Winners and Losers

At the preliminary count, candidates and their agents are accorded some measure of participation. The count takes place at each polling station and is done under the supervision of the Presiding Officer. There, the number of voters who voted, the number of spoilt ballots, the number of unused ballot papers, a check by the Presiding Officer that all ballot papers have been accounted for, the number of ballot papers rejected: all these matters are counted "in the presence" and "in full view" of candidates and their agents. Candidates and their agents are also accorded "full opportunity" to "examine each ballot paper". And by Section 39(6) of the Act they may raise objections concerning "any ballot paper found in the ballot box".

Candidates and their agents enjoy similar rights of engagement at the final count. At that level, matters are supervised by the Returning Officer for the constituency as a whole. Among these rights is the freedom to "see the votes" cast for each candidate, as compiled on the first count. Further, candidates and their agents are allowed to see and examine all ballot papers rejected there. And Section 41(6) re-states what Section 39(1) stipulates in respect of the preliminary count. It reads: "If at the final count of the votes none of the candidates or their representatives are present, it shall be the duty of the returning officer or election clerk to secure the presence of at least two electors who shall remain in attendance until the final count of the votes has been completed".

This notwithstanding, the ultimate authority charged with responsibility for determining the poll are, at one level, the Presiding Officer and, at the other, the Returning Officer. Indeed, candidates and their representatives are entitled to freely raise objections as to whether ballots should properly be deemed to be accepted or rejected. Yet, Section 39(6) of the Act provides that the Presiding Officer "shall decide every question arising out of the objection". Needless to say, the decision of a Presiding Officer may be overturned on the final count. There, the Returning Officer is in charge. The person appointed must determine whether "any of the votes" cast for particular candidates "should be rejected". He or she must determine whether any of the votes rejected by the Presiding Officer should, in fact, be treated as having been "validly cast for any, and, if so for which, candidate". The Returning Officer must then add up the total number of votes cast for each candidate. And, in doing so, he or she must obviously take account of any votes rejected by a Presiding Officer but which he or she thinks should not have been so rejected.

Clearly, the rejection of ballots may be decisive. That is the case in special environments like ours, where constituencies comprise comparatively small numbers of electors and family ties play a huge part in elections. As a result of this, every vote is a treasure. And, so, a single rejected ballot may spell the difference between victory and defeat.

This, among other factors, might well explain why the Act at Section 39(2) prescribes in simple, ordinary, precise and unambiguous language the circumstances in which a ballot may be rejected. "In counting the votes", it is stated, "the Presiding Officer shall reject all ballot papers – (a) which have not been supplied by him; (b) which have not been marked for any candidate; (c) on which votes have been given for more than one candidate; or (d) upon which there is any writing or mark by which the voter could be identified". Then, most significantly, the sub-section goes on to prescribe that no ballot paper ought to be rejected because of "(i) any writing, number or mark placed thereon or any mark, other than the voter's mark, or any smear or smudge from any cause whatsoever arising, unless the ballot paper fails to convey the intention of the voter to vote for a particular candidate". The Act also provides that a ballot paper may not be rejected because of the Presiding Officer's failure, on handing the elector a ballot paper, to remove the attached counterfoil, or, to an omission by the official to place his or her initials on any ballot paper.

In effect, the critical factor which determines whether a ballot should be accepted as valid or rejected as invalid, is whether or not the marking on the ballot paper indicates an intention by an elector to vote for a particular candidate. On this, the law is clear. And in light of such unmistakable clarity, one is left to wonder why, as happens time and again, a candidate wins the poll on election night and loses the following morning. Even more perplexing, that is to say, difficult to understand, is the practice, albeit occasional, where the final count comprises, not one event but, three, four or, even, five recounts.

Interestingly, our learned colleague, G.R., reminds that a case may be made that the Act intended, as at the level of the preliminary count, that there should be no more than one final counting exercise. Tentatively, that is to say, at first glance, this much may be argued. At Sections 39(6), 41(2), 41(6), 41(7), 41(8), 44(1) and 72 the legislation is pre-occupied with the words, "the final count". And, at Section 40, the expression, "the preliminary and final count", is used. The words denote the singular, "count", and not the plural, "counts". And, there is nothing in the Act's interpretation clause to the effect that the singular implies the plural. Thus, if the words are to be given their natural, ordinary and grammatical meanings, as they should, the case suggested above might not be so difficult to establish. The suggestion merits closer examination.

Now, what if at the end of the counting process two or more of the candidates obtain an equal number of votes cast? Sections 41(8) calls the Returning Officer, or in his or her absence, the Election Clerk, to the rescue. It states as follows: "Whenever on the final count of votes an equality of votes is found to exist between any two or more candidates and an additional vote would entitle one of the candidates to be declared elected, the returning officer, or election clerk, as the case may be, if he is an elector of the constituency for which the election is held, may give that additional vote". This represents an exception to the rule that a Returning Officer is not entitled to vote at an election in a constituency for which he or she is the Returning Officer. And, what if the Returning Officer or Election Clerk is unable to cast that vote? In that eventuality, the House of Assembly is authorized to break the deadlock. Section 46 of the Act explains: "If the returning officer is not an elector, or if, being an elector he declined to vote, he shall make a special return of the election, and the House of Assembly shall have the right by resolution to choose one of the candidates to be the member for that constituency."

A final point is that the results of a final count may not be final. That is so because of the right given to certain persons to present complaints before the High Court. Section 65 of the Act provides for three categories of such persons: firstly, someone who voted or had a right to vote at the election; secondly, someone claiming that he or she should have been returned as the successful candidate; and, thirdly, someone alleging to have been a candidate at the election. These complaints must be presented by way of an election petition. Further, this must normally be done within twenty-one days after the declaration of the winning candidate. But, where the complaint alleges "corrupt practices", including the payment of money or other reward, the petition may be presented within twenty-eight days "after the date of payment".

Section 66 defines the issues for determination by the trial judge. There are two such issues. One is whether or not the elected parliamentarian about whom the complaint is made was duly elected; and, if not, whether some other person was, in fact, the duly elected candidate. The second issue is whether or not the election is void. If it is found to be so, there is no winner and new elections must be held in the particular constituency. The decision of the trial judge is final. That is to say, it cannot be appealed against.

Copyright © William Para Rivière, November 2013