This application is supported by the affidavit of the applicant in which he echoes the grounds of application and further depons that
he read Act 17 of 2005 and the rules made there under. That no election petition can be filed before the electoral commission publishes results in the gazette. That the next elections
are to be held in 2011 therefore no decision has been made by the electoral commission to initiate an appeal by a petition. Therefore
this petition is too early because the next elections are yet to be organized.
In his affidavit in reply, the respondent to this application Maket Latif deponed that he filed the petition under Article 80 (2) (f) of the Constitution to declare the applicant not qualified to contest
as member of parliament since he was convicted of a crime of corruption. That the petition is proper before court because it is not
brought under the Parliamentary elections Act and Rules made there under but under Article 80 (2) (f) of the Constitution seeking to bar the applicant from contesting and not removing him from Parliament.
That the mere use of the word Election Petition does not mean that the petition is for nullification of elections but to stop the
applicant from contesting as M.P since he does no qualify pursuant to Article 80 (2) (1) of the Constitution. That court should look at the substance/merit of the petition
rather than a technicality.
I have considered this application and the submissions by respective counsel. I have related the same to the law. This petition is filed and registered as an election petition thus making the challenge by the
applicant herein proper.
I agree with the submission by Mr. Ntambirweki, Kandeebe learned counsel for the applicant that the petition filed by Mr. Maket Latif is premature. Although the petitioner has a noble objective of trying to stop someone he considers unqualified to stand for election
as a member of parliament, the law appears not to have taken care of his timing of the petition.
Article 80 (2) of the Constitution enumerates situations where a person is not qualified for election as a member of parliament. These
situations are inter alia where one is under a sentence of death or sentence exceeding nine months without option of a fine or where a person has within seven years immediately
proceeding the election been convicted of a crime involving dishonesty or moral turpitude or has within 7 year’s immediately
preceding the election been convicted of an offence under any law relating to elections conducted by the electoral commission.
This constitutional provision appears to have been operationalized under the Political Parties and Organizations Act 8 of 2005. S.10
(1) thereof a political party or organization shall in its internal organization, comply with the provisions of the Constitution,
in particular articles 71 and 72 of the Constitution. Also under S.61 (1) (d) of the Parliamentary Elections Act 17 of 2005, the election of a candidate as a member of parliament shall only be set aside
if the candidate was at the time of his or her election not qualified or was disqualified for election as a member of parliament.
It would appear therefore that for one to challenge somebody as not qualified to stand as a member of parliament it has to be after
a process conducted by the national electoral commission under the Parliamentary Elections Act and the Parliamentary Elections (Petitions)
Rules S.I 141-2.
Vetting of candidates during primaries is a political party or organization’s internal matter which has to be carried out by
a given party or organization in a manner envisaged under S.10 (1) of the Political Parties and Organizations Act 17 of 2005.
In the instant case, I agree with the submissions by the applicant that Election Petition 2 of 2010 is premature and untenable in
law. Apart from the respondent expressing a wish to contest as a candidate for Member of Parliament, his candidature has not been taken cognizance of by the national Electoral Commission to initiate challenge by any voter or candidate
who loses the elections as envisaged under the Parliamentary Elections Act. (See (S.60) and Article 64(5) of the Constitution).
By the time of this petition, the respondent had not presented himself for nomination to be a contestant in the next general elections.
Article 80 (2) under which the petition is filed is not an enabling law through which a petition can be filed. In view of this holding,
it is futile to consider whether the petition was duly served onto the respondent in accordance with the law.
Regarding the interim injunction by the learned assistant Registrar,
Under Rule 24 of the Parliamentary Elections (Election Petition) Rules.
“All interlocutory questions and matters arising out of the trial of the petition other than those relating to leave to withdraw a
petition shall be heard and disposed of, or dealt with, by a judge; and references in these rules to court shall be construed accordingly.”
This is an express and mandatory provision of the law ousting the jurisdiction of a registrar from handling interlocutory matters
in election petitions.
Had this petition been timely and properly before court, the learned registrar’s order would have been void ab initio. The interim order issued on 27th August 2010 is hereby vacated and declared to be of no legal effect.
For the reasons I have given hereinabove, I will grant this application and order that Election Petition 0002/2010 be and is hereby
struck off the register. I note that the petitioner’s intentions were noble and since the respondent is accountable to his
voters, I will order that each party meets its costs.
Lillian C.N. Mwandha
Both parties in court.
Court Clerk Fatuma Muwando.
My instructions were to read and deliver the ruling and I have done so. Ruling delivered.