The Electoral Commission says the returning officer for Savo-Russells bye-election has acted against the constitution by allowing former MP, Sir Allan Kemakeza to contest today's bye-election.Commission chairman, and speaker to national parliament, Sir Peter Kenilorea had advised the returning officer that Sir Allan should have been disqualified under section 49-1, of the constitution.
Sir Allan is still under a 12 month suspended sentence imposed on him by the High Court.
However, the returning officer, Enley Sade wrote back to Sir Peter saying, he maintains his decision to allow Sir Allan to contest, under the powers given to him by section 28-3 of the electoral provisions act.
The section says, the returning officer's decision that the candidate, "has been validly nominated shall be final and shall not be questioned in any legal proceedings except on an election petition."
But, Sir Peter says whilst the Commission respects the independence of the returning officer, his line of action goes against the supreme law of the land, and will most likely yield unfair results for all involved in the bye-election.
He says with the support of the attorney-general, the Commission has done its part in bringing the legality of the matter to the attention of the returning officer.
Sir Peter says the Commission is disappointed that the returning officer refused to exercise his discretion reasonably as recommended.
He says from now on, the returning officer is on his own, and the Commission now leaves the matter to other candidates and to the courts, if Sir Allan wins the bye-election.
Meanwhile, a Savo man, George Saemane has raised concern that a simple legal issue that could have been resolved administratively is allowed to drag the nation into costly litigation, if Sir Allan does win the bye-election.
Mr Saemane questions why the Electoral Commission could not terminate the returning officer for insubordination.
He says whilst the constitution gives Sir Allan the right to contest the bye-election, the same constitution sets out guidelines that disqualify him from doing so.
Mr Saemane says the constitution is the supreme law of the country, and, in the event where any law comes into conflict with the constitution, the constitution rules.
He questions if the decision taken by the returning officer was neutral, in allowing Sir Allan to contest the bye-election.
SIBC News understands three of the contesting candidates have made a joint submission on the matter to the returning officer who did nothing about it.
Counting of votes for the Savo-Russells bye-election will begin on Saturday morning.
Fred Bosoboe from the Electoral Commission Office says ballot boxes will be securely stored at the Rove Police Headquarters before counting at the Police club.
He says the ballot boxes will be brought over to Honiara after polling had ended at 5-pm today.
Meanwhile, the bye-election has been described as free and fair.