Asked by chikala
Using OSCOLA referencing style.
QUESTION
Below is an extract of the Local Government Elections Act Chapter 20 of the Laws of the Banana Republic providing the powers of the Local Government Election Commission, qualifications, and disqualifications for election of Councilors respectively.
The Local Government Elections Act Cap 20 of the Laws of Banana Republic
Powers of Commission
3. (1) Subject to the other provisions of this Act, the Commission may, by statutory instrument, make regulations providing for the procedure and manner of conducting every election, and may at any time, issue instructions to any election officer in connection with his functions under this Act and may, require any election officer to furnish to the Commission such information and returns as it may consider necessary.
Qualification of councilors
6. Subject to the provisions of section seventeen, a person shall be qualified for election as a councilor of any council if, and shall not be qualified to be so elected unless-
(a) he is a citizen of Banana;
(b) he has attained the age of twenty-one years; and
(c) he is ordinarily resident in the area of that council.
Disqualification of councilors
17. (1) A person shall not be qualified for election as a councilor if he-
(a) is, under any law in force in Banana, adjudged or declared to be of unsound mind;
(b) is under sentence of death imposed on him by any court in Banana or a sentence of imprisonment has been imposed on him by that court or is substituted by a competent authority for some other sentence imposed on him by that court;
(c) is an undischarged bankrupt, adjudged or declared bankrupt under any law in force in Banana, or has made a composition or arrangement with his creditors and has not paid his debts in full;
(d) is an officer or an employee of a council;
(e) has on the day, for nomination or of election to the council, not paid the rate, charge or tax due to the council or to any other Local Authority and has been notified; or
(f) is an election officer.
(2) No person convicted of corrupt practices or illegal practices by a court of law after an election petition under this Act, shall be qualified to be nominated for election as a councilor for a period of five years from the date of that conviction.
The Local Government Election Commission of the Banana Republic has recently enacted Statutory Instrument No. 3 of 2025 to supplement the aforementioned Act and it additionally provides that all election candidates should have attained an education level of Grade XII or equivalent. Muso would like to contest as a councilor in the upcoming elections for Kaunga Ward but is concerned about the implications of S.I. No. 3 of 2025 as his highest qualification is a Grade IX Certificate. He has approached you for a well-reasoned legal opinion of the legality of the said S.I. and whether it can be challenged and which court the challenge should be addressed. Advise him with the aid of relevant authorities.
QUESTION
Below is an extract of the Local Government Elections Act Chapter 20 of the Laws of the Banana Republic providing the powers of the Local Government Election Commission, qualifications, and disqualifications for election of Councilors respectively.
The Local Government Elections Act Cap 20 of the Laws of Banana Republic
Powers of Commission
3. (1) Subject to the other provisions of this Act, the Commission may, by statutory instrument, make regulations providing for the procedure and manner of conducting every election, and may at any time, issue instructions to any election officer in connection with his functions under this Act and may, require any election officer to furnish to the Commission such information and returns as it may consider necessary.
Qualification of councilors
6. Subject to the provisions of section seventeen, a person shall be qualified for election as a councilor of any council if, and shall not be qualified to be so elected unless-
(a) he is a citizen of Banana;
(b) he has attained the age of twenty-one years; and
(c) he is ordinarily resident in the area of that council.
Disqualification of councilors
17. (1) A person shall not be qualified for election as a councilor if he-
(a) is, under any law in force in Banana, adjudged or declared to be of unsound mind;
(b) is under sentence of death imposed on him by any court in Banana or a sentence of imprisonment has been imposed on him by that court or is substituted by a competent authority for some other sentence imposed on him by that court;
(c) is an undischarged bankrupt, adjudged or declared bankrupt under any law in force in Banana, or has made a composition or arrangement with his creditors and has not paid his debts in full;
(d) is an officer or an employee of a council;
(e) has on the day, for nomination or of election to the council, not paid the rate, charge or tax due to the council or to any other Local Authority and has been notified; or
(f) is an election officer.
(2) No person convicted of corrupt practices or illegal practices by a court of law after an election petition under this Act, shall be qualified to be nominated for election as a councilor for a period of five years from the date of that conviction.
The Local Government Election Commission of the Banana Republic has recently enacted Statutory Instrument No. 3 of 2025 to supplement the aforementioned Act and it additionally provides that all election candidates should have attained an education level of Grade XII or equivalent. Muso would like to contest as a councilor in the upcoming elections for Kaunga Ward but is concerned about the implications of S.I. No. 3 of 2025 as his highest qualification is a Grade IX Certificate. He has approached you for a well-reasoned legal opinion of the legality of the said S.I. and whether it can be challenged and which court the challenge should be addressed. Advise him with the aid of relevant authorities.
Answers
Answered by
GPT-4o mini
**Legal Opinion on Statutory Instrument No. 3 of 2025 Regarding Qualifications for Councilors**
**TO:** Muso
**FROM:** [Your Name]
**DATE:** [Insert date]
**SUBJECT:** Legality of Statutory Instrument No. 3 of 2025
---
**1. Introduction**
You have approached me regarding your eligibility to contest as a councilor in the upcoming elections for Kaunga Ward, particularly in light of the newly enacted Statutory Instrument (S.I.) No. 3 of 2025, which states that all election candidates must possess a minimum education level of Grade XII or its equivalent. Since your highest qualification is a Grade IX Certificate, I will analyze the legality of this S.I. and the potential grounds for challenging it.
**2. Legal Framework**
The Local Government Elections Act Chapter 20 of the Laws of the Banana Republic (hereinafter "the Act") sets out the qualifications and disqualifications for councilors. According to section 6, a person is qualified for election as a councilor if they meet the following criteria:
- (a) Are a citizen of Banana;
- (b) Have attained the age of twenty-one years; and
- (c) Are ordinarily resident in the area of that council.
The Act has no reference to a minimum educational requirement for councilors.
**3. Powers of the Local Government Election Commission**
The Local Government Election Commission, under section 3(1) of the Act, is empowered to enact regulations by statutory instrument regarding the procedure and manner of conducting elections. However, these regulations must operate within the confines and provisions established by the Act itself.
**4. Examination of Statutory Instrument No. 3 of 2025**
S.I. No. 3 of 2025 imposes an additional qualification relating to educational attainment, specifically requiring a Grade XII level or equivalent for all candidates. This requirement does not appear in the original text of the Act, which creates a potential conflict.
**5. Legal Justification for Challenge**
The legality of S.I. No. 3 of 2025 can be challenged on the following grounds:
- **Ultra Vires**: The S.I. may be considered ultra vires (beyond the powers) if it contradicts the specific provisions of the Act. As the Act does not mention educational qualifications, it stands to reason that the Commission's imposition of such a requirement extends beyond its authority. In **R v. Secretary of State for the Home Department, ex parte Fire Brigades Union** [1995] 2 AC 513, the House of Lords held that secondary legislation must be consistent with the empowering statute.
- **Legitimate Expectation**: You also have a legitimate expectation to contest the election based on the qualifications laid out in the Act. Since no educational requirement existed prior to the enactment of S.I. No. 3 of 2025, you can argue that the new requirement disrupts established expectations.
**6. Appropriate Venue for Challenge**
The appropriate court for this challenge would typically be the High Court, which deals with matters of public law and judicial review, particularly regarding the validity of statutory instruments. You may seek a declarative judgment that S.I. No. 3 of 2025 is invalid due to its conflict with the provisions of the Act.
**7. Conclusion and Recommendations**
Given the potential for a successful challenge based on the grounds outlined above, it is recommended that you:
- Gather evidence and documentation supporting your education and residency in the council area.
- Seek legal representation to assist in preparing the application for judicial review to the High Court.
- Prepare your arguments focusing on the ultra vires nature of S.I. No. 3 of 2025 and the disruption of your legitimate expectations.
If you proceed with this challenge promptly, it may afford you the opportunity to contest the elections as originally intended under the provisions of the Act.
---
Should you need any further assistance, please do not hesitate to contact me.
**References**
Local Government Elections Act Chapter 20 of the Laws of the Banana Republic. Statutory Instrument No. 3 of 2025.
**TO:** Muso
**FROM:** [Your Name]
**DATE:** [Insert date]
**SUBJECT:** Legality of Statutory Instrument No. 3 of 2025
---
**1. Introduction**
You have approached me regarding your eligibility to contest as a councilor in the upcoming elections for Kaunga Ward, particularly in light of the newly enacted Statutory Instrument (S.I.) No. 3 of 2025, which states that all election candidates must possess a minimum education level of Grade XII or its equivalent. Since your highest qualification is a Grade IX Certificate, I will analyze the legality of this S.I. and the potential grounds for challenging it.
**2. Legal Framework**
The Local Government Elections Act Chapter 20 of the Laws of the Banana Republic (hereinafter "the Act") sets out the qualifications and disqualifications for councilors. According to section 6, a person is qualified for election as a councilor if they meet the following criteria:
- (a) Are a citizen of Banana;
- (b) Have attained the age of twenty-one years; and
- (c) Are ordinarily resident in the area of that council.
The Act has no reference to a minimum educational requirement for councilors.
**3. Powers of the Local Government Election Commission**
The Local Government Election Commission, under section 3(1) of the Act, is empowered to enact regulations by statutory instrument regarding the procedure and manner of conducting elections. However, these regulations must operate within the confines and provisions established by the Act itself.
**4. Examination of Statutory Instrument No. 3 of 2025**
S.I. No. 3 of 2025 imposes an additional qualification relating to educational attainment, specifically requiring a Grade XII level or equivalent for all candidates. This requirement does not appear in the original text of the Act, which creates a potential conflict.
**5. Legal Justification for Challenge**
The legality of S.I. No. 3 of 2025 can be challenged on the following grounds:
- **Ultra Vires**: The S.I. may be considered ultra vires (beyond the powers) if it contradicts the specific provisions of the Act. As the Act does not mention educational qualifications, it stands to reason that the Commission's imposition of such a requirement extends beyond its authority. In **R v. Secretary of State for the Home Department, ex parte Fire Brigades Union** [1995] 2 AC 513, the House of Lords held that secondary legislation must be consistent with the empowering statute.
- **Legitimate Expectation**: You also have a legitimate expectation to contest the election based on the qualifications laid out in the Act. Since no educational requirement existed prior to the enactment of S.I. No. 3 of 2025, you can argue that the new requirement disrupts established expectations.
**6. Appropriate Venue for Challenge**
The appropriate court for this challenge would typically be the High Court, which deals with matters of public law and judicial review, particularly regarding the validity of statutory instruments. You may seek a declarative judgment that S.I. No. 3 of 2025 is invalid due to its conflict with the provisions of the Act.
**7. Conclusion and Recommendations**
Given the potential for a successful challenge based on the grounds outlined above, it is recommended that you:
- Gather evidence and documentation supporting your education and residency in the council area.
- Seek legal representation to assist in preparing the application for judicial review to the High Court.
- Prepare your arguments focusing on the ultra vires nature of S.I. No. 3 of 2025 and the disruption of your legitimate expectations.
If you proceed with this challenge promptly, it may afford you the opportunity to contest the elections as originally intended under the provisions of the Act.
---
Should you need any further assistance, please do not hesitate to contact me.
**References**
Local Government Elections Act Chapter 20 of the Laws of the Banana Republic. Statutory Instrument No. 3 of 2025.
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