisions are those that must be complied with without fail. As such the first port of call for election petitioners should always be the electoral Act as opposed to their individual sense of fairness and they must never hope on the courts’ general capacity to ensure equity.

Further, in that case. The respondents argued that without the affidavit of the one of the candidates or written notice that one of the candidates had been duly notified, as required by the Act, the petition should to be dismissed for non-compliance with s 116 of the Electoral Act.  We have dealt with the notice requirement in previous columns. To this challenge, the court ruled that there was no requirement that the opportunity to be joined as a co-petitioner must be given in writing. Further, there was no guidance given in the Act as to the manner in which this is to be proved.

Rather, it is sufficient for the petitioner to attests to having done so on oath. What we learn from this principle is that notice to give other petitioners an opportunity to

join as petitioners does not take any specific form. I would however, strongly advise that petitioners should where they cannot effect service personally, give such notice in writing especially by registered post or courier, to make their burden of proof lighter.

The court observed that the limitation of orders it can give was a deliberate act by the legislature and that Parliament has set the standards high “so that it will not be easy to upset the result of an election which has been generally free and fair but in which some mistakes may have been made, as will almost invariably be the case”.

We learn here that not any mistake, even if genuine will suffice to upset an electoral result. The significance of such a mistake or irregularity must be proven by reference to the Act. The following words from another case, were quoted by Kirby J;  ‘We may therefore conclude that the Legislature did not desire an election to be set aside lightly; it regarded it as a matter in which the court should act with particular caution and circumspection; no matter how grave the mistake or non-compliance may be the court may not declare an election void except in the event mentioned in the section.’

The court observed that it is the practice in Botswana that, immediately following a general election, Parliament is convened, members sworn in, and the business of the house commenced and that a successful election petition may thus cause considerable disruption. It further observed that it did not have the benefit of the specialised training given to IEC officials to conduct or supervise recount nor was it permitted by law.

In that case security for the petition was given outside the timelines given in the Act. As such the petition had to fail on that ground also. “Failure to strictly comply with any of the time limits set by the Act in relation to election petitions nullifies the petition” and the court has no discretion to condone the filing of security out of time. Petitioners are therefore warned that strict adherence to timelines is necessary for any petition to succeed. An election petition is not a normal or ordinary petition but one governed strictly by the Electoral Act. All electoral deadlines are to be strictly complied with.

“Petitioners must ensure that they allow proper time for service before the deadline, as they should be aware that excuses or explanations for late filing cannot avail them”.

For the above reasons the petition was dismissed.

Chief On Friday



One million Pula for toilet? Are you crazy?

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