Banda v Banda (HP/EP 7 of 2006) [2007] ZMHC 5 (29 March 2007)

BANDA Vs NICHOLAS BANDA bEFORETHE HON. MADAM JUSTICE P. M. NYAMBE, SC OPEN COURT AT LUSAKA 2006/HP/EP/OO7 flynote flections campaigns-effects of adverse publicity against a candidate, allegations bordering on character and health status of a candidate. Headnote Election agent-whether an election gent can be appointed by virtue of doctrine of estoppel. Electoral campaigns-the effects of a chief campaigning or a preferred candidate. The petitioner outlined the Kapoche constituency parliamentary elections during the 2006 tripartite elections and lost to the Respondent. The petitioner alleged that the Respondent anchored his campaign on falsely assassinating the character and person of the petitioner. The Respondent was heavily assisted in campaign by a prominent local chief who threatened voters on a community radio station evictions to Mozambique should they vote against his preferred candidate. Held: a person shall be deemed to be an apparent election agent if the person conducts himself or herself as an election agent though not specifically appointed as such. 21 it is inappropriate for a chief who welds power and influence in the community to campaign for or against a candidate for the reason that it advantages the candidates he does not favor. W MATTER OF:' W MATTER OF: The Electoral Act (Act 12 of 2006). An Election Petition. • Mr. C. Banda, SC of Chifumu Banda & Co. C ^ent: Mr. C. L. Mundia, SC of C. L. Mundia and Company, (xespon preferred to: J. Michael Mabenga Vs Sikota Wina & others, SCZ No.15/2003 Akashambatwa Lewanika and Others Vc r-a • , , Mlewa Vs Wingtman [1995-97] ZR171 * legislation referred to: Electoral Act No. 12 of 2006 Electoral (Code of Conduct) Regulations 2006 Other references: 1. Black's Law Dictionary, Seventh Edition. Z Sheshire^nd Fifoot Law of Contract Seventh edition. 3. Hulbur/s Laws of England, 4th Edition judgment ^ec*'on Petition of one Charles Banda (hereinafter, Petitioner) who was a Parliamentary Uecti3 6 UnC^r Un,ted Democratic Allowance (UDA) in the September 2006 Parliamentary 93(i)KaP°c^e Constituency in the Petauke District. The Petitioner is brought under Section (a) (c) of the Electoral Act No. 12 of 2006 [hereafter, the Acl] which reads:- LN° elect'on of" a candidate as a member of the National Assembly shall be questioned except by On Petition presented under the Act. f%npleCt,°n °f 3 candidate as a member of the National Assembly shall be void on any of the which is proved to the satisfaction of the High Court upon the trial of an election is to say:- reason of any corrupt practice or illegal practic other misconduct, the majority of voterc C°mmittee in connection with the election or frofn electing a candidate in that constituency " (dthata^"and “nsent or aPProval of tht wndkhteXC°nnection with the election bV or with lhe^wledS Cand'date or of ^at candidate's election agent or polling other candidate who contested the Kapoche Constituency were: Mr. Nicholas Banda (hereinafter Respondent), for the Movement for Multi-Party Democracy (MMD) Mr. Lawrence Mwale ;orheritage Party (HP), and Ms. Elina Tembo for Patriotic Front (PF). The petitioner seeks the following relief viz: g That it be declared that the said election was void; |ii| That it be determined that the said Nicholas Banda was not duly elected; |iii) That it be ordered that a recount and scrutiny be carried out. In support of his petition, the Petitioner gave oral evidence and called three (3) witnesses. In his evidence, the Petitioner stated that he was the Member of Parliament for Kapoche Constituency from 2001 to 26th July 2006 when Parliament was dissolved to pave way for the General Elections which were held on 28th September 2006. He re-contested the Kapoche Constituency on UDA Ticket but lost tothe Respondent. He decided to petition because he was disadvantaged in the election through Averse publicity. The adverse publicity was aired through a Community Radio Station called PASME ^InPetauke District. The adverse publicity was aired on 26 September 2006. ^Petitioner stated that on 26th September 2006 at about 19:45 hours, Radio PASME aired a gramme featuring Mr. Simeon Banda the MMD Chairman for Petauke District. The host of the was Mathews Banda, an employee of Radio PASME. The radio station covered the entire District, which includes Nyanje and Mwanjabantu Chiefdoms. The programme was in the °ga ^^age, which he understands very well. pr°gramme, he heard Mr. Simeon Banda urge the people of Mwanjabantu Chiefdom specifically Vote f°r hinn for the following reasons': Th« he was a thief who has stolen relief food meant for the people of Mwanjabantu Chiefdom; L That he had stolen Constituency Development Fund (CDF) meant for development of . Chiefdom. . That he was a sick man who had contracted H1V/A1DS And t | ction within a short period. ’ nait voted into office, there was going That he was a foreigner who hailed from Chadiza and > Tyote for the Respondent who hails from Mwaniabant. d 7 d ’ntereSt °f the ^dbring development to the Kapoche Constituency he W°U'd be the °nly °ne wh° «„.«><>« broadcast on Radio PASME on 27,„ Seplember m biwn i9 4s m «" U- «» '“»»■' ™ ®<n In Nsenga presMed by Matbe„ Babda abd tbe »»<•»“ Ws‘m ^. On >l™ radio broadcast, Yorsam Banda presented himself as Chief |«»>“•“',nd spoke as Chlef M“"iabantu. He was reminding the people of Mwanjabangu of the election the following day. He reminded his subjects about the message they were given during the campaign not to vote for him because he was a foreigner from Chadiza, who had stolen CDF and relief food meant for the people of Mwanjabantu, and had HIV/AIDS and that if voted for there would be a by­ election soon after the election because he would die. ° The Petitioner stated that Yorsam Banda warned the people of Mwanjabantu that if he won the elections, he as Chief Mwanjabantu was going to evict and chase them to Mozambique, emphasizing that he was going to give them 48 hours to leave his chiefdom if the Petitioner won. He would evict them according to the polling stations where_the Petitioner would win that he had data through the voters' register and knew every voter, polling station by polling station. ihe Petitioner denied that he has stolen any CDF or relief food meant for Mwanjabantu, and that it was nottrue that he was sick with HIV/AIDS nor that he came from Chadiza. The allegations were false, and tee that uttered them knew them to be false. He contended that the allegations caused him a lot of ^age during the campaign because they were told repeatedly to the people at all public meetings, *hthe Respondent and Yorsam Banda held in Kapoche Constituency. The Respondent never *sa«ociated himself from the allegations. According to the Petitioner, Yorsam Banda was the Chief Natali political rallies held by the Respondent and was presented as the incoming Member of anointed by him as Chief Mwanjabantu. Yorsam Banda was the one who presented the at every public meeting, always spoke first and the Respondent only came to agree with ln Egging for votes. ^Examination, he admitted that the Respondent himself never featured on the broadcasts of »esPo y September 2006. He clarified that in his Petition, he referred to Yorsam an a as ndews agent, though not registered as such with the Election Commission of Zambia (ECZ), kpOn behalf of the Respondent; and that he understood ne sent to do something for another " agent ln main forms> including an Z"6 , r «" .ontive chief is abroad, and it is normal when the Chief k * ... Z0 ■_ k if ond it foiinu/c v n ■ s awaV that there is someone who acts and his be ta Iand it follows Vorsam Banda was speak!nE as Chief Mwenjabantu in the absence of £>*»"<« Chief who is in the United States of America. He stated that he beiiaved when he s3id he would chase those who would vote for him. Still under cross-examination, he stated that Yorsam Banda was present at the meeting on 17 June 2006 atMwanjabantu Kalu Stadium, 9 September 2006 at Zumaile Village in the school grounds, on 22 September 2006 at Nyanje Headquarters and the same day at Chimpundu School. He admitted that he did not attend all the meetings but his agents attended some on his behalf. He had requested for the tapes of the radio broadcasts but was never given. The relationship between the Respondent and Yorsam Banda disadvantaged him and as Chief, Yorsam Banda should not have campaigned in that manner because he had influenced as Chief in Petauke. Under re-examination, he stated that Yorsam Banda conducted himself as a Chief Mwanjabantu during campaign, and that he was deeply involved in the 2006 elections. He was the main campaigner and chief speaker for the Respondent at all meetings. p^was Nicholas Mozowe Daka of Kwenje Village, Chief Mwanjabantu, Petauke District. He is also Madman Kwenje. In his evidence in thief, he recalled the General Elections held on 28 September 2006., Heattended some campaign meetings. He attended first the meeting held on 17 June 2006 at MMabantu. The first person to address the meeting was Yorsam Banda. He told them not to vote for Stiener because he was a foreigner from Chadiza, he had stolen relief food and CDF, which was for the people of Mwanjabantu, he was sick with HIV/AIDS and if voted for there would be a by- > because he was going to die. He was using Nsenga language. Among the people who attended >e«ng on 17 June 2006 were the Respondent, Moses Mteteka, Mwakakalombe and Someone °rnMTN. ra,lies at Zumaile and Kamwala Kanjoma addressed by Yorsam Banda th® ndent- Again, Yorsam Banda started the meeting and the Respondent fimshed. Yorsam Banda f were together at Zumaile and Kanioms H^^He stated that the one who was leading the rePeated the same legations against the ?etit'°ner' <-arnuel Kanyama. campaign for the Respondent was Yorsam Banda Mreal« » IX ™SME “27 September 2006. On the programme. he Respondent for the same reasons he had given during the campaign, and he repeated the allegations against the petitioner. The broadcast was in Nsenga and it was between 19:30 and 20:30 hours. Later thesame evening, he saw Yorsam Banda and the Respondent campaigning using a car with a loud speaker- He stated that he believed the allegations were true because they were told on the radio. Under cross-examination, he stated he believed the Petitioner was a thief because the words were said on the radio and the radio does not tell a lie. He stated that about ten (10) people had gone to Mozambique as a result of the allegations. PW3 was Banison Mwanza of Chief Mwanjabantu, Petauke District. He confirmed attending a meeting at Mwanjabantu organized by Yorsam Banda; and all the people in Mwanjabantu came to attend the meeting. Present at the meeting were Moses Mteteka, Mwakalombe, and a Mr. Mokoena representing min. others were Dora Siliya aspiring MMD candidate for Petauke Central Constituency, Respondent, MMD aspiring candidate for Kapoche Constituency, and Yorsam Banda who introduced the guests. He introduced himself as Chief Mwanjabantu. He first thanked the people that they came in large numbers. He reminded the people that it was the election year and the person they were supposed to vote for was the Respondent and not the Petitioner. He repeated the allegations against the Petitioner. Next, Mr. Mteteka spoke followed by Mr. Mokoena who promised to put an aerial if the Respondent won. He donated footballs and jerseys. The respondent also spoke and concurred with Yorsam Banda saying that in Mwanjabantu, they have never voted for a person from their area, and this was the time to vote for some°nefrom Mwanjabantu. He recalls i- * • 'tailed listening to a radio programme on 27 Septemoerzuuo, an « T7 CAntomber 2006, aired on Radio PASME; around 19:45 »the„ Ba„da was the interviewer and Was featuring Yorsam Banda. Yorsam Banda warned X” “"W especially from Mwanjabantu to .ore for the Respondent and be repeated gatl°ns against the Petitioner. jme night, he heard a™™e„ts on a Publlc Mdtess „re asking people whether the, had heard him on the radio. At the same time, the <t,t knelt down, clapped h.s hands supporting what Yorsam Banda had said, pleading for votes. cross-examination he was asked: Vas he (Yorsam Banda) not urging you to go and vote for the candidates of your choice? ptold a person whom we should vote for. were Q;yes, who did he tell you to vote? A-He said we should vote for Nicholas Banda (Respondent) because he belongs to our Chiefdom. Q: And did you vote for Nicholas Banda? A: Yes, my Lady, Asked whether he believed the allegations, the answer was:- k I believed my Lady because having the freedom to tell the people in Kapoche, he must have evidence according to the accusations. . a «er cross-examination. he stated that on 17 June 2006 at M Banda was the Chief and the, should listen to whatever meeting n June 2oo6, "le Respondent concurred with what Yorsam Banda ^tlw.theMTNbreught.ers^^^ tl'ere is no one who doesn't know that the Petitioner Were the reasons for voting for the Respondent. a tn him in Mwanjabantu Chiefdom, w™lef ^arles Banda." . TennisLunguofNyansimbo Village,Chief Mwaniabantn Do. , nn06 he listened to Radio pafmf j ' etauke District. He recalled that on ? member 2006, ne "sienea to Kadiu PASME around 19:45 hours m on.™ «. featuring Mr. Simeon Banda, the MMD chairman for Petauke District and Mr. James Lung" bX •>«< W ' w« He toned t0 another p,„eramme on 27 mber on tot was said on both those broadcasts oortotod the •<PW1- P"2 ““ ™ ,S '"“"Hthe gainst by the Petitioner. At the time he was ieWthe pe0P,e th3t hS ““th<? ChlSf' After thS rad'° Prtomme, he went around the Constituency ah avehicle, Wh'Ch had.3 PUbl'C Address mounted< telling people to vote for the Respondent and not ^petitioner the following day. Yorsam Banda was driving and he was with the Respondent. According to him, elections were not conducted well in Mwanjabantu because of the allegations but in Nyanje, people voted well because there were no threats and people voted for any of the four candidates. Under cross-examination, he confirmed that he listened to the radio broadcast on 27 September 2006 between 19:45 and 20:30 hours and that he knows Yorsam Banda as Chief Mwanjabantu. Ct Were you comfortable when you heard that Charles Banda lost the election? A: Iwas comfortable because I knew that the people from Mwanjabantu wouldn't he chased to Mozambique according to what he (Yorsam Banda) was saying that they would be chased. Q: According to your knowledge, has there been any people chased to Mozambique since the election? A: Other people ran away just when they got the message from the radio, they were thinking things could happen. Wording to the witness, they were chased due to the threats, which they got, b*vedthe Petitioner was from Chadiza because it was said on the radio, and from the radio. He because there are no lies Onthe radio. are saying there are no lies on the radio; anything said on the radio is gospel truth r^ing to us villagers. । closed his case. P(>titioner Respondent called ten (10) witnesses including himself. Ma^s Banda of House No. 197, Petauke He petafk® Association of Smal1 and Medium Entrepreneurship. He has been working for Radio PASME since 2003. The radio is for information dissemination. As a Community Radio Station, they provided coverage to all candidates who participated in the elections. He recalled recording a programme on 26 September 2006 featuring Mr. Simeon Banda, the MMD District Chairman for Petauke District and Mr. James Lungu, then aspiring Councillor for Nyakawise Ward inMsanzala Constituency. He denied that any reference was made during the broadcast to the allegation by the Petitioner. He also recalled recording a number of programmes on 27 September 2006 among them one featuring Yorsam Banda, which was recorded at 06:00 hours and aired the same day at 11:00 hours. It was not a political programme and Yorsam Banda spoke as a Petauke resident And the Director nf an NGO called Rural Youth Initiative (RYl). The first question he asked was on the future of elections and the second one, on whether the youths should go and cast their vote. According to the witness, Yorsam Banda praised the police and ECZfor conducting the elections in a very good atmosphere and urged the youths to go and vote. ^denied that Yorsam Banda ever made the allegations against the Petitioner; or that the programme ^covered-between 19:45 and 20:30 hours. Jndercross-examination, he stated that lie had trained atZamcom as a Journalist although he admitted d no certificate. He stated that the programmes were recorded for purpose of keeping a record^ grammes of 26 and 27 September 2006 were recorded for 35 minutes and were in the Nsenga He denied that relief food was talked about. When asked if he had a record of the g atWs, he said he did not. WhatdldVou do to them? ^e(e erased, my Lady. C:When did you erase them? erased them on 5th October a Who directed the person who erased them? A; I directed him. He confirmed that Radio PASME covers a wide area. He denied that Yorsam Banda presented himself as Chief Mwanjabantu during the programme. He denied that he deleted the programmes to protect anyone or that he deleted it without the knowledge of people of PASME. He was then shown a note written by Mr. Kennedy Mwansa on 8 October 2006; in which he was requesting the Programmes Officer to allow the bearer of the note to review the tapes. ____* _ _ -——----- — ~ * "■ Q: Now the Programmes Officer that was away was yourself. my Lady. When did you specifically delete the programmes, 27 September 2006 and 26 September 2006? My Lady, they were deleted on Sth October 2006. $ ^you have instructions to delete the programmes? A’Yes my Lady. W the letter (is) written the wav it was because boss was not aware that it had been frorri the computer or that you had removed it? lady> that's what the letter says. ,tones without saying that had he known hewnni^u person to review this programme, had he known h °thered t0 Wfite requestinSt0 Z^ndtso. is your boss . reasonable b0„, ” ■ office-'5 AYesmVLadv- P' putto him that he was not a journalist, he replied he was and that it does not mean when BSPO certificate, he ,s not a journalist. He insisted he was a journalist throng experience and had attended a course for six months. ingoing on, and how they were doing in the election. PASME campaign He denied talking about CDF, stealing of relief food, AIDS or that the Petitioner was a foreigner. Under cross-examination, he denied that any radio programme was aired on 27 September 2006 featuringYorsam Banda. ««again talking about CDF, or relief food. H« admitted that he knew Yorsam Band, but he did W campaign with him. ^3 was James Lung of Kanjola Compound, Petauke D1S nottake part in the Kapoche. • •, He is the Councillor for Nyakawise Ward, Constituency and participated in the elections but d.d ^ituencycampaigns. • ^rMeda Rad,° PASMEon 26 September 2006 around 08:00 hours but was not aware ^^the °adCast, as he was busy campaigning. He was interviewed with DW2. On the programme, what good things MMD had done, including bringing relief food. He did not listen to ^ra^°on September 2006. examination, he stated that DW1 intend.., j u. ^Lut relief food between himself and DW2 but dlnieTtOgether With DW2' He agreed that hey ^ke^ Dut denied saying anything about CDF. s Gibson C°mpound- Lu^- He testified that he was the election agent for thRespondent and not Yorsam Banda. He went to Kapoche Constituency at the end fAugustand from the beginning, Yorsam Banda was not in the campaign team of the Respondent. He ^erhad any occasion to Sten to Radio PASME but he attended some of the Respondent's meetings deluding the one at Zumai e. T e speakers were Kanyama, Makalamu and the Respondent. Yorsam janda was also there. He never heard Yorsam Banda talk about the allegations against the Petitioner. He stated further that he was at the Mwanjabantu meeting of 17 June 2006 and that it was a meeting about HIV/AIDS. Among the speakers was Yorsam Banda, the Director of RYL He is the one who called his friends for this meeting. At the meeting, Yorsam Banda was told the People that as he was coming from the Royal Establishment, he was telling them how bad HIV was. Under cross-examination, he stated that the meeting of 17 June 2006 was atZumailein Mwanjabantu. fepresseu further aboui ine venue bfthe meeting of 17 June 2006, he stated that he was not sure. Asked who was present at the meeting; he replied that it was Mr. Kanyama. When asked which meetings he attended and which ones Respondent attended, he replied, "The one at Zumaile for MTN, even at Mwanjabantu I was there " You had guests travelling from as far as Lusaka in attendance to that meeting? my Lord, the people from MTN my Lady came at the meeting for Honourable Nicholas Banda. I Still under cross-examination, he stated that Yorsam------ * 3 long time. About 45 minutes, one hour, t« hours. H= stated that th. Respondent Banda was the first to speak and he spoke for some nc^the meeting and he was invited by Yorsam Banda. Were aware when Nicholas Banda spoke? s n°t one of the people who talked at the meeting. I ,, know when he was called and introduced’ I A' called and introduced by Mt. Mbewe, the Master of Ceremony. a:Hewas introduced as what? ^■Asan aspiring candidate. Still under cross-examination, he was asked about what replied that he did not see anything being dished out 3 8°° $ d'Shed °Ut by Mr’ Mokoena- He Q:You don't recall Mokoena give footballs and football jerseys to Mr. Yorsam Banda. A: At that meeting, there were no jerseys and balls given. I don't recall any meeting at which jerseys and football attires were given my Lady. He stated that the Zomaiie meeting was an MMD campaign meeting, Yorsam Banda attended and spoke. Ml under cross-examination, he conceded that he did not remember the dates of the Zumaile and Mwanjabantu meetings. for pWaS Makalamb °f Mushala Village, Chief Kalindawalo and the MMD Vice District Chairman d'd not recaH the date but he attended the meeting at Zumaile. The speakers E8ent aadrnan Zumaile, Kanyama Zulu as the campaign manager and Gibson Banda as the election °rSam Banda i°ined the meeting after it had started. He spoke at the meeting. He spoke to the KaPochab°Ut AIDS'The ResP°ndent did not speak, he was just introduced as the aspiring candidate for ’eitha 6 C°ns^uency. He denied that Yorsam Banda made the allegations against the Petitioner; ^the Respondent. ^fernce ”her(>k 'e*amination, he conceded that he spent most o x time in Petauke Central Constituency attended only 'h'» Gratae, campaigning for himself and the Member of fakement there. He :ie meeting, which was an MMD camnsicn against the Petitioner. meeting. He denied that Yorsam Banda made the □pH some meetings including the Zuam e meetine at whirh +u« ^°rnia rnpptinps including tha 7 -i ttendeo w diamentarY candidate and Councillor. he camPa|gn manager for the Respondent. He meeting at which they were introducing the MMD & Under cross-examination, he stated that he was removed as cam^i, actions. P gn manager two weeks before the a And to cut a long story short one of the speakers there was Yorsam Banda? A: No, Mr. Yorsam Banda was not there. Q:So if a witness came to this Court and told the Court that Yorsam Banda came and he actually addressed the meeting, wm ild he be lying? A: He was not on the list of speakers. Nodded further, he admitted Yorsam Banda spoke for a short time. He had no knowledge of the radio Mcastsof 26 and 27 September 2006 on Radio PASME. p 7 Was Jabulani Mokoena, Chief Marketing Officer for MTN. He recalled attending a function in e on 17 June 2006 at the invitation of Chief Mwanjabantu. The invitation was by letter, Exhibit • At the meeting, he gave out some footballs and soccer outfits. He denied that he promised to aerial in Mwanjabantu if they voted for the Respondent. He never heard any allegations made ^he Petitioner by Yorsam Banda. Weston. he Stated SUtWised if he was told that the Chief w * one handset personally to Chief Mwa *»•■•«« tai language, so he did gX w He spoke in Eng was said. and he would be he stated Chie, MMnjabl„tu .^as Yorsam Mwanjabantu Banda of Mwanjabanth ° tor of RY1-ln June 2006» he invited MTN to snnn U Palace' Chief Mwanjabantu, Petauke, and 8 ‘“™and the „Sp„„se „s fa„urahte. Remade the allegations against the Petitioner. and Mr- - 8< did^V" the’rth°USandS'Hedenied 3nappeal to MTN for network and a dish. Pr°mlSe an aerial but he made He was at the meeting at Zumaile and was given five minutes to speak. The Respondent was there. He denied uttering the allegations against the Petitioner or that he was chief campaigner for the Respondent. On 27 September 2006, he was requested to feature on Radio PASME. It was recorded at 06:00 hours and broadcast at 11:00 hours the same day. It was recorded in a mixture of Nyanja and English; and the interviewer was Mathews Banda. He denied uttering the allegations in the petition Hp denied campaigning with the Respondent between 19:45-20:00 hours on 27 September 2006. Under cross-examination, the witness was shown Exhibit "FM1". He conceded that when he read the ktterfirst, he omitted the paragraph relating to the First Lady, and the fact that he signed the letter as ^Mwanjabantu. He stated that he was Chief Mwanjabantu, and not his brother Lenard Banda. He does not recognize his brother as Chief Mwanjabantu although he is the one gazetted as such by the Government. Neither does he recognize his mother as Regent. under cross-examination, he stated that he had invited the First Lady as Guest of Honour but when c dld not respond, Mr. Mteteka was invited Instead. The Petitioner was not invited because he does with politicians, but the Respondent just attended, he was not invited. I Ie clarified that when does not deal with politicians, he meant he did not invite them. He did not know that Mr aspiring candidate for Chisamba. MTN donated about 20 balls and not 100 balls. According main speakers were Mr. Mokoena and Mr. Mteteka; and the Respondent d.d not speak. He reC°rdin® a Programme on Radio PASME on 27 September 2006, but only for about 15 '^uding a break. He denied introducing himself as Chief Mwanjabantu. He was Of Gyanja and English because he was not very good in Nyanja though he went to school m from Grade Ito 7 where the 5 against the Petitioner. alie6atl°n He denied tb.tbe made tbe ^-examination, he reaffirmed that he never said that n • MGOswere distributing relief food and not MPs et'tioner was a thief of relief food, 0faS ^was Mr. Moses Mteteka of House No. 1 Mumbo Road Long Acres, Lusaka parliament for Chisamba and Deputy Minister of Lands as he then was. He is the Member of luhis evidence, he confirmed attending the meeting of 17 June 2006. He was invited by the son of Chief Mwanjabantu and MTN were present. DW8 introduced his delegation. The First Lady had been invited but she did not attend. He denied that DW8 had uttered the allegations against the Petitioner. Under cross-examination, he admitted that he knew the Petitioner as Area Member of Parliament, but he was not present at the meeting. He attended after an invitation from Yorsam Banda, son of Chief Mwanjabantu and Mr. Mwakalombe was part of his delegation. He was aware that Mr. Mwakalombe is a supporter of MMD but he was not aware that he was a Trustee nf MMD. He agreed that Mr. - Mwakalombe is a NEC Member of MMD. He agreed that Hon. Dora Siliya, Hon. Peter Daka and Mr. Mokoena attended the meeting. At the time he had left the Ministry of Community Development and was aspiring candidate for Chisamba, on the MMD ticket. All three adopted candidates for Petauke were present at the meeting. By then, MMD had announced the list of adopted candidates. He said that Yorsam Banda spoke in Nsenga. though all three MMD aspiring candidates for Petauke and MMD NEC members were present, this ’'as not an MMD function. It was just unfortunate that the Area Member of Parliament was not present. that he was related tn the First Family but on that occasion he was not representing the First "*■"« «> net aware about allegations made against the Petitioner, and if they were made, it could In Ns absence. a Par’tarnent for Kapoche Constituency and Deputy M Banda of plot N°' Ha in the elections on the MMD ticket. he had not been invited on 17 June 2006 h Ced by the NGO RYI. He did not speak at this mX^Vh ^T'"8 SP°nS°red by M™' Ration when he heard that MTN and the NGO were havin l° WS i f5’1 . ,te He confirmed those in attendance but 83 meetlng'so he decided to stay and been his agent chiefCampaigner, and he neve, spoke al an, a,his meetings. He did not ton to the radio broadcasts, as he was busy with thp u ■isten with rW8 or knelt begging for voters from any crowd on 27 September 2006. . y n tne campaigns. He never went round campaigning gut the same evening, he met people coming from a meeting who told him that the people had dispersed so he decided to rest and proceeded to his parent's place. He arrived around 21:00 hours and DW8 came when he was resting. He stated that the elections were fair; he won fair and prayed that he should not be disturbed in his work for the people■ who voted him. It would be too expensive to run another election and requested that the Petitioner be dismissed with costs. Under cross-examination, he stated that he has worked with DWS on sports programmes for some time; from about 2005 and that DW8 is his friend. He conceded that DW8 was at the Zumaile meeting and knew the programme of his meetings. , X Respondent's evidence, both Counsel submitted written submissions. Mr. Chifumu Banda, SC, ^nse‘ for the Petitioner submitted that the Court will have to consider the cred.bdity othei witnesses J bV the Petitioner as against those called by the Respondent. He submitted that on the who t e Jeered by the Respondent was unreliable and invited the Court tQ be^.evet^^dene f toner's witnesses and find that the words complained of were uttered He submatedfurthe ' *«ons .ha. Ute B.«,oner Ch.dea Banda is suKedng from " k1 S™'W. . O allege that a candid... in an .!.«<» »> People in that Constituency contravenes 8.82 (2) of th. Act. These orrices and the Court should hold that the elArt,^ c i^1 pr the majority of voters in the Constituency ° NICH0LAS BANDA, be declared null ^^'^ferred on account of these illegal practices PreVented from electin8 a candidate whom ^Pre Mundia, SC, Counsel for the Respondent submitted that it is petition, not on a preponderance of ^bilitiesbutonasan |3 p lg yn a Civil matter alth°ugh that standard is less than that required ifl a criminal case. For t e e ec ion o tie Respondent to be held void, the Petitioner has to prove any of offences in S 83(1) o t e Act to the satisfaction of the Court, and that there was wrong doing of a sCale and type which adversely affected the election, and such proof should be a standards set out in the Mabenga Case. He submitted that all the allegations made by the Petitioner in his petition have not been proved and that the petition is incompetent and must be dismissed as being one without merit with costs to the Respondent. He requested the Court to confirm the Respondent as being the duly elected Member of Parliament for a Kapoche Constituency; that the Court makes further declaration that the election of the Respondent as Member of Parliament for Kapoche Constituency was held freely and fairly. From the evidence on record, the following facts are not disputed:- On 28 September 2006, there were held in Zambia General Elections to elect the Republican President, Members of National Assembly and Councillors. The Petitioner was a candidate under UDA ticket. At the end of the election, the Returning Officer declared the Respondent the winner. During the elections, a Community Radio Station called Radio PASME provided coverage for the Wlgn rallies for all political parties participating in the.elections and that among such activities, two broadcasts aired on 26 and 27 September 2006 and the host was DW1, Mathews Banda. The br°adcast on 26 September 2006 featured Mr. Simeon Banda, DW2, and MMD District Chairman for Mauke, Mr. James Lungu, DW3, the MMD Counsellor in Nyakawise, Msanzala Constituency. Thera*o broadcast on 27 September 2006 feared DW8, Yorsam Mwanjabantu Banda. *ere a ™et,„e .. lew Cand'da,eS f°r “'^Mwakalombe. MMD NEC Member; and Mr. e rot Chisamba, Mr. Moses Mteteka, a Mr. MwaKai . e j^lokoen3, the Chief Sales Marketing Manager for MTN. There were other campaign rallies at i/in?the evidence adduced in this petition thp reviewing u. H n> we tollowing are my comments Firstly pendent’s Counsel stated m his written submission that the Petitioner was trying to fight his petition t0 his pleadings by commg out with outrageous and unfounded aliegations, which were not eaded. Here, Counsel was referring to the allegations attributed to DW8. At the campaign meetings [eldat Zumaile Village and Mwanjabantu. His arguments being that the evidence relating to the meetings atZumaile and Mwanjabantu were not pleaded in the Petition and were therefore, outside the pleading5 arid should have been excluded. While it Is true that this evidence was tendered in evidence byPWl,and alluded to by all his witnesses, Counsel cross-examined these witnesses at length. He led evidence on these allegations with all of his own witnesses. He never raised any objection during the trial so as to enable the other party to reply to his objection and for the Court to deliberate and rule on the objection. Instead, Counsel chose to raise the objection after the case was closed thereby denying the other party the right to reply and the Court the opportunity to deliberate and rule on the objection. He slept on his rights. He cannot now raise that objection. Secondly, Counsel submitted that DW8, was not the Chief Campaigner or agent of the Respondent because he was not appointed or accredited as such by the Elections Commission of Zambia (ECZt The evidence on record shows that DW8 was at the Zumaile meeting, which was an MMD campaign rally organized to introduce the MMD aspiring candidates for Petauke Constituency. He was present at The Mwanjabantu meeting at which all three MMD aspiring candidates for Petauke District were Present. Also present were some MMD big wings from outside Petauke District viz: Mr. Moses Mteteka, MMD aspiring candidate for Chisamba and Mr. Mwakalombe, a Trustee of the MMD and a Member of theNEC. .. The* is further evidence, which was not challenged in cross-examination, that DW8 and Respondent *° ^ded campaign meetings at Kanjoma, Nyimba, and Champundu. It is clear from tne ev 'hat although he may not have been the accredited agent of the Respondent by ECZ, he was P'v involved in the campaign for the Respondent. AND FIF°OT on "THE LAW OF CONTRACT" Seventh Edition, at pages 426-427 defines the atlOn°f agency as follows:- । 4.:nnshiP principal and agent may arise in anw ~ 4^ doctrine of estoppel by the subsequent ratificationT app°intment' by i f without any authorization from him, by imoli^ti ! .>cheha ^ 7 y P cation of law in cases where it is urgently ‘ ,rvthat one man should act on behalf of another andhv^ « wnere it is urgently ^ess^ c0habKation/ • and by presumption of the law in cases of PnnC'Pal °f 3 C°ntraCt m3de °n u u are concerned here with agency by setoppel. Again, Cheshire and Fifoot introduced the subject by a ■notation from LORD CRANWORTH, in the case of Pole V Leask [1863], 33 LJ. Ch. 135 at PP 161-2. M ■Noone can become an agent of another except by the will of that person. His wil! may be manifest in ^th't th d V f J"6 an°ther 3 SitU3ti°n in Wh‘Ch accordin^ t0 the ord'nary usages of mankind, that other is understood to represent and act for the person who has so placed him ...... 7.... Th',S P7°slt'on..... is not at variance with the doctrine that where one has so acted as from to conduct to lead another to believe that he has appointed someone to act as his agent, and knows that that person is about to act on that belief, then unless he interposes, he will in general be stopped from disputing the agency though in fact no agency really existed. At page 428—"In all these cases a person who has no authority whatever to represent another is nevertheless regarded as an apparent agent." And Black's Law Dictionary, Seventh Edition, defines apparent agent as follows:- - . . z z . z A person who reasonably appears to have authority to act for another regardless of whether actual au^ority has been conferred." sP°ndent, by his conduct and utterance, he place im meetings took him to be the agen.t * '^ned to the radio broadcasts and his statements at camp >g m W •da«campaig„erforthe Respondent. DWS was indents apparent agent. ”»«her the Words comp|a Morowe Dak, i„ ,„iWr to “nM Were! nations were true, he replied:- 9 estlon from Respondent-, r *P°ndent^ Counsel whether or not the , MA/pre because they were said on radio" "Pnr... r 4. . s lsten,ng from the radio we thought it was true /^cording to PW3, *n Mwanjabantu Chiefdom, there is no one who doesn't know that Charles is a thief because our Chief told us........these were the reasons for us voting for Nicholas Banda........ " "From that time when the Chief said this, we said this was the truth. This is the reason why we did not vote for Charles Banda" PW4 in answer to a question from Counsel on whether there are Iles on radio, he replied, "........ Me I believe because it was said on radio, saying that he is from Chadiza that is why I believed because there are no lies on the radio " The evidence adduced on behalf of the petitioner is very clear and cogent and remained unshaken even under cross-examination. We contrary, the evidence on behalf of the Respondent was presented as , general denial and fraught with inconsistencies, contradictions and discrepancies. W, Simeon Banda, who was Interviewed with ^. DWB.admBedthat^^^^^ denied ever talked about relief « ’deed about the time the programme o '»»the time because he was tired and busy- M when '“rs, he disputed emphatically. When askea Rllt when it was put to him t a h replied that tM ti„e when « was -ed, he rep * not know when it was aired because '““""e on the radio broadcast was very unreliable ant, urging people to go t""'™s „ere „t pomca! e„e„ when the speakers were talking te because if they did not vote, there can be Recordings of the broadcast, he replied thaUheywereern" he was asked to produce the tapes thL deleted the programmes and whether or noth T er3Sed’Then became evasive about who 8£tua ,h,t jt was Mabvuto Banda, the Recordina t l ad authoritVto erase them. First he told the he h«ed him ,o do d"'"d * '» CO,1C clearly indicates that he had no authority hT ACtlng St3t'°n Manager' Mr‘ KennedV and not Mabvuto Banda o t he the P W^me Officer deleted the ^.nmes were recorded for purpose of keeping , record. The only inference I can draw from this .eUon is that if the p dean produced, they would have been favourable to the Petitioner. As .witted by Petitioner s Counsel, he probably destroyed the tapes to hide the truth from the Court, * action by DW1 contravenes Regulation 14(2) (,), of the Electoral Code of Conduct, which states: (2)Television and radio stations shall:- (a) maintain full records of all radio and television bulletins and recordings of all other programmes related to the election, including party political broadcasts and shall institute a close and meticulous system to ensure balance throughout the campaign upto the close of the poll; The Petitioner also complained that the same words or allegations were repeatedly made against him by DW8, often, if not always in the company of the Respondent at a number of campaign meetings or rallies. First, there was the meeting, whic h was held at Mwanjabantu Kalu Stadium on 17 June 2006. ^ong those who attended the meeting in no doubt that it was MMD meeting orSa answer to a question from Counsel, PW3 reP e py\/2 and PW3. At the en . t0 drum up suppor dnf that meeting both were left Respondent. In Mow you said that you heard that Char e ? R^nda was a tniei ^ence and did you believe that he was a fore jn he must have ev! ' believed my lady because having the freed Cc°rding to the accusation. in his evidence, he stated:- £isewhere 1nMwanjabantu Chiefdom, there is no one who told us" t know that Charles is a thief because our Chief The other meetings that DW8 attended were atZumaile Primarv <irh™i tk- organised to introduce Respondent to the electorate. This was stated by Respondent's own . 'mary School. This was an MMD meeting • 4 tn intrndurp thp witnesses. According to DW4, he was comfortable that the Petitioner lost thnni . . . , rentioner lost the election because then the ,eopleof Mwanjabantu wouldn t be ebased to M.zantblque, and he firmly believed the, were chased * u . . . ,,„h the threats on the radio. He believed what DWS said firstly because he was the Chief and also because he heard it on the radio. There was also the meeting at Kanjoma at which according to PW3, DW8 uttered the same words as what he said at Zumaile. Again the evidence on behalf of the Respondent is full of inconsistencies. To pick a few, DW4 stated that the Respondent spoke at the meeting at Zumaile. But DW5 said Respondent did not speak at the meeting. DW6 even went further and stated that the Respondent was not there at this meeting, though he conceded later in his evidence that he spoke for a short time. This is quite incredible when the other evidence by the Respondent own witness was to the effect that the . meeting was organised to introduce the Respondent to the electorate. DW1 testified that he donated about 100 footballs, some jerseys, some handsets, and gave onp handset tonally to DW8. DW8 recalls only 20 balls being given out. As for DW4, he did not recall any goods given out. He did not recall any meeting at which footballs, jerseys or football attires were given out. i ' '^ch inconsistencies, contradictions and discrepancies, I find the ewd n ,, f of the wtreliable and discredited to be believed. I find that evidence on behalf of the Pet, o e '■ therefore, find that it is more than probable that the words eompla.n.d of were uttered. legation5 against the Petitioner clearly contr ^’rions that the Petitioner has HIV/AIDS cor.tr ^at'° Provisions of the Act. In particular, the contravene Section 83 (1), which reads;. rtion Of another candidate knowing that statement t h Pf °f Pr°m°ting or ProcurinSthe ^|tof an illegal practice." ° be false or not believing it to be true shall be further, the allegations against the Petitioner that he stole CDF funds and relief food meant for the people of Mwanjabantu Chiefdom contravenes Section 83 (2) or the Act which reads:- "Any person who before or during an election, publishes any false statement of fact in relation to the personal character or conduct of a candidate in that election shall be guilt of an illegal practice unless that person can show that that person had reasonable grounds for believing, and did believe, the statement to be true " The evidence before this Court is to the’effect that the Respondent himself never made the said allegations against the Petitioner, but they were made in his presence, with his knowledge and approval. He made no effort to disassociate himself there from the same. According to PW2, "The one I know who was leading this campaign for Mr. Nicholas Banda is Yorsam Banda DW8, my Lady." The body of evidence before this Court has shown how deeply involved DW8; Yorsam Mwanjabantu fenda was involved in the electio,n. It has brought to the fore how strongly people believe in Chief'. A Chief we have seen, wields power and influence in the Community, such that any threat on his part is '^nvery seriously so as to influence or induce the electorate to do his will. In an election, as we have here, it will bring influence to bear upon the voters such that some would refrain from voting for < candidate whom they preferred or go into forced exile for fear of repercussions. view, it is inappropriate for a Chief who wields power Or against a candidate for the reason that it advantages and influence in the community to campaign his preferred candidate and disadvantages andidates he does not favour. 0F englanD< fourth ed1T|0N describes undue influence thus:- t0 constitute undue influence a threat must be "tn °rder amount to undue influence even though the serious and intended to influence the voter. A 0^ person using the threat has no power to carry it in the instant case, as Chief, DW8 contravene Section 82 (1) (c) of Act and Regulation 7 (a) (I) of the Electoral Code of conduct, which reads:- Regulation 7 (1): A person shall not- (i) abuse or attempt to abuse a position authority, for political purpose..... " of power, privilege or influence, including.....traditional For the evidence above, it is quite clear that by reason of the above illegal practice, the majority of voters in the Kapoche Constituency were or may have been prevented from electing the candidate who With the above in view, I make the following Declaration:- THAT the election of ONE NICHOLAS BANDA is null and void. THAT the said NICHOLAS BANDA was not duly elected. Sight of appeal granted. DELIVERED on THE 29TH DAY OF MARCH 2007. Prista M. Nyambe, SC ■UDge