This is a question with an unusual answer, and it is worth stating plainly at the outset.
What the law does not provide
Part XVIII of the Organic Law on National and Local-level Government Elections contains no provision for withdrawing, discontinuing or abandoning a petition. Sections 206 to 227 deal with disputing returns, the requisites of a petition, the deposit, the Court’s powers, evidence, costs and the effect of a decision. Withdrawal is not among them.
The Election Petition Rules 2017 contain no such rule either. Rules 1 to 22 cover filing, fees, security, service, notice to appear, competency, the three pre-trial events, trial, joint trials, summary determination, costs, payment out of the deposit, practice directions and relief from the Rules.
And there is no form. Schedule 2 prescribes only four: Form 1 (petition), Form 2 (notice of petition), Form 3 (notice to appear) and Form 4 (objection to competency).
In an ordinary civil proceeding, Order 8 Rule 61 of the National Court Rules 1983 allows a plaintiff to discontinue — before the close of pleadings without leave, and afterwards with consent or leave, which may be granted on terms.
The Election Petition Rules are a self-contained code of the practice and procedure of the National Court of Justice relating to the conduct of election petition proceedings and related matters, made under Constitution section 184, section 212(2) of the Organic Law and section 8 of the National Court Act (Chapter 38). They do not adopt the National Court Rules.
The reason for the gap
Section 206: the validity of an election or return may be disputed by petition addressed to the National Court and not otherwise.
The subject matter is whether an electorate is properly represented in the Parliament. Section 221 requires the Registrar to send a copy of the petition to the Clerk of the Parliament on filing, and a copy of the order after trial. Section 216 requires findings of offences to be reported to the Speaker, the Electoral Commission, the Public Prosecutor and the Commissioner of Police.
A scheme built that way does not readily contemplate a petitioner simply walking away, particularly where a settlement with the successful candidate might be the reason.
The routes that exist
- Apply to the Court. The petition is before the Court, and the Court controls it. An application for leave to withdraw, or for the petition to be dismissed by consent, is made to the Judge Administrator or the Judge dealing with the matter, supported by an affidavit explaining the reason.
- Raise it at a listed event. Rule 13(3)(l) allows the Judge Administrator at the directions hearing to consider such other matters as may aid in the prompt disposition of the petition — wide enough to encompass an application to bring it to an end.
- Rule 18 — summary determination. Where a party has not done any act required to be done by or under these rules, the Court may, on its own motion or on application, order that the petition be dismissed where the defaulting party is the petitioner. A petitioner who ceases to prosecute the petition will, in practice, reach that outcome.
- Rule 22(1) — the Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises. That is a power to relieve against the Rules, and is relevant where the practical obstacle to disposing of the matter is a Rules requirement.
Allowing a petition to be dismissed under Rule 18 for default is the worst of the available outcomes. It ends the petition, but on a footing that invites a costs order under section 223 — the National Court may award costs against an unsuccessful party to a petition — without any of the terms that a negotiated end might have secured.
Come to court and make the application.
Two things to settle
Section 224: if costs are awarded to a party against the petitioner, the deposit lodged under Section 209 is applicable in payment of the sum ordered, but otherwise the deposit shall be paid to the petitioner.
Rule 20(1) provides the clean mechanism: where parties agree in writing for the security deposit to be paid out to any party or parties, the Registrar shall pay out the security deposit as agreed between the parties without requiring any further authority or action.
So an agreement in writing among all parties disposes of the K5,000 without any further order. That is the single most useful provision when a petition is being brought to an end by agreement. See the security deposit.
Section 225: all other costs, including any balance above the deposit payable by the petitioner, are recoverable as if the order of the Court were a judgement of the National Court, and the order may be entered as a judgement of the National Court and enforced accordingly.
A petitioner ending a petition should therefore settle costs expressly, in writing, with every respondent — the successful candidate and the Electoral Commission. See costs of an election petition.
An agreement whose substance is that the petitioner receives a benefit in exchange for abandoning a challenge to an election raises obvious difficulties, given that the conduct complained of may itself involve bribery or undue influence, and that section 215(2) preserves prosecution.
Confine any agreement to costs and the deposit, and put the reason for ending the petition before the Court candidly.
Sources
- Organic Law on National and Local-level Government Elections — ss 206–227
- Election Petition Rules 2017 — rr 13, 17–20, 22; Sch 2
- National Court Rules 1983 — O 8 r 61
- National Court Act (Chapter 38) — s 8
The absence of a withdrawal or discontinuance provision is stated on a reading of Part XVIII of the Organic Law and the whole of the Election Petition Rules 2017 as amended in 2022. Practitioners should also check for any practice direction issued under Rule 21, which permits the Registrar, in consultation with the Chief Justice, to issue directions on matters concerning the Rules.
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.