The Organic Law on National and Local-level Government Elections does not list grounds in one place. They emerge from sections 212, 215 and 218 read together.
Section 215
(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.
(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.
(3) The National Court shall not declare that a person returned as elected was not duly elected, or declare an election void —
(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or
(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
Subsection (1) is mandatory and needs no proof of effect on the result. If the successful candidate committed or attempted to commit bribery or undue influence, the election shall be declared void. There is no additional threshold.
Everything else falls under subsection (3) — an illegal practice by someone other than the candidate and without their knowledge or authority, or any illegal practice other than bribery or undue influence. There, the Court must be satisfied of two things: that the result of the election was likely to be affected, and that it is just.
So the single most important question when framing a petition is which limb it falls under, because it determines what must be pleaded and proved.
Section 178
Section 178(1) lists them for national elections. They include publishing an electoral advertisement, handbill or pamphlet without the name and address of the person authorizing the publication; printing or publishing without the name and place of business of the printer; distributing material containing a representation of a ballot-paper … and having on it any directions intended or likely to mislead; distributing material containing an untrue or incorrect statement intended or likely to mislead; wilfully informing an elector during the polling period that he is not enrolled or entitled to be enrolled … when as a fact he is; obstructing, damaging or interfering with a public street or road with the intention to interfere with the conduct of an election; assaulting or threatening to assault a Returning Officer, other polling officer or police officer assisting; and inciting or encouraging, whether publicly or otherwise, disturbances to interfere in an election.
A person guilty of an illegal practice is liable to a penalty of a fine not exceeding K1,000.00 or imprisonment for a term not exceeding six months — s 178(3).
Section 218
(1) Subject to subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.
(2) Where an elector was, on account of such absence, error or omission, prevented from voting, the Court shall not, for the purpose of determining whether it affected the result, admit evidence of the way in which the elector intended to vote.
A petitioner who alleges that electors were prevented from voting cannot prove the effect on the result by calling those electors to say who they would have voted for. That evidence is inadmissible for that purpose.
The effect on the result must be established another way — typically by the numbers: how many electors were affected, and what the winning margin was.
Section 219 imposes a further restriction. The Court shall not admit the evidence of a witness that he was not permitted to vote unless the witness satisfies the Court that he claimed to vote … under that provision of this Law under which he was entitled or might be permitted to vote, and that he complied with the requirements of this Law relating to voting by electors in so far as he was permitted to do so.
What to plead
- That the person was a candidate, and is the successful candidate.
- The act — what was given, offered or threatened, to whom, when, where, and by whom.
- That it was the candidate who committed or attempted it. Conduct by a supporter falls into subsection (3).
No allegation about the effect on the result is required on this limb — the consequence is mandatory.
- The illegal practice or the error, absence or omission, pleaded as facts under section 208(a).
- The numbers — how many votes or electors were affected, and the winning margin. This is the heart of the “likely to be affected” requirement, and it must be pleaded, not merely asserted.
- Why it is just that the candidate be declared not duly elected or the election declared void. This is a separate requirement, and it is often overlooked.
Section 214 limits inquiry: the Court shall inquire whether or not the petition is duly signed, and as to Rolls and voting may inquire into the identity of persons and whether their votes were improperly admitted or rejected, assuming the Roll to be correct — but the Court shall not inquire into the correctness of a Roll. A petition whose real complaint is that the Roll was wrong is in difficulty.
Section 217 cuts the other way: the Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
On what the Court may then order, see the available orders.
Sources
- Organic Law on National and Local-level Government Elections — ss 178, 208, 212–219
- Election Petition Rules 2017 — r 22
- Criminal Code Act (Chapter 262)
The PacLII page for the Criminal Code Act (Chapter 262) is a landing page; the consolidated text is not reproduced there in HTML.
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.