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Attorney-General v Local Government Election Commission (1992/HP/2184)  ZMHC 8; (1990 - 1992) Z.R. 182 (H.C.) (14 October 1992)
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THE ATTORNEY-GENERAL v THE LOCAL GOVERNMENT ELECTION COMMISSION (1990 - 1992) Z.R. 182 (H.C.)
Administrative law - Local Government elections - Local Government Election Commission - Extent of powers to legislate.
Statutes - Construction - Statutory instrument in conflict with mother act - whether ultra vires and of no legal effect.
The Attorney-General sought an order that reg. 10 of the Local Government Election Regulations contained in SI No. 111 of 1992 and providing that all election candidates should have attained an education level of Grade VII or equivalent, was ultra vires the Local Government Elections Act which determined the qualifications for standing. At issue was (1) the interpretation of the extent of the Local Government Election Commission's powers to legislate and (2) the relationship between subsidiary legislation and the enabling Acts of Parliament.
Cases referred to:
Legislation referred to:
For the respondent: E.J. Shamwana, of Shamwana and Co.
By an originating summons under order VI rules 2 and 6 of the High Court Chapter 50 and order 5 rule 4 Supreme Court Practice Rules the applicant seeks for an order that the qualification or disqualification of reg. 10 of the Local Government Election Regulations Statutory Instrument No. 111 of 1992 that purports to state that every candidate in a ward shall state in the nomination paper that the candidate shall have attained educational qualification of not less than Grade 7 or its equivalent is ultra vires the provisions of ss. 16 and 17 of the Local Government Elections Act 21 of 1991 and have no legal effect.
The facts upon which the application is based are as follows:
The applicant, by his affidavit, sets out the following contentions and prayer:
The applicant then prays that, that portion of reg.10(3) of Statutory Instrument No.111 of the Local Government Regulations of 1992 be declared ultra vires the Local Government Elections Act 21 of 1991 and is of no legal effect whatsoever.
The evidence in this case was by affidavit. Mr Hamir, the Attorney-General, swore the affidavit in support of the originating summons. He said he has disagreed with the respondent's construction of s.8 of the Local Government Elections Act 21 of 1991 in that reg.10(3) of Statutory Instrument No.111 of 1992 has widened and extended the qualifications for a person to stand.
The respondent did not file an affidavit in opposition. He however argued and reiterated the contents of his letter to the Attorney-General that the Commission's understanding of s.8 of the Act did not concur with the interpretation given to the s.8 vis-à-vis ss.16 and 17 of the Act by the Attorney-General. He, however, said that he was non-partisan and would abide by whichever way the decision will go.
The Solicitor-General, Mr Chifumu Banda, who represented the Attorney-General, vividly argued that the requirement by reg. 10(3) of Statutory Instrument No.111 of 1992 cannot be supported by the State as it is inconsistent with ss.16 and 17 of the Local Government Elections Act which have stipulated the qualifications and disqualifications of a person who intends to stand as a councillor. The two sections referred to have not stipulated that a person to be nominated as a candidate must have attained an educational qualification of not less than Grade 7 or its equivalent. It is the position of the State that reg.10 of Statutory Instrument No.111 of 1992, which purports to widen and extend the criteria to qualify as a candidate, departs from and significantly varies the qualification stated in ss.16 and 17 of the Local government Election Act 21 of 1991. Section 20(4) of the Interpretation and General Provisions Act Chapter 2 provides that: 'Any provision of a Statutory Instrument which is inconsistent with a provision of an Act, Applied Act or ordinance shall be void to the extent of inconsistency.' He said the enabling Act being the Local Government Act the widened provision in dispute is clearly inconsistent.
True, on the facts of this case; the question at issue is one of the construction of reg.10(3) of the Local Government Election Regulations Statutory Instrument No.111 of 1992 vis-à-vis ss.8, 16 and 17 of the Local Government Elections Act 21 of 1991. For ease of reference I propose to append here below in total the provisions of ss.3(1), 8, 16 and 17 of the Local Government Elections Act and Regulations 10(3) of the Local Government Election Regulations.
Section 3, under which the Commission was set up, reads (leaving out those sub-sections of no application):
Section 8 under which the Commission derives its powers states:
Section 16, which stipulates the qualifications of councillors, reads:
Section 17 reads:
Regulations 10(3) of the Local Government Election Regulation of Statutory Instrument No.111 of 1992 which is the bone of contention reads (leaving out those sub-regulations which are of no application):
There is no doubt the Commission for which the respondent is the chairman was validly appointed by the President on 20th March,1992 by Government Gazette Notice No.166 under s 3(2) of the Local Government Elections Act 21 of 1991. Under this section the Commission was appointed for the purpose of supervising the conduct of elections. The powers of the Commission are stipulated under s.8 of the Local Government
Elections Act 21 of 1991, namely to make regulations, subject to the other provisions of the Act, providing for the procedure and manner of conducting every election, and at any time issue instructions to any election officer in connection with his functions.
Sections 16 and 17 of the Local Government Elections Act 21 of 1991 have spelt out the qualifications and disqualifications of a person intending to stand for elections as hereinbefore quoted. These qualifications or disqualifications have been exhaustive.
At this moment I find it necessary to determine in what province does the Commission's regulation that the candidate 'shall have attained the educational qualification of not less than Grade 7 or its equivalent' fall? There can be no doubt that under s. 3(1) of the Act the Commission was established for the purpose of supervising the conduct of elections and their powers are those spelt out in s. 8(1)-(5) of the Act namely to make regulations providing for the procedure and manner of conducting every election. The answer to the question will now depend on whether what the Commission regulated was a matter of procedure or a matter of substantive law.
In Attorney-General v Silleman  the Barons of the Exchequer were empowered under s.26 of the Queens's Remembrance Act 1859 to make rules as to the process, practice and pleadings of their Court in revenue cases. The Barons made rules granting an appeal to the Exchequer Chamber and the House of Lords. It was heard that the Barons had no such authority for the matter they regulated on was a matter of substance and not mere procedure. I have no reason to differ with their Lordships' construction of the Act for a different construction would, in effect, have given the Barons authority to confer jurisdiction on two superior courts and to impose on them the duty of hearing appeals.
In In Re Grosvenor Hotel, London (No.2)  the Supreme Court of Judicature (Consolidation) Act 1925, gave power to make rules. A rule was made to override the power of the executive to intervene in litigation to veto the production of documents. It was held that the power to make rules conferred by the Act applies only to matters of practice and procedure and in so far as a rule purports to override the power of the executive to intervene in litigation to veto the production of documents, it is ultra vires for this power of the executive is a matter of substantive law and not one of mere procedure.
As I see it the power to make regulations conferred by s.8 of the Act, in the instant case, applies only to matters of procedure and ss.16 and 17 of the Act deal with matters of substantive law. Is the requirement then that 'a candidate shall have attained the educational qualification of not less than Grade 7 or its equivalent' in the province a matter of procedure or substance?
Quite clearly s.8 in its existing form has set out all that is required for the Commission to regulate and it has been exhaustive. Its jurisdiction is to regulate on mere matters of procedure and conduct of the election. The requirement of educational qualification of Grade 7 or its equivalent is a matter of substantive law which falls within the province of ss.16 and 17 of the enabling Act.
It is my view that where a statute confers a power and particularly one
which may be used to deprive the subject of the individual franchise rights the Court will confine those exercising the power to the strict letter and spirit of the statute. In this view I am reinforced by s.2(4) of the Interpretation and General Provisions Act, cap.2 which states that any provision of a Statutory Instrument which is inconsistent with a provision of an Act, Applied Act or ordinance shall be void to the extent of the inconsistency.
The Commission's requirement of education qualification of Grade 7 does not exist anywhere in the enabling Act. This can certainly not be supported by the Court for the power to regulate implies the continued existence of that which is to be regulated.
Unlike art.64(4) of the Republican Constitution Act 1 of 1991 which requires a candidate intending to stand to be 'literate and conversant with the official language of Zambia' ss.16 and 17 have not set up any educational qualification at all. Clearly by that requirement the Commission purports to regulate what did not exist in the provisions of the enabling Act and in so doing widens and extends the criteria for a person to qualify as a candidate. In my view, and with much respect to the members of the Commission, to make such regulation on a matter of substance and not mere procedure is to fly unduly in the face of the Act.
I consider reg.10(3) of Local Government Election Regulations Statutory Instrument No.111 of 1992 inconsistent with the provisions of ss.16 and 17 of the Local Government Elections Act 21 of 1991 in so far as the regulation purports to widen and extend the criteria to qualify as a candidate.
Consequently I have no hesitation to endorse and confirm that the Attorney-General's understanding of s.8 of the Act truly represents the proper construction of the Act and treat with due respect the Commission's interpretation of the Act as fanciful if not engaging on a frolic of their own.
For the reasons aforesaid I would declare that portion of reg.10(3) of the Local Government Election Regulations Statutory Instrument 111 of 1992 that stipulates educational standard as a pre-requisite for qualification ultra vires and is of no legal effect. I would gracefully allow the application.