Competency is not the same as merit. An objection to competency says the Court cannot hear the petition, whatever its merits.
Section 210
Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.
— Organic Law on National and Local-level Government Elections
Section 208 sets out the five requisites; section 209 requires the K5,000 deposit. Section 210 makes compliance a precondition to the petition being heard.
So an objection to competency is, in substance, an assertion that section 210 bars the hearing.
Rule 12
A respondent who objects to the competency of the petition shall, within 21 days after service of the petition —
(a) file an objection in accordance with Form 4 giving at least three clear days’ notice of intention to mention the objection before the Judge Administrator; and
(b) serve a copy of the objection on the petitioner and on each of the other respondents; and
(c) file and serve all affidavits in support of the objection.
Paragraph (c) requires all affidavits in support to be filed and served within the 21 days. A respondent cannot lodge a bare objection and assemble the evidence later.
Paragraph (a) adds a second timing element: at least three clear days’ notice of intention to mention the objection before the Judge Administrator. Build that into the 21-day plan.
What objections are usually about
| Ground | Provision |
|---|---|
| The petition does not set out facts — only conclusions or argument | s 208(a) |
| The petition does not specify the relief claimed | s 208(b) |
| The petitioner was not a candidate, nor qualified to vote | s 208(c) |
| There are fewer than two attesting witnesses, or their occupations or addresses are not stated | s 208(d) |
| The petition was filed outside the 40 days, or in a place that is not a registry or provincial court house | s 208(e) |
| The K5,000 deposit was not made, or not at the time of filing | s 209 |
| The grounds pleaded do not engage section 215, or fail to plead that the result was likely to be affected | s 215(3) |
| A person is named as a respondent without leave | r 3(c) |
Two witnesses, both occupations, both addresses — and Form 1 requires the address precisely by section and lot number or where no section and lot number by street name or in the case of a village or settlement, state name of place precisely by referring to province, district and nearest town.
Because these are requirements of the Organic Law, they cannot be cured by amendment after the 40 days, and Rule 22 relief is not available. See the time limit.
What limits an objection
(1) The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.
(2) Substantial compliance with any form, including a petition, prescribed by these Rules shall be regarded as sufficient.
(3) No petition or other process provided for by these Rules shall be struck out or dismissed for want or defect of form unless the want or defect is so extensive as to amount to substantial non-compliance or appears to demonstrate a deliberate abuse of process.
(4) Nothing in this rule excuses a failure to comply with a requirement of the Organic Law, however when determining an allegation of failure to comply with a requirement of the Organic Law, the Court shall pay close regard to the requirements of s 217 of the Organic Law.
Subrules (2) and (3) set a demanding standard for an objection based on form: substantial compliance … shall be regarded as sufficient, and dismissal for defect of form requires the defect to be so extensive as to amount to substantial non-compliance or to show a deliberate abuse of process.
Subrule (4) preserves the position for Organic Law requirements — but even there the Court must pay close regard to section 217: the National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities.
A respondent framing an objection should therefore identify precisely which Organic Law requirement is said to be unmet, rather than relying on defects of form in the Rules’ prescribed documents.
Rule 16
The Court shall deal with the petition and any objections to the competency of the petition at the trial of the petition.
So an objection filed at day 21 is not usually heard as a separate preliminary application. It is mentioned before the Judge Administrator, dealt with at the directions hearing as one of the matters under Rule 13(3)(k), the pre-trial conference makes arrangements for hearing of any notice of objection to competency under Rule 14(3)(l) — and it is decided at the trial.
Both sides must therefore prepare the merits and the competency point together. A petitioner cannot assume the objection will dispose of itself first; a respondent cannot rely on the objection to the exclusion of the substantive defence.
Under Rule 19(1) the Court may make such orders as to costs as it deems fit, and Schedule 3 Part 2 provides a fee for any other applications. A wholly unsuccessful objection may attract a costs order. See costs.
Sources
- Election Petition Rules 2017 — rr 3, 12–16, 19, 22; Sch 2 Forms 1, 4; Sch 3
- Organic Law on National and Local-level Government Elections — ss 208–210, 215, 217
Rule 22 was repealed and replaced by rule 2 of the Election Petition (Miscellaneous Amendments) Rules 2022.
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.