Judgment No. SC 69/15 6
Civil Appeal No. SC 9/14
office of the President. Further, that an order made in terms of s 70(4) of the Electoral Act
would not amount to exercising jurisdiction in terms of s 167 (2)(b) of the Constitution.
I am persuaded by these contentions. The wording of s 167 (2)(b) of the
Constitution is in my view clear and unambiguous in its meaning. The provision is concerned
primarily with disputes relating to election to the office of the President. It provides that any
dispute relating to election to that office is to be determined only by the Constitutional Court.
The dispute in casu does not relate to election to the office of President but to the election of
an aspiring member, the appellant, to the House of Assembly.
Accordingly, the matter before the court a quo did not constitute a dispute as
envisaged in s 167(2)(b) of the Constitution. An interpretation that seeks to import into that
provision a meaning to the effect that only the Constitutional Court has jurisdiction to hear
any election dispute that mentions the President, even where the relief sought has nothing to
do with any matter related to his election to that office, in my view amounts to a
misapprehension of both the meaning and ambit of the provision. I entertain no doubt that
such a liberal interpretation would open the floodgates for undeserving applications to be
brought before the Constitutional Court. This is because, going by such an interpretation, a
losing candidate from any constituency, who might wish to have election boxes and packets
unsealed in order to access material relevant to his or her election results, would be obliged to
file such application before the Constitutional Court. It is to be remembered in this respect
that unlike the Parliamentary and Local Government elections which were ‘localised’ in the
relevant constituencies throughout the country, the President’s ‘constituency’ was the totality
of all those constituencies. Such an outcome being undesirable, it can hardly be said to have
been the intention of the Legislature.