CHAPTER 7

GROUNDS FOR ELECTION PETITION

Under section 20 of the Representation of the People Act, 1992 (PNDCL 284), the election of a candidate shall be declared void on an election petition if the High Court is satisfied:

(a) that general bribery; general treating, general intimidation or other misconduct or circumstances, whether similar to those specified in the Act or not, have so extensively prevailed that they may reasonably be supposed to have affected the result of the election;

(b) that there has been non-compliance with a provision of the Act or of the regulations and that it appears the election was not conducted in accordance with the principles laid down by the law and that the non-compliance affected the result of the election; 11

(c) that a corrupt or illegal practice was committed in connection with the election by the candidate or with the knowledge or consent of the candidate or by an agent; or (d) that at the time of the election the candidate was not a qualified person to stand for election.

Notwithstanding the existence of the above-mentioned grounds which may lead to the cancellation of the election results by the High Court, the Court shall not declare the results of the successful candidate void on proof of two factors:

(a) where at the hearing of an election petition, the High Court finds that a candidate has been guilty through his agent or representative of corrupt or illegal practice, and the High Court further finds that the candidate has proved to the satisfaction of the High Court:

(i) that the corrupt or illegal practice was not committed by the candidate or with the knowledge or consent or approval of the candidate; or

(ii) that even though there Was corrupt or illegal practice at the election; the candidate took reasonable steps to prevent the commission of such events; and

(iii) that in all other respects, the election was free from a corrupt or an illegal practice 011 the part of the candidate; and

(b) where the High Court finds that there has been failure to comply with the provision of the Act or of the regulations, and the court further finds:

(i) that election was conducted in accordance with the Act and the regulations, and

                (ii) that the failure did not affect the result of the election                                  

   As can be seen, under the grounds upon which the High Court may cancel election results, there appears to be some wide discretionary powers at the disposal of the trial court.

As with all discretionary powers, this discretion should be exercised in accordance with sound judicial practices. Such a discretion should be exercised devoid of any arbitrary and or capricious use of power and in all things the discretionary power shall be deemed to imply a duty to be fair and candid.

Scrutiny as further ground for canceling of election result

Another ground or basis for possible cancellation of election results is scrutiny, that is, the examination directed by the High Court of the votes cast at an election.

This situation arises where on an election petition, the election is claimed for an unsuccessful candidate on the ground that the candidate had the majority of lawful votes. In that event, the court may direct an examination of the votes cast at the election by the Electoral Commission or any other person authorised by the court

On a scrutiny, votes cast by the following persons shall be struck off and not counted in the tabulation:

(a) The vote of a person,

(i) whose name was not included in the register of the polling station where the vote was recorded;

(ii) a person whose name was not included in that part of he register which contained the names of the voters assigned to the polling station where the vote was recorded; and

(iii) a person who did not have the right under the Act or regulations to vote at the polling station at which the vote was recorded;

(b) the vote of a person whose vote was procured by bribery, treating or undue influence;

(c) the vote of a person who committed or procured the commission of personating at the election;

(d) the vote of a person proved to have voted more that once at the election or in more than one constituency; and

(e) the vote of a person who is disqualified from voting at the elections because of a conviction for a corrupt or illegal practice or because of a report made by a court under the Act.

It should be emphasized that a tendered ballot paper, proved on scrutiny to be a valid, vote shall be added to the poll.

In order to appreciate the legal implications and effect of scrutiny, it is important that the decision of Iris Heward-Mills] (now Iris May Brown J A) in the case of Enos v Electoral Commission [1999-2000] I GLR 564 at 565 be seriously considered and applied.

It is, however, important to stress that a whole election is not to be invalidated by the High Court because an irregularity had been established. If the trial judge is satisfied that, the established irregularity/irregularities apart, the results, taken as a whole, reflect the expressed will of the majority of voters at that constituency, then the results should be upheld by the trial judge.