Voter registration and the resolution of registration disputes

Kgosietsile Ngakaagae | Friday September 28, 2018 13:27

That is a different matter to whether they have a right to vote. At any other time, any person who claims to be entitled to registration may, if he is not already a voter, make an application for registration by attending before a registration officer for the constituency which contains that polling station in respect of which he claims to be entitled to registration. The problem comes in a situation where an application for registration is rejected, objected to or where registration is cancelled.

 Appeals under the Electoral Act are made to magistrates. For example, an applicant whose application has been rejected under section 10(6) may appeal to a magistrate. To make an appeal, one must complete a “Form F”, and deliver it to the principal registration officer for the constituency where they applied within a period of seven days after the rejection of the application. This time requirement emphasises the need for early registration. One may be denied a right to appeal where their rejection happened on the last day of registration as compliance with the ten day notice would be impossible. The appeal process is simplified. On receipt of any notice of appeal the principal registration officer sets down the appeal for hearing before a magistrate and the magistrate appoints a place, expeditiously, for the hearing. Once the Principal Officer has filed the matter with court, he or she is obligated to notify the appellant of the day and place appointed by the magistrate for the hearing.

Magistrates courts are not normally review courts nor are they appellate court. As such the powers conferred on them under this legislation are unusual. They are given to facilitate access to justice. The High Court is not capacitated to deal with all appeals flowing in from all over the country. The other reason is to ensure speedy access to justice and further to reduce attendant costs. Magistrates courts can be found in almost every corner of the country.

The fact that one has successfully registered does not mean that they are out of the woods yet. Any person whose name is included in a roll of voters for any constituency may object to the inclusion of any other person’s name appearing therein. This provisions is intended among others to guard against voter fraud and voter trafficking. An objection is made in a prescribed “Form G”, and is delivered to the principal registration officer for the constituency concerned within 21 days in the case of the supplementary roll, and 42 days in the case of the general roll. On receipt of an objection, the principal registration officer sets down the objection for hearing before a magistrate and the magistrate appoints a place as early a date as is practicable for the hearing.  The person against whom an objection is made may either appear in person or by a person appointed in writing under his hand, or may forward by post to the magistrate a statement signed by him setting forth his answer to the objection. A magistrate however reserves the right to demand the personal attendance of the parties. When an objector fails to appear on the day and at an appointed place, the magistrate is obliged to disallow the objection and may order the objector to pay such costs.

The other situation where one may be denied an opportunity to vote is on cancellation of their registration by principal registration officer. If any principal registration officer has reason to believe that any voter enrolled is not, or is no longer, entitled to registration in respect of the polling station to which that registration relates he shall notify that voter of cancellation stating the grounds on which he proposes the cancellation and demand the voter to make representations why their registration should not be cancelled.

A voter whose registration is proposed to be cancelled may appeal to a magistrate. Notice of any such appeal shall be in a “Form I” and shall be delivered to the principal registration officer who sent the notice of cancellation to the voter within a period of 14 days after delivery of such notice of cancellation. For the purpose of determining an appeal or objection a magistrate may summon any person to appear before him to give evidence on oath or affirmation, and may order the production of any relevant document.

Appeal forms should be obtained from the election officers. You don’t just make an appeal anyhow or it will be invalid. Chaos would follow were an election to be held in abeyance on account an electoral dispute. The magistrate is required by law to decide the disputes as soon as reasonably practicable. It is not surprising, therefore, that the decision of the magistrate is final and may not be challenged in any proceedings whatsoever. I would imagine though that one would have a case for review where the magistrate acts unlawfully, irrationally, unprocedurally or arbitrarily.

We continue with electoral offences in the coming week.