Matojo Cosatta
JF-Expert Member
- Jul 28, 2017
- 234
- 390
ALL NOMINATION FORMS OF ALL CANDIDATES FOR THE OFFICE OF COUNCILLOR IN THE WHOLE COUNTRY ARE NULL AND VOID AB INITIO.
The law mandatorily requires that every Nomination Form in respect of councillor's election must be accompanied by a certificate in the prescribed form issued by Registration Officer in charge of the ward certifying that the nominators of the candidates for the office of councillor are registered as voters in the ward in respect of which the candidate for office of councillor has been nominated as per Section 42 (4) (b) of the Local Authorities (Election) Act, 292.
The provisions of the Section 42 (4) (b) of the Local Authorities (Election) Act, 292 provides as reproduced ad verbatim hereunder;
"42 (4) Every Nomination Form shall be accompanied by -
(a) .......................................................
(b) a certificate in the prescribed form by the Registration Officer in charge of the ward certifying that the nominators are registered as voters in the ward in respect of which the candidate has been nominated;
(c) ......................................................."
Non-compliance with provisions of Section 42 (4) (b) of Cap. 292 is extremely fatal in law. The Nomination Form which is not accompanied by the said Certificate issued by Registration Officer in charge of the ward becomes null and void ab initio under provisions of [Section 42 (5) of the Local Authorities (Election) Act, 292.
The provisions of the Section 42 (5) of the Local Authorities (Election) Act, 292 provides as reproduced ad verbatim hereunder;
"42 (5) Where, in any case, a nomination form is not accompanied by the documents specified in subsection (4) the nomination of the candidate shall be deemed to be void: ........."
Failure on part of a candidate for the post of councillor to append on Nomination Form the said Certificate issued by Registration Officer in charge of the ward is one of the grounds for objection that entitles Returning Officer to disqualify a candidate from contesting councillor's election on his own motion or upon being moved by opponent candidate or Assistant Returning Officer under provisions of Section 44 (1) (d) of the Local Authorities (Election) Act, 292.
There is no candidate for the post of councillor who complied with provisions of Section 42 (4) (b) of the Local Authorities (Elections) Act, Cap. 292 in respect of the 2020 General Election simply because both the Parliament and the National Electoral Commission overlooked to prescribe the relevant Form contemplated by law under provisions of Section 42 (4) (b) of Cap. 292. The law mandatorily requires that the said Certificate to be in "prescribed form" as per Section 42 (4) (b) of Cap. 292. The term "prescribed" in this context and in purview of Section 4 of the Interpretation of Laws Act,Cap. 1 means that the Form must be contained in, or prescribed by or under the written law in which this legal lexicon occurs, be it principal or subsidiary legislation.
So, in absence of Prescribed Form or Prescribed Certificate contained or entrenched in subsidiary legislation enacted by National Electoral Commission or principal legislation enacted by parliament indispensably made it humanly and legally impossible for any candidate to comply with provisions of of Section 42 (4) (b) of Cap. 292.
Also, National Electoral Commission through directives issued by it overlooked to draw the attention of candidates and their political parties on the mandatory requirement to comply with provisions of of Section 42 (4) (b) of Cap. 292.
Now, therefore, all candidates for the post of councillor from all political parties including CCM, Chadema and ACT-Wazalendo were liable to be disqualified by Returning Officers on behalf of National Electoral Commission under provisions of Section 42 (5) and 44 (1) (d) of the Local Authorities (Election) Act, 292 read in tandem with Regulation 28 (3) of Local Authorities (Councillors' Election) Regulations, 2020 also read in tandem with Paragraph (o) of the Form 9 C entrenched in the First Schedule thereto on ground of non-compliance with the provisions of Section 42 (4) (b) of Cap. 292.
So, in law, nomination of all candidates for the posts of councillor made by Assistant Returning Officers on behalf of National Electoral Commission in the whole nation are null and void ab initio.
🔴 TAKE NOTICE OF DRAFTING ERROR.
It is important to take notice that the present Sub-Section 4 of Section 42 of Cap. 292 used to be Sub-Section 3 of Section 42 of Cap. 292 until 2010.
However, in 2010, Section 35 (a) and (b) of Electoral Laws (Miscellaneous Amendments) Act, 2010 ( Act No. 7 of 2010) amended Section 42 of Cap. 292 by re-arranging "Sub-Section (3)" of Section 42 as "Sub-Section (4)" of Section 42 of Cap. 292.
Unfortunately, the Parliament overlooked to amend the cross-reference in Section 44 (1) (d) of Cap. 292 , so Section 44 (1) (d) does make wrong cross-reference to Section 42 (3) instead of Section 42 (4) which is the correct or accurate cross-reference.
Therefore, the correct version of Section 44 (1) (d) of Cap. 292 ought to have appeared as follows;
"44 (1) (d) that the requirement of subsection (4) of Section 42 have not been complied with;"
Therefore, I am inviting Chief Parliamentary Draftsman to invoke his editorial power under provisions of Section 8 (1) (i) of the Law Revision Act, Cap. 4 to rectify the said drafting error as such provisions confers editorial power on Chief Parliamentary Draftsman to correct or rectify erroneous or wrong references and cross-references.
Authored by Matojo M. Cosatta.
The law mandatorily requires that every Nomination Form in respect of councillor's election must be accompanied by a certificate in the prescribed form issued by Registration Officer in charge of the ward certifying that the nominators of the candidates for the office of councillor are registered as voters in the ward in respect of which the candidate for office of councillor has been nominated as per Section 42 (4) (b) of the Local Authorities (Election) Act, 292.
The provisions of the Section 42 (4) (b) of the Local Authorities (Election) Act, 292 provides as reproduced ad verbatim hereunder;
"42 (4) Every Nomination Form shall be accompanied by -
(a) .......................................................
(b) a certificate in the prescribed form by the Registration Officer in charge of the ward certifying that the nominators are registered as voters in the ward in respect of which the candidate has been nominated;
(c) ......................................................."
Non-compliance with provisions of Section 42 (4) (b) of Cap. 292 is extremely fatal in law. The Nomination Form which is not accompanied by the said Certificate issued by Registration Officer in charge of the ward becomes null and void ab initio under provisions of [Section 42 (5) of the Local Authorities (Election) Act, 292.
The provisions of the Section 42 (5) of the Local Authorities (Election) Act, 292 provides as reproduced ad verbatim hereunder;
"42 (5) Where, in any case, a nomination form is not accompanied by the documents specified in subsection (4) the nomination of the candidate shall be deemed to be void: ........."
Failure on part of a candidate for the post of councillor to append on Nomination Form the said Certificate issued by Registration Officer in charge of the ward is one of the grounds for objection that entitles Returning Officer to disqualify a candidate from contesting councillor's election on his own motion or upon being moved by opponent candidate or Assistant Returning Officer under provisions of Section 44 (1) (d) of the Local Authorities (Election) Act, 292.
There is no candidate for the post of councillor who complied with provisions of Section 42 (4) (b) of the Local Authorities (Elections) Act, Cap. 292 in respect of the 2020 General Election simply because both the Parliament and the National Electoral Commission overlooked to prescribe the relevant Form contemplated by law under provisions of Section 42 (4) (b) of Cap. 292. The law mandatorily requires that the said Certificate to be in "prescribed form" as per Section 42 (4) (b) of Cap. 292. The term "prescribed" in this context and in purview of Section 4 of the Interpretation of Laws Act,Cap. 1 means that the Form must be contained in, or prescribed by or under the written law in which this legal lexicon occurs, be it principal or subsidiary legislation.
So, in absence of Prescribed Form or Prescribed Certificate contained or entrenched in subsidiary legislation enacted by National Electoral Commission or principal legislation enacted by parliament indispensably made it humanly and legally impossible for any candidate to comply with provisions of of Section 42 (4) (b) of Cap. 292.
Also, National Electoral Commission through directives issued by it overlooked to draw the attention of candidates and their political parties on the mandatory requirement to comply with provisions of of Section 42 (4) (b) of Cap. 292.
Now, therefore, all candidates for the post of councillor from all political parties including CCM, Chadema and ACT-Wazalendo were liable to be disqualified by Returning Officers on behalf of National Electoral Commission under provisions of Section 42 (5) and 44 (1) (d) of the Local Authorities (Election) Act, 292 read in tandem with Regulation 28 (3) of Local Authorities (Councillors' Election) Regulations, 2020 also read in tandem with Paragraph (o) of the Form 9 C entrenched in the First Schedule thereto on ground of non-compliance with the provisions of Section 42 (4) (b) of Cap. 292.
So, in law, nomination of all candidates for the posts of councillor made by Assistant Returning Officers on behalf of National Electoral Commission in the whole nation are null and void ab initio.
🔴 TAKE NOTICE OF DRAFTING ERROR.
It is important to take notice that the present Sub-Section 4 of Section 42 of Cap. 292 used to be Sub-Section 3 of Section 42 of Cap. 292 until 2010.
However, in 2010, Section 35 (a) and (b) of Electoral Laws (Miscellaneous Amendments) Act, 2010 ( Act No. 7 of 2010) amended Section 42 of Cap. 292 by re-arranging "Sub-Section (3)" of Section 42 as "Sub-Section (4)" of Section 42 of Cap. 292.
Unfortunately, the Parliament overlooked to amend the cross-reference in Section 44 (1) (d) of Cap. 292 , so Section 44 (1) (d) does make wrong cross-reference to Section 42 (3) instead of Section 42 (4) which is the correct or accurate cross-reference.
Therefore, the correct version of Section 44 (1) (d) of Cap. 292 ought to have appeared as follows;
"44 (1) (d) that the requirement of subsection (4) of Section 42 have not been complied with;"
Therefore, I am inviting Chief Parliamentary Draftsman to invoke his editorial power under provisions of Section 8 (1) (i) of the Law Revision Act, Cap. 4 to rectify the said drafting error as such provisions confers editorial power on Chief Parliamentary Draftsman to correct or rectify erroneous or wrong references and cross-references.
Authored by Matojo M. Cosatta.
