Section 212(1) of the Organic Law on National and Local-level Government Elections sets out what the National Court may do.
Section 212(1)
- adjourn;
- compel the attendance of witnesses and the production of documents;
- grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take extracts;
- order a re-count of ballot-papers in an electorate;
- examine witnesses on oath;
- declare that a person who was returned as elected was not duly elected;
- declare a candidate duly elected who was not returned as elected;
- declare an election absolutely void;
- dismiss or uphold a petition in whole or in part;
- award costs;
- punish contempt of its authority by fine or imprisonment.
And by subsection (3), the Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
The list is not exhaustive. Subsection (4) confirms the point from another angle: without limiting the powers conferred by this section, the power to declare a person not duly elected or an election void may be exercised on the ground that illegal practices were committed in connection with the election.
Section 226
Effect shall be given to a decision of the National Court as follows —
(a) if a person returned is declared not to have been duly elected, he shall cease to be a member; and
(b) if a person not returned is declared to have been duly elected, he may take his seat accordingly; and
(c) if an election is declared absolutely void a new election shall be held.
| Order | Provision | Consequence |
|---|---|---|
| Petition dismissed | s 212(1)(i) | The return stands. Costs may follow — s 223 |
| Person returned declared not duly elected | s 212(1)(f) | He shall cease to be a member — s 226(a) |
| Another candidate declared duly elected | s 212(1)(g) | He may take his seat accordingly — s 226(b) |
| Election declared absolutely void | s 212(1)(h) | A new election shall be held — s 226(c) |
| Re-count of ballot-papers | s 212(1)(d) | An interlocutory step, which may lead to (f), (g) or (h) |
| Petition upheld in part | s 212(1)(i) | Relief is shaped to what is proved |
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.
Shall — the Court has no discretion once the finding is made, and no separate question of effect on the result arises. Compare section 215(3), where the Court must be satisfied that the result of the election was likely to be affected and that it is just.
Section 215(2): a finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.
Section 212(1)(d) and section 213
The Court may order a re-count of ballot-papers in an electorate. Note that leave to inspect under paragraph (c) covers the Rolls and other documents … except ballot-papers — so a re-count is the route by which ballot-papers themselves are examined.
Section 213 supplies a further power: where it is proved that a ballot-paper issued under section 100, 141, 142 or 143 has, in an election, been marked by a person who was not entitled to vote, the Court may require production of the postal vote certificate or other related papers — and the Court may reject a ballot-paper.
Sections 216 and 221
Section 216 — where the Court, in the trial of a petition, finds that a person has committed an offence under this Law or any other law, the Registrar shall promptly report the finding to the Speaker, the Electoral Commission, the Public Prosecutor and the Commissioner of Police, and forward all papers relevant to the finding to the Commissioner of Police.
Section 221 — the Registrar shall promptly after the filing of a petition forward to the Clerk of the Parliament a copy of the petition, and after the trial a copy of the order of the Court.
A finding of bribery voids the election under section 215(1), triggers the section 216 report to the Public Prosecutor and the Commissioner of Police, and expressly leaves prosecution open under section 215(2).
Section 220
A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.
There is no appeal to the Supreme Court from a decision on an election petition. The only avenue is the Supreme Court’s inherent power to review all judicial acts of the National Court under Constitution section 155(2)(b) — see reviewing an election petition decision.
Section 223 — the National Court may award costs against an unsuccessful party to a petition.
Section 224 — the K5,000 deposit is applicable in payment of the sum ordered, but otherwise the deposit shall be paid to the petitioner.
Section 225 — other costs, including any balance above the deposit, are recoverable as if the order were a judgment of the National Court. See costs.
Sources
- Organic Law on National and Local-level Government Elections — ss 212–216, 220–226
- Constitution — s 155(2)(b)
- Election Petition Rules 2017 — rr 16, 19, 20
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.