Principles

·  ADMINISTRATIVE LAW— Election Commission Directives— Contravention by Registration Officer within discretionary authority.

·  ADMINISTRATIVE LAW — Rule-making authority of Election Commission —limitations.     -

Applicant’s name was ordered stricken from the Electoral Rool by the District Judge, on, appeal from the Registration Officer’s rejection of respondent’s application for the deletion, on the ground that the list containing applicant’s name was submitted by, a Sheikh’s deputy, though signed by the Sheikh, and thus contravened a Directive from the Election Commision  to Regstraton Officers that such lists may be accepted only “from Sultans, Chiefs or other recognised loch tribal Sheikh or authority,” and that Registration Officers should “Insist that a person who is keen to see his name on the register must come in person
Held: (I) Directives issued by the Election Commission to Registration Officers under Parliamentary Elections Act 1957, a. 20(3) were valid only as norms In aid of Officers’ discretion, and not as rules made in the Commission’s legislative capacity; therefore a decision by a Registration Offices in contravention of a Directive was within his discretionary authority.
(ii) Even if the Directive had the force of a general rule, the acceptance of a list from a Sheikh’s deputy, signed by the Sheikh, was within the clear purport Of the Directive,

Judgment

           Babiker Awadalla, J., February 9,1958: — This is an application by a certain Adam Osman Adam under the Parliamentary Elections Appeal (Procedure) Rules 1957, r. 12 for reviewing a decision of the District Judge designated to deal with appeals in constituency 131, by which the name of applicant was ordered by the said District Judge to be deleted from the electoral roll of the constituency in question. This application was remitted to this court by the Honourable Chief Justice under Parliamentary Elections Appeal (Procedure) Rules 1957, r. 12(e)

The respondent in this case, Ahmed Mahmoud Abdel Rahim of Dar el Kababish, originally applied to the Registration Officer of the constituency in question to have the name of applicant deleted from the said electoral roll, apparently on the ground- that a list of voters containing the name of applicant and others was submitted to the Registration Officer by a person who had no authority  so to submit it in accordance with the rules laid down for the purpose by the Election Commission. His application was rejected by the Registration Officer on the ground that the Sheikh” is a person authorised to deliver such lists. On appeal to the District Judge the latter allowed the appeal and ordered that applicant (respondent in that appeal) be deleted from the electoral roll. In allowing the appeal, the findings of the learned District judge were as follows:

First, that the list in question was not delivered to the Registration Officer by the responsible administrative Sheikh but by his deputy, and that this is contrary to paragraph 11 of Directive No. 3 issued by the Commission;

Secondly, that the said list was prepared by the Sheikh’s deputy;

Thirdly, that paragraph 11 of Directive 3 authorised Registration             Officers to receive lists from “Sheikhs” only, and that to give    this word any wider interpretation would simply open wide avenues for fraud; and

Fourlhly,           that the Election Commission by “excepting” Sultans, Sheikhs and Omdas on the question of handing over of lists simply intended to maintain an attitude of absolute neutrality which would be,defeated if this power is extended to other persons than those mentioned in the Directive in question.

He therefore ordered that applicant’s name be deleted from the Electoral Roll. Hence this application, in support of which the learned counsel for applicant made the following submissions

First:, that the learned District Judge was wrong in law in interpreting paragraph 11 of Directive 3 as meaning not that the lists should come from the Sheikhs, Sultans, Omdas, etc., but that the manual delivery of such lists to the Registration Officer should be made by the Sheikh, Sultan or Omda personally;

Secondly, that even if this restrictive interpretation could be accepted, then the Deputy Sheikh is himself a “Sheikh” within the meaning of the Directive and

Thirdly, that this list was forwarded to the Registration Officer by the Election Commission and the Registration Officer was bound to receive the list on the orders of the Commission giving a specific directive on the point. He goes on to argue from this point that the Commission is authorised to make such a directive in accordance with the Parliamentary Elections Appeal (Procedure) Rules 1957, and

Fourthly, that the learned District Judge was wrong in law in finding that the list was prepared not by the Sheikh but by his debuty  and thereby contrary to Parliamentary Elections Appeal (Procedure) Rules 1957, r. 4(h), allowing the Respondent to make use of a ground not set forth in the memorandum of appeal.      In reply to the above contentions, the learned counsel for the respondent made the following submissions:

First,

 that the directive of the Commission itself may be ultra vires as it is inconsistent with the conception of the fundamental obligation of a voter who wants to use his right as such to appear in person before the Registration Officer;

Secondly,

 and in the alternative, that this directive must be interpreted very restrictively and that the word “Sheikh” must consequently be deemed to mean what it says and nothing else;

Thirdly,

that there was evidence before the learned District Judge that the list in question was prepared and handed over to the Registration Officer, Merowe, by the Deputy Sheikh; and

Fourthly

that the word “from” in the directive in question suggests “instrumentality” in the handing over and that any other interpretation would knock the bottom out of the object for which the restriction was intended; and

Fifthly

 that the allegation that the list in question was submitted through the Election Commission is one which is being now pressed for the first time and is not only unsupported by evidence but is basically untrue, and even if it were true, it would be ultra vires the Commission to make such a directive.

Before dealing with the various arguments raised by both Contesting parties, I would like to mention that two points material to the determination of this appeal are not contested:

(a) that the list in question was signed by the administrative Sheikh; and

(b) that it was handed over to the Registration Officer by the Sheikh’s deputy.

Turning now to the arguments raised, I shall first deal with the very important point, which seems to be commonly made use of as a ground of defence or attack in each of the appeals from this constituency, and which concerns the powers of the Election Commission to issue directives on the question of the preparation of rolls. The following are the relevant sections of the Parliamentary Elections Act 1957:

(a) Section 10 (1) which provides that for every constituency there shall be an electoral roll which shall be prepared in accordance with rules made in this behalf by the Election Commission;

(b) Section 19 (1) which provides that every officer and every other person who is required to perform any duty in connection with any election in accordance with the provisions of this Act or of any rules made thereunder or of any general or special directions issued by the Election Commission shall be bound to perform such duty fairly and in the manner required by such provisions;

(c)  section  20 which provides that the Election Commission may make rules for the purpose of performing its functions under the Sudan Transitional Constitution, and for carrying out the provisions and purposes of this Act and in particular, such rules may provide for, inter alia, the preparations publication and main tenance of electoral rolls.

By virtue of this latter section,’ the Commission may at any time direct that the provisions of any rule shall not apply to any constituency or shall apply in a modified form, and when such direction has been given, the rule concerned shall be deemed to have been cancelled or modified accordingly in so far as an election in that constituency is concerned. The effect of these provisions can be summarised as follows:

(a) that it is only in accordance with rules that the electoral rolls can be prepared, published and maintained; and

(b) that the Election Commission can suspend or modify the operation of a rule, if it thinks fit, by issuing a direction to that effect.

The Election Commission made rules which deal with electoral rolls in Part III: paragraph (I) of the opening rule in this part says that every Registration Officer shall prepare an electoral roll in accordance with the provisions of the Act; these Rules and the directions from time to time shall be issued by the Commission for the Constituency in his charge.

In my view the words “the directions from time to time issued by the Commission for the constituency in his charge” no doubt refer to such directions as the Commissioner is empowered to issue by virtue of Parliamentary Elections Act 1957 s. 20(3). Any wider interpretation of this phrase would mean giving the Commission powers which were not intended to be given ‘under the Act. In other words, and in so far as electoral rolls are concerned, any direction by the Commission of which the effect is not either to suspend or modify a rule in respect of a certain constituency in ultra vires and void. I am unable to find in the Rules issued by the Commission any provision which commands the personal appearance of a voter before the Registration Officer. It is true that item 10 of Directive No. 3 calls on Registration Officers “to insist that a person who is keen to see his name on the register must come in person” and that item 1.1 of the same Directive exempts Southern Constituencies from the operation of this direction, but an item in a Directive is not a “rule” and therefore the Commission must be assumed to have left the specific questions dealt with by Directive No. 3 to the discretion of the Registration Officer. A Registration Officer who does not insist on the personal appearance of a voter in any specific case is not committing a breech of a rule laid down by the Commission in exercise of its legislative capacity. but is simply disregarding a guiding norm suggested by the Commission by virtue of its supervisory authority

Directive No. 3 is full of norms of this type, which were no doubt in tended by the Commission to help Election Officers in the exercise of their discretion  where the Rules are silent and which should not therefore be interpreted in a manner which will substitute the discretion of the Commission for that of the Officers. To sum up, I can say that in so far as electoral rolls are concerned the “directives” were intended by the Commission to illuminate the intellect of the Registration Officers rather than to prohibit’ them from exercising their discretion in accordance with the dictates of their own consciences. Such interpretation is not in my view inconsistent with the provisions which compel Registration Officers to abide by any general or special directives of the Commission; for the Commission has no doubt many other fields of activity than the preparation of electoral rolls.

It goes without saying that an “order” by the Commission to a Registration Officer commanding a course of action in a specific case, e.g., to receive or not to receive a list, is ultra vires the Commission and can be disregarded. Such a command cannot be saved by Parliamentary Elections Act, s. 20(3), as the learned counsel for applicant submits, for under this sub-section the Commission can only deal with a “rule” and not with a situation. It can make a general direction that a specific rule shall not apply to a specific constituency or shall only apply in a modified form. This is not only sound law, but it is also common sense. Electoral rolls are the backbone of the whole electoral system and the Commission can only be fair if its edicts lay down general rules which are duly promulgated and of which all contesting parties can avail themselves. In plain words the Commission can legislate and not adjudicate, because if they do adjudicate then it is impossible to imagine how an objection could be disposed of or an appeal could lie against their decision. In fact, the rules laid down by the Commission itself provide for a hearing by the Registration Officer of all objections and it would be ridiculous to suppose that the Registration Officer was intended by the Commission to sit and determine an objection on a matter on which he had acted in accordance with the orders of the Commission.

The above would be sufficient for me to dispose of the appeal and decide that the acceptance of the list in question by the Registration Officer was right, but I would like to say that even if the words “you may accept lists from Sultans, Chiefs or other recognised local tribal Sheikh or authority” formed part of a binding rule, my decision would not have been different. I cannot for a moment agree with the learned District Judge that the word “from” refers to instrumentality in reception rather than remission because the word always indicates the point of departure and not of destination. A list from the Sheikh may therefore come by the hand of a messenger or even by post.

For the above reasons I am of the opinion that the decision of the learned District Judge was wrong.. This appeal is therefore allowed and the decision of the Registration Officer allowing the entry of applicant’s name in the electoral roll of his constituency is hereby restored.