107. In the circumstances the Court finds that section 7(1) of the NEA does not
violate Article 13(1) of the Charter by permitting certain office bearers, to
wit, city directors, municipal directors, town directors and district executive
officers to serve as returning officers by virtue of their positions.
108. As for sections 7(2) and 7(3) of the NEA, however, the Court notes that
these provisions grant the Electoral Commission the leeway to appoint
returning officers from among public officers at large. Sections 7(2) and 7(3),
therefore, are different from section 7(1) which ties the qualification of a
potential returning officer to his official position within the public service.
Looked at holistically, the Court holds, therefore, that the width of the
latitude created by sections 7(2) and 7(3) of the NEA cannot be justified.
This latitude may result in the appointment of returning officers that are not
fit for duty since, for example, there is no clear indication as to the level of
placement, within the public service, from whence such appointments can
be made.
109. The Court must also address the Parties’ contention on the effect of taking
an oath of office. As the pleadings reflect, the Parties are in dispute as to
the effect of the oath that persons appointed as returning officers must take
before assuming office. The Applicants submit that the oath does not make
a difference while the Respondent State submits that this is a crucial
procedure in guaranteeing the independence of the appointees.
110. The Court recalls that it has found an oath to be a “… pertinent guarantee
of independence and impartiality.”33 Where a litigant alleges that the taking
of an oath does not guarantee independence and impartiality it is his/her
duty to lead cogent evidence to demonstrate the disregard of the oath by
persons to whom it was administered. In the present case, however, the
Court finds that the Applicants have simply made a general allegation and
have failed to lead cogent and specific evidence to prove the disregard of
the oath by particular returning officers.
33
Suy bi Gohore v. Côte d’Ivoire, supra, § 179.
30