Chrispin Siingwa v Stanley Kakubo (2016/CCA/A28; Appeal No. 7 of 2017) [2018] ZMCC 269 (20 August 2018)

IN THE CONSTITUTIONAL COURT OF ZAMBIA . AT THE CONSTITUTIONAL REGISRTY HOLDEN AT LUSAKA (Constitutional Jurisdiction) AppeaINo.7of2017 2016/CC/A28 IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER OF: BETWEEN: CHRISPIN SIINGWA AND ARTICLE 73(1) OF !HE CONSTITUTION OF THE REPUBLIC OF ZAMBIA - SECTIONS 97(1 ); 97(2) (a) (i & ii) OF THE ELECTROAL PROCESS ACT, ACT NO. 35 OF 2016 A PETITION FOR THE KAPIRI MPOSHI PAR LI AMENTARY ELECTION HELO ON 11THAUGUS1, 2016 - APPLELLANT ( ', , /, LUSAKA STANELY KAKUBO RESPONDENT Coram: Chibomba, PC, Sitali, Mulenga, Mulembe and Mulonda, JJC On 11 th July, 2017 and 20th August, 2018. For the Appellant: Mr. N. Yalenga of Messrs. Nganga Yalenga & Associates For the Respondent: Mr. Paulman Chungu of Messrs. Ranchhod Chungu Advocates JUDGMENT Mulembe, JC, delivered the Judgment of the Court. Cases referred to: 1. Anderson Kambela Mazoka and others v Levy Patrick Mwanawasa and others (2005) Z. R. 138 2. Jere v Shamayuma and another (1978) Z. R. 47 3. Paul John Firmino Lusaka v John Cheelo (1979) Z. R. 284 J1 4. Mlewa v Wightman (1995-97) Z. R. 17 5. Akashambatwa Mbikusita Lewanika and others v Fredrick Jacob Titus Chiluba (1998) Z. R. 79 6. The People v Muvuma Kambanja Situna (1982) Z. R. 115 7. Attorney General v Marcus Kampumba Achiume (1983) Z. R. 1 8. Attorney General v Kakoma (1975) Z. R. 212 9. Mutale and Phiri v The People (1995-1997) Z. R. 227 10. Mushemi Mushemi v The People (1982) Z. R. 71 11. Misheck Mutelo v Eileen Mbuyana lmbwae SCZ Appeal No. 113/2012 12. Michael Mabenga v Sikota Wina and others (2003) Z. R. 110 13. Reuben Mtolo Phiri v Lameck Mangani, SCZ Appeal No 2 of 2013 14. Au_stin Liato v Sitwala Sitwala, Selected Judgment No. 23 of 2018 . . . 15. Jonathan Kapaipi v Newton Samakayi, CCZAppeal No.13 of 2017 16. Mubika Mubika v Poniso Njeulu, SCZ Appeal No. 114 of 2007 17. Brelsford James Gondwe v Catherine Namugala, Appeal No. 175 of 2012 18. Christopher Kalenga v Annie Munshya and 2 others 2011 /HK/EP/03 19. McGraddie v McGraddie [2013] UKSC 58 20. Changano Kakoma Charles v Kundoti Mulonda Appeal No. 5 of 2017 Legislation referred to: Electoral Process Act No. 35 of 2016 Other works referred to: Phipson on Evidence, 18th edition When we sat to hear and consider this appeal, our sister, the Honourable Justice Chibomba, sat with us. However, at the time of this Judgment Justice Chibomba was outside the jurisdiction. This is, therefore, a judgment of the majority. This is an appeal against the judgment of the High Court dated 25th November, 2016 in which it was adjudged the Respondent, Stanley Kakubo, was duly elected as Member of J2 Parliament for Kapiri Mposhi Constituency. The background to this appeal is that the Appellant, Chrispin Siingwa, and the Respondent were . candidates for. the position of Member of Parliament for Kapiri Mposhi Constituency in the 11 thAugust, 2016 general elections. The Appellant contested the seat on a Patriotic Front (PF) party ticket. The Respondent was a candidate for the United Party for National Development (UPND). There were three other candidates representing the Movement for Multi-party Democracy (MMD), the Forum for Democracy and Development (FDD) and the United People's Party (UPP), respectively. The Respondent emerged victorious with 22,388 votes cast in his favour, while the Appellant polled 20,798 votes. The other three candidates shared the rest of the 2, 397 valid votes cast. The Appellant challenged the result of the election in the High Court alleging that the Respondent was not validly elected as his campaign was characterized by widespread acts of undue influence, bribery, voter intimidation and violence contrary to the Electoral Process Act No.35 of 2016 (hereafter referred to as "the Act") and the attendant Electoral Code of Conduct. It was alleged that the Respondent and other UPND officials engaged in systematic bribery and corruption right up to polling J3 day; that the Respondent and other UPND officials were seen giving out money to voters at some named polling stations and various other places in return for votes in favour of UPND candidates. Further allegations were that the local Red Cross Society Coordinator was a UPND sympathizer and used the auspices of the Red Cross as a cover to hand out money to voters. Also, that another non-governmental organization (NGO) called National Empowerment Fund was giving out money to some women and promised them Kl0,000 loans in the event that the Respondent emerged victorious. It was further alleged that the Respondent, during the campaign period, gave out footballs and bicycles labelled "sponsored by Kakubo, vote UPND and HH" at Katotola Village, Kakwesa ward and Kakwelesa. It was· also alleged that on the eve of the election, the Respondent and a Mr. Kabasa delivered beer to a tavern near to a polling station at Nansenga with instructions that it be given free to people during the night. Further allegations were that the Respondent ferried voters to Chisamba polling station in UPND branded vehicles and dropped them within the 100 metres restricted zone; that at Kampumba and Ilungu polling stations the J4 UPND gave out money and conducted open campaigns 50 metres within the precincts of the polling station. . Further allegations on bribery and corruption were to the effect that between 17th and 31 st July, 2016 the Respondent gave out huge sums of money to women at a campaign rally at Kakwelesa in Kakolo area in Shipangula village. Another allegation w~s that the Respondent and Sameman Hakalumbwe gave out money to voters at Kapiri Mposhi Secondary School polling station in return for voting for UPND. At Imansa polling station, a UPND local government candidate allegedly gave out money in various sums and UPND campaign materials in the form of chitenges. Allegations of undue influence and intimidation were that the campaign conducted by the Respondent and the UPND was characterized by widespread acts of violence and intimidation against persons known to be PF supporters, including the severe beating of the PF Central Province Youth Chairperson and the attack on PF supporters at Likumbi polling station in Mubofwe ward. In Mabe area, a village headwoman was allegedly given money by UPND officials and she became hostile and threatened her subjects with repercussions for not voting for UPND JS candidates. More allegations were that the Respondent and the UPND engaged in character assassination, including that the PF would introduce gay rights via the referendum and that the Appellant was a serial adulterer and womanizer. The Appellant alleged that, as a result of the aforesaid illegalities by the Respondent and his agents, the majority of the voters were prevented from electing the candidate of their choice. At the trial, the Appellant testified as PWl and called 13 other witnesses. The Respondent testified as RW 1 and called two other witnesses. In its judgment, the court below first dealt with the preliminary issue regarding the alibi raised by the Respondent in connection with the events of 10th August, 2016. The trial Judge noted that counsel for the petitioner (now the Appellant), Mr. Y alenga, asserted that the Respondent conveniently raised an alibi which had not been pleaded in his answer to the petition, citing Mazoka v Mwanawasa 1 and Jere v Shamayuma and another2 . The two authorities confirm the well settled principle regarding the role pleadings play in litigation. The court below noted that the alibi J6 was raised in connection to paragraph (c) of the petition, which .was in these terms: "The local Red Cross Society Coordinator, one Mr. Chiyoye was and is a UPND sympathizer and used the auspices of the Red Cross as a cover to hand out money to voters. Another NGO called National Empowerment Fund was giving out money to voters in the sum of K200 and promising K10,000 in the event that the 1st Respondent emerged victorious." The court below stated that since the date of 10th August, 2016 in relation to the allegation in paragraph (c) was only alluded to in the course of the trial by PW6 and PW7, it was not practical that the Respondent could have raised the alibi in his Answer. The trial court thus found the objection misconceived. We wish to point out that issues arising under this allegation are addressed under ground three of this appeal. Turning to the specific allegations relied on by the Appellant to impugn the election of the Respondent, the learned Judge noted that the election petition before her was predicated on section 97(1) and 97(2)(a)(i) and (ii) of the Act. She opined that section 97(2) sets out three clear grounds upon which an election of a candidate to the National Assembly can be nullified. Citing Lusaka v Cheelo3, the trial Judge stated that nullification can be ordered even when it is an agent who is held personally blameworthy and not the candidate. The court below stated that section 97(2) of the Act J7 requires the petitioner to establish to the satisfaction of the court that corrupt practices or illegal practices were committed in the election by an agent of a candidate or with the knowledge or approval of the candidate. Citing Mlewa v Wightman 4 and Lewanika v Chiluba 5 , the court below also noted that even one instance of a corrupt practice or illegal act is sufficient to nullify an election if proven to a standard higher than on a mere balance of probability. Addressing the Appellant's main grievances, that is, corruption, bribery, undue influence and intimidation, the learned trial Judge noted that in view of the direct conflict of evidence between the Appellant and the Respondent and their respective witnesses in regard to the alleged electoral malpractices by the Respondent, the issue of credibility was crucial to the determination of the case; that the witnesses had to be subjected to strict scrutiny of their integrity. Addressing the allegations of corruption and bribery, the trial Judge noted that evidence on this came from a fairly large number of witnesses and involved various wards and polling stations. The court below found that at Kashitu ward, evaluation of evidence of PW2, PW3, PW4 and PWS left the impression that the alleged perpetrators of the corrupt practices were Mr. and Mrs. Lundale. J8 In particular, PW3 testified that he was given K500 in K20 notes on polling day by the Lundales to distribute to voters to entice them to vote for the UPND. According to the court below, the question was whether the Lundales were election or polling agents of the Respondent pursuant to regulation 55 of the Electoral Process (General) Regulations, 2016. The learned trial Judge observed that a close examination of regulation 55 aforesaid required a candidate's election agent to be specifically named in the nomination paper. She found no cogent evidence to show that the Lundales were appointed agents of the Respondent for purposes of the election. That in terms of section 97(2)(a)(ii) of the Act, the Respondent was only answerable for irregularities and malpractices committed by his election agent or with his knowledge or consent. The court below dismissed the allegation as the Appellant had not established that the Respondent was privy to the malpractice at Kashitu. For Mpunde polling station, Kabwale, Munga and Mubofwe wards, the court below dismissed the Appellant's testimony which was based on information from one Tebulo Mumba, to the effect that Bernadette Chayi was seen giving out money to voters in return for their vote. As Tebulo Mumba was not called to testify, J9 .. the trial Judge adjudged the evidence of the Appellant on this aspect as pure hearsay, citing The People v Muvuma Situna6 for authority. In regard to events of l0thAugust, 2016 at Matilyo Compound, where some women allegedly received K200 each from the Respondent after a meeting and were promised Kl0,000 empowerment loans if he won, the court below found that the testimonies of PW6 and PW7 were at variance. The trial Judge found it strange that PW7 was not able to give better particulars of the women she mobilized but recalled the names of the Respondent and Obby Kabasa whom she had met for the first time. She found that PW6 and PW7 were mostly motivated by a desire for monetary gain, lacked integrity and were highly likely to peddle falsehoods. The trial Judge also discounted the testimony of PW12, who allegedly found the women confronting PW7 over the promised Kl0,000 loans, for not being a wholly impartial and reliable witness. The court below found the Respondent's version of events, that he was elsewhere on 10th August, 2016, as more credible and held that the allegation had not been proved beyond a balance of probabilities. On the allegation that Sameman Hakalumbwe, the local UPND District Youth Chairman, was seen distributing money to J1 0 voters and campaigning at Palamedes Basic School polling station, the court below found the testimony of the Appellant to be hearsay as no witness was called to testify to the allegation. In regard to events at Kakwelesa in July, 2016, the court below found the testimony of PW 10 and PW 11 credible and that it was not controverted by the Respondent and that although they indicated that the money they received was meant for campaigns, the promise to give them more money after the election was meant to induce them to vote for the Respondent, contrary to section 81(l)(c) of the Act. However, it was the trial court's position that although the actions of the Respondent came within the purview of section 81(1)(c), it did not provide a basis for nullification of the election as the act was not widespread. The court below also dismissed the allegation of ferrying voters to Chisamba polling station as hearsay evidence. In regard to the allegation that the Respondent and others were seen at Kapiri Mposhi Secondary School polling station giving money to voters, the court below found the testimony of the Appellant and PW13 to be at great variance and held that the Appellant failed to establish that the alleged corrupt practice came within the purview of section 97(2) of the Act. The court below also found that there J11 was no evidence adduced connecting the Respondent to the alleged corrupt acts of Muka Patel at Imansa polling station. On the allegations of undue influence and intimidatio_n, the court below noted that the thrust of the Appellant's testimony was that there were severe acts of violence and intimidation perpetrated by the UPND in Mabe, Kabwale and Mubofwe wards. The learned trial Judge noted that the offence of undue influence is provided for under section 83 of the Act and added that a person is guilty of undue influence if it is proved, to a fairly high degree of convincing clarity, that the alleged acts impeded or prevented a voter from casting their vote freely. After examining the evidence, it was the lower court's position that the witnesses had failed to satisfy the court that some voters in the affected areas were indeed hindered in exercising their franchise within the meaning of section 83( 1) of the Act. On the allegation of character assassination, that the Appellant was an adulterer and womanizer, the court below noted that a close examination of section 84 ( 1) of the Act revealed that the only publications that are proscribed as illegal practices are those statements relating to illness, death and withdrawal from the election of a candidate. She opined that section 84(1) did not make J12 reference to publication of a false statement in relation to sexual immorality and dismissed the allegation. And in regard to the allegation that the Appellant's party would introduce gay rights through the referendum, the court below found no connection between the referendum results and the outcome of the election results; that the allegation was misconceived and based on assumptions. In conclusion, the court below found that the Appellant lost by a margin of 1,590 votes; that the alleged irregularities took place at one meeting in Kakolo area and that section 97(2)(a)(i) and (ii) of the Act were not satisfied. That the Appellant had not established that the majority of voters were prevented from electing a candidate of their choice and upheld the election of the Respondent, Stanely Kakubo, as Member of Parliament for Kapiri Mposhi Constituency. Aggrieved with the decision of the court below, the Appellant filed this appeal outlining seven grounds of appeal as follows: Ground 1 The Honourable Judge in the court below erred in fact and in law when she held that the Respondent was free to raise an unpleaded Defence of alibi because the Appellant did not specify the date of the alleged corrupt acts. Ground 2 The Honourable Judge in the court below erred in law and in fact when she held that even though she had found that there had been electoral J13 malpractices in Kashitu Ward committed by Mr. and Mrs. Lundale, there was no cogent evidence to show that the said persons were the Respondent's agents yet the Respondent had admitted that by virtue of being UPND officials, they were authorised to campaign for him and all UPND candidates. Ground 3 The Honourable Judge in the court below erred in law and in fact when she held that the evidence of PW6 and PW7 was unacceptable as they were motivated by the desire to gain monetary benefit and lacked integrity and as such they would deliberately resort to peddling falsehoods and that the versions of events of the Respondent and his two witnesses was true yet she failed to analyse the contradictions and instances when the Respondent and his witnesses were caught telling lies. Ground 4 The Honourable Judge in the court below erred in law and in fact when having found as a fact that the Respondent had corruptly given money to the voters at Kakwelesa, the same had no significant bearing on the result of the whole Kapiri Mposhi Constituency as it was restricted to a small group of women . Ground 5 That the learned Judge in the court below erred in law and in fact when she held that the Appellant had not proved that the corrupt practice committed by Sameman Hakalumbwe at Kapiri Secondary School Polling Station was committed with the knowledge or consent or approval of the Respondent yet the Respondent had expressly admitted that Sameman Hakalumbwe had been his election agent. Ground 6 The learned Judge in the court below erred in law and in fact wh en she held that proof of undue influence and violence, the Appellant had not shown how the same impeded or prevented voters from the free exercise of the right to vote in the privacy of the voting booth. Ground 7 The learned Judge in the court below erred in law and in fact when she held that: i. The alleged character assassination as a sexually immoral person bore not a violence (sic) of section 84(1) of the Electoral Process Act No. 35 of 2016. ii. The association of the Appellant with gay rights did not repulse voters because if it did all PF candidates would have lost, yet the record clearly shows that PW2, a PF Councilor candidate had won and was just an afterthought. J14 The Appellant filed lengthy submissions in which it was indicated that grounds one, six and seven of the appeal were abandoneq. This Judgment, therefore, only addresses grounds two, three, four and five of the appeal. In arguing ground two, the Appellant submitted that the learned Judge in the court below erred in fact and in law when she held that even though she had found that there had been electoral malpractice in Kashitu Ward by Mr. and Mrs. Lundale, there was no cogent evidence to show that the said persons were the Respondent's agent, yet, the Respondent had admitted that by virtue of being UPND officials, they were authorized to campaign for him and all UPND candidates. That the learned Judge in her judgment analysed the impact of the actions of the Lundales and dismissed the allegation on the ground that there was no cogent evidence that the Respondent was privy to the malpractice at Kashitu. It was submitted that the evidence regarding what went on at Kashitu was adduced through PW2, PW3, PW4 and PWS. It was the Appellant's further submission that the questions that fell to be answered in regard to this aspect were, and we quote: (i) Was there electoral malpractice committed by Mr. and Mrs. Lundale in the Kashitu Ward? J15 (ii) Were Mr. and Mrs. Lundale agents of the Respondent? (iii) Did Mr. and Mrs. Lundale commit the said acts with the knowledge or consent of the Respondent? The Appellant submitted that with regard to the first question the trial Judge found as a fact that the electoral malpractices committed by Mr. and Mrs. Lundale at Kashitu did occur but that in terms of regulation 55(1) of the Electoral Process (General) Regulations, 2016 the Lundales were not the Respondent's election agents and the Respondent denied ever knowing them. The Appellant further submitted that, in cross examination, the Respondent had testified that the position of the UPND was that party structures were mandated to campaign for the party and its candidates and that party members or candidates relied on the party policy directive. It was further submitted that according to his testimony the Respondent also campaigned for the party president, party council chairperson and all the councilors that fell under his constituency. That it would follow, therefore, that the Respondent had campaigned in Kashitu Ward and he would have met the party's officials in that Ward. The Appellant contended that the Respondent's denial that he knew Mr. and Mrs. Lundale was purely for self-serving reasons. Further, that the Respondent had acknowledged that he had heard that the Lundales were UPND J16 I'" officials 1n Kashitu, as Branch secretary and chairperson respectively. The Appellant contended that notwithstanding the wording of regulation 55(1) of the Electoral Process (General) Regulations, the fact that the Lundales were acknowledged by the Respondent as having authority to campaign for him and the party generally made them, in the Appellant's view, the Respondent's agents. The Appellant, citing the case of Attorney General v Marcus Kampumba Achiume 7 where it was held that an appellate court will . not lightly interfere with the findings of fact made by a trial court, argued that, by focusing on the issue of an election or polling agent having to be named in a candidate's nomination paper, the court below was blinded to the facts as admitted by the Respondent on who was authorised to campaign for him. It was submitted that this Court has jurisdiction to interfere with the lower court's findings and find that Mr. and Mrs. Lundale were in fact the Respondent's agents and that the acts of electoral malpractice were committed with the consent and knowledge of the Respondent. On ground three, it was the Appellant's submission that the court below erred in law and in fact when it held that the evidence J17 of PW6 and PW7 was unacceptable as they were motivated by the desire to gain monetary benefit, lacked integrity and would deliberately resort to peddling falsehoods; that the Respondent's version of events was true yet the court below failed to analyse the contradictions and instances when the Respondent and his witnesses were caught telling outright falsehoods. The Appellant submitted that the portion of the Judgment farming the basis of ground three was to be found at page 50 of the record. The Appellant summarised the learned Judge's position as follows, and we quote: (i) Her amazement that PW7 who claimed to have mobilised the other women for the meeting was unable to give further and better particulars of the said women but was able to recall with ease the names of the Respondent and Obby Kabasa whom she was meeting for the first time. (ii) Her amazement at PW7's inability to recall the candidates in the previous parliamentary elections but for the one that the Respondent stood. (iii) Her amazement at the fact that notwithstanding their knowledge that what they were doing was illegal, PW6 and PW7 nonetheless decided to tag along because they were poverty stricken. It was the Appellant's submission that the learned trial Judge chose to believe the Respondent and his witnesses' evidence, in which they stated that they were not in Matilyo compound on 10th August, 2016. It was contended that other than discounting the evidence of PW6 and PW7, the trial Judge did not give any reasons J18 nor was there any evidence on which to base her conclusion that it was highly likely that PW6 and PW7 would deliberately resort to peddling falsehoods. The Appellant asserted that the aforesaid conclusion begged the question as to who the provider of the monetary gain was and contended that the monetary benefit was in fact provided by the Respondent. It was further submitted that the court below went on to state that the evidence of PW6 and PW7 could not be relied on in the absence of independent corroborative evidence. It was the Appellant's contention that the evidence of PW12 was independent evidence of the fact that the women had been arguing about the money that the Respondent had allegedly promised. The Appellant asserted that it is established in jurisprudence that odd occurrences can amount to corroboration and a case in point was the question relating to the production of voters' cards at the alleged meeting of the 10th of August 2016. That the testimony of PW6 in cross-examination was that when she went for the meeting after being inf armed by PW7, she had carried her National Registration Card (NRC) and left her voter's card at home. It was submitted that PW7, in re-examination, informed the court below that PW6 was the only one who did not have her voter's card. J19 It was the Appellant's contention that this evidence was unscripted and spontaneous and it was highly probable that it was based on truth. The Appellant contended that PW12 stated that he was the PF Councillor for Kapiri Central and RW2 and RW3 had stated that they were UPND members but the court below did not label RW2 and RW3 as "loyalists" but as truthful witnesses without giving reasons for that conclusion. According to the Appellant, there were several contradictions and inconsistencies in the testimony of the Respondent and his witnesses. That the first concerned the date of the death of the child of RW3. It was submitted that the loss of a child is a tragic and traumatic event and a parent would not easily forget the date of such a tragic event. That while the Respondent testified that on the 10th of August, 2016 he had gone to the house of RW3 whose child had died "the previous week", RW3 could not recall the exact date of the death of his son except that he died between 7 th and 8 th June, 2016. It was contended that it was not possible for the child to have died a week before lQthAugust 2016 and at the same time to have died between the 7th and 8 th June, 2016. The Appellant argued that the failure to state accurately when the child died, even by the father, fortified J20 the Appellant's position that the said defence was an afterthought and a poor attempt at creating an alibi. The Appellant submitted also that RW2 in his evidence in chief referred to himself as the Campaign Programme Officer for the UPND in Kapiri Mposhi while in cross examination, he referred to himself as the UPND Programme Coordinator for elections. That when asked as to why he had changed his title, he confirmed that he was in fact the Programme Officer and not the Programme Coordinator, who was RW3. It was the Appellant's further submission that when asked whether drawing the campaign program fell under his portfolio, RW2's reply was that the task fell under that of RW3, which RW3 refuted and said it fell under RW2. The Appellant went on to submit that there was also the question of the weight to be attached to the evidence of the Respondent who, in paragraph 7(h) of his Answer and paragraph 8(h) of his Affidavit in Opposition, had denied knowing Bernadette Chabakale Chayi, the UPND councillor candidate for Mpunde Ward. That in cross-examination, the Respondent maintained that there was no such candidate and insisted that he only knew a Bernadette Chabakale, but after being shown the elections register for Kapiri Mposhi, the Respondent admitted that he knew who she J21 • I I was and that he had informed his lawyer that Bernadette Chayi was Bernadette Chabakale. It was also submitted that despite the Respondent having denied holding a rally at Kakwelesa in Shipangula Village, the court below found as a fact that the Respondent had addressed the said rally and given out money and made promises as alleged by PW 10 and PW 11. We were referred to the following portion of the Judgment of the court below at page 52 of the record of appeal: "After a close analysis of the evidence of the two witnesses I have come to the conclusion that they were witnesses of truth as they gave evidence in a straightforward and perfectly frank manner. Their evidence was not controverted by the respondent. Although the witness expressly indicated that the money they received from the respondent was meant to help in the campaigns, I am still of the opinion that the promise to give them more money after the election was meant to induce them to vote for the respondent. This I must say is contrary to the provisions of Section 81 (1 )(c) of the Electoral Process Act." It was the Appellant's submission that the learned trial Judge should have made an adverse finding as to the credibility of the Respondent and his witnesses, more so that the Respondent did not qualify his evidence in chief or that the court below should have justified its conclusion notwithstanding its views in the said portion above, citing Attorney General v Kakoma 8 for authority. The Appellant contended that having found that the Respondent had been untruthful on a material point, the court below ought to have reduced the weight to be attached to the J22 Respondent's evidence, citing Mutale and Phiri v The People. 9 And on the credibility of witnesses, the Appellant called in aid the case of Mushemi Mushemi v The People, 10 where _the Supreme Court said the following: "The credibility of a witness cannot be assessed in isolation from the rest of the witnesses whose evidence is in substantial conflict with that of a witness. The Judgment of the trial Court faced with such conflicting evidence should show on the face of it why a witness who has been seriously contradicted by others is believed in preference to those others." It was the Appellant's prayer that this Court interferes with and reverses the findings of fact made by the court below regarding the truth of the events of 10th August 2016 and hold that the Respondent's alibi was an afterthought and that he had in fact been in Matilyo compound. On ground four, the Appellant submitted that the court below found as a fact that the Respondent had run afoul of section 81(1)(c) of the Act but went on to justify its decision not to n ullify the election by holding that the promise to induce the voters was not widespread and had no significant bearing on the election in the constituency. Citing various authorities, including Mlewa v Wightman,4 Lewanika v Chiluba, 5 and Mutelo v lmbwae, 11 the Appellant submitted that it was clear that the standard was no J23 longer how widespread the corrupt conduct complained of was, but the mere fact that it happened. In respect of ground five, the Appellant attacked the trial court's finding that he had failed to prove that the Respondent had knowledge of, or consented to, or approved of the alleged electoral offence of Sameman Hakalumbwe at Kapiri Mposhi Secondary School polling station. The Appellant submitted that in his understanding, section 97(2)(a) of the Act envisages four instances when a corrupt practice may be committed, that is, by the candidate personally; or by a third party with the knowledge and consent or approval of the candidate; or by a third party with the knowledge and consent or approval of the candidate's election agent or polling agent; or by the candidate's election agent or polling agent even where the candidate was unaware or did not consent. The Appellant asserted that though the court below observed in its judgment that the Appellant's testimony was inadmissible on account of being hearsay, there could not be any variance in his testimony and that of PW13 who was present at the scene. It was, therefore, the Appellant's contention that the learned trial Judge erred in law and fact when she held that the allegation must fail J24 ,' as it was not shown to have been done with the consent or approval of the Respondent. It was contended that from a complete reading of the section 97(2)(a) of the Act, it is clear that a candidate's election can be nullified on the basis that the election agent by himself committed an electoral malpractice even if it was not consented to by the candidate. It was the Appellant's further submission that section 97(3) of the Act shifts the burden of proof from the Appellant to the Respondent to show that the corrupt practices as found were committed by the candidate personally or by the candidate's election agent or with the consent or approval of the candidate's election agent. The Appellant contended that despite the lack of clarity in the Judgment, the learned Judge in the court below did in fact find that Sameman Hakalumbwe had committed the corrupt practice. It was submitted that the acts of the Respondent's agent were not refuted save for the Respondent claiming that Sameman Hakalumbwe could not have committed the acts complained of. In augmenting the heads of argument filed, learned counsel Mr. Yalenga made brief oral submissions on grounds two, three and four. J25 ' I On ground two, Mr. Y alenga urged this Court to set aside the finding of the court below that Mr. and Mrs. Lundale had not been proven to be agents of the Respondent. Mr. Yalenga contended that the record showed that the Respondent had admitted that the policy of the UPND in the last election was that all party members, particularly office bearers, were to campaign for UPND candidates. He argued that they, by that very fact, became agents of UPND candidates in the constituency. When asked to clarify that position, Mr. Yalenga's response was that this Court was empowered to straighten the law and remove ambiguities and lacunas that might result from a strict literal interpretation of the law. Counsel argued that the law in its current status of requiring the naming of agents left open the proliferation of illegal and corrupt acts by political party members on the sole basis that the law would not recognise them as agents of the candidates because they had not been named in the nomination paper. Mr. Y alenga further stated that he was not inviting this Court to ignore the provisions of the law on who an election agent is, but that this Court should take into account the peculiar circumstances whereby the Respondent admitted in J26 evidence that party officials were required to campaign for candidates even though there were no letters to that effect. Asked to state in what circumstances a candidate could be liable for electoral malpractices committed by other persons, Mr. Yalenga stated that the Appellant agreed that there was a specific description of an agent and added that the question of agency was covered by the common law. Learned counsel argued that a person authorised to campaign on behalf of a candidate made that person an agent. But when proded further on whether all members of the UPND were agents of the candidate, Mr. Yalenga submitted that those who fallowed the directive and campaigned on behalf of the Respondent were agents by implication though a strict interpretation of the law excluded them as they were not listed in the nomination papers. Mr. Yalenga pressed the point that the Court must . move away from a strict adherence to the literal interpretation of election agent so that the electoral process 1s clean and free of any illegal or other corrupt acts of persons not named on a nomination paper as agents. It was Mr. Yalenga's position that political parties must not be given a safe haven by the literal interpretation of the law. J27 Augmenting on ground three, learned counsel submitted that this ground hinged on overturning a finding of fact made by the lower court. Mr. Y alenga recalled that the learned Judge in the court below had described the Respondent and his three witnesses as truthful and their version of events of 10th August, 2016 more likely to be believed than that of PW6, PW7 and PW12. Counsel invited the Court to have in mind that RW2 and RW3 stated that they were members of the UPND and members of the campaign . . team, bemoaning the fact that the court below had no problem believing the evidence of RW2 and RW3 but discounted the evidence of PW6, PW7 and PW12. That with particular reference to PW 12, the court below dis believed him because he was loyal to the Appellant and could not be an impartial and independent witness. It was Mr. Yalenga's submission that so were RW2 and RW3 loyal to t he Respondent. Counsel contended that if loyalty to either litigant was the basis for believing or disbelieving the evidence, then, he submitted, the court below ought to have applied a uniform standard to both the Appellant's and Respondent's witnesses and then gone on to state what other reasons existed to prefer the evidence of one witness over the other. J28 Mr. Yalenga proceeded to submit that the evidence of PW12 corroborated the testimony of PW6 and PW7 as regards the allegations that the Respondent had given the women K200 each with a further promise of Kl0,000 should he win. Counsel maintained that the evidence of PW 12 was not that he was present when the Respondent gave out the money or when he made the promise of KI0,000, but that he found a group of women quarrelling about the whereabouts of the promised KI0,000 loans. Mr. Y alenga urged this Court to overturn the finding of the court below as, he submitted, it was one which, on a proper view of the evidence, could not reasonably have been made as the reason given by the court below was that PW6 and PW7 were motivated by monetary gain. On ground four, learned counsel submitted that the question to be determined was whether, having found that there was a corrupt or illegal act by a candidate, the court could not proceed to nullify the election if it was not shown that the majority of the voters were prevented from electing a candidate of their choice. Counsel submitted that the point of an election in a democratic state was to elect persons of integrity into office. Referring to Supreme Court authorities which held that a single act of J29 ' \ corruption or illegality was sufficient to nullify an election, Mr. Yalenga contended that though of mere persuasive value to this Court, the cited authorities were still good law and necessary -in Zambia's fledgling democracy. It was his further contention that the question of the majority though, in his view, more elaborately couched in the current section 97, has always been the same in intent and effect. Learned counsel proceeded to submit that in the repealed law the issue of the majority was still there but that the Supreme Court interpreted the law in such a manner as to remove the mischief of corruption or other illegalities in the conduct of elections. That this was done not by reference to how many people were shown to the court to have been prevented from electing a preferred candidate, but by the mere fact that a candidate engaged in corrupt practices. Mr. Yalenga urged this Court to continue the practice and hold that the proven act of corruption by the Respondent at Kakwelesa was sufficient to nullify his election. In opposing this appeal, learned counsel for the Respondent also filed detailed heads of argument, which he augmented with oral submissions. In regard to ground two, the Respondent submitted that in its Judgment the court below stated that the issue that fell for consideration was whether Mr. and Mrs. Lundale J30 ' I were election or polling agents of the Respondent. The Respondent recalled the trial court's reference to regulation 55 of the Electoral Process (General) Regulations in the following excerpt at page J41 of the Judgment: "A close examination of Regulation 55 reveals that not everyone in one's political party can be considered as a candidate's election agent, since an election agent has to be specifically appointed. Accordingly, I find no cogent evidence to show that the Lundale's were appointed agents of the Respondent for the purpose of the previous election. I am also satisfied that in line with section 97(2) (a) (ii) the Respondent is only answerable for those irregularities and malpractices which are done by his election agent or with his consent." Rebutting the Appellant's argument that the court below made a finding of fact to the effect that there were malpractices committed by the Lundales, the Respondent submitted that no such finding was made. That the learned Judge in the court below merely stated that she got the impression that the alleged perpetrators of the corrupt practices were Mr. and Mrs. Lundale and did not go further to state that she actually found for a fact that the acts of corruption were in fact committed. The Respondent contended that the fact was not found as proven and that on that account alone the allegation must fail. According to the Respondent, the court below went on to deal with the allegation on the basis of the supporting legal provisions and found that any wrong doing, if at all, could not be attributed to the Respondent. J31 The Respondent further contended that the argument, and supposition, by the Appellant, that this Court should stretch the meaning of election agent beyond the provisions of regulation 55 of the Electoral Process (General) Regulations, on account of the fact that the Respondent conceded to the fact that UPND had mandated all the party structures to campaign for all candidates, was untenable. It was submitted that the legal provision could not be circumvented by an extended interpretation by this Court, adding that the instances when the courts are permitted to shed further light on legal provisions are limited to cases of ambiguity. That the Appellant had not shown any lack of clarity in the statutory provision to warrant the invitation to this Court to render any clarifying interpretation on the meaning of "agent". The Respondent concluded on this ground by submitting that the learned Judge in the court below was on firm ground when she determined that Mr. and Mrs. Lundale were not the Respondent's agents and he could not be accountable for their actions. On ground three, the Respondent submitted that the legal position relating to the extent to which an appellate court can interfere with the findings of fact of a tri_al court are well sta ted in Attorney General v Marcus Kampumba Achiume 7 being the J32 principle that a finding of fact can only be interfered with in the event that the trial court's findings were perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or findings which, on a proper view of the evidence, no trial court acting correctly could reasonably make. It was the Respondent's contention that the Appellant's argument, that the court below ought to have believed the testimony of PW6 and PW7, and that the trial court did not give reasons nor was there any evidence on which to base its conclusion that the two witnesses deliberately resorted to telling lies, was not correct. We were referred to the following excerpt of the Judgement of the court below at page 50 of the record of appeal: "It is equally amazing that PW6 and PW7 conceded that notwithstanding the illegal nature of the activities they had engaged in they decided to tag along because they were poverty stricken." According to the Respondent, the finding by the court below was based on evidence that was called by the Appellant. That the Appellant had not shown nor argued that the findings by the court below were perverse nor that they were based on a misapprehension of the facts. Further, that the Appellant had not shown nor argued that the conclusion was not one that could be reasonably made on the correct apprehension of the facts. The Respondent submitted that the finding that PW6 and PW7 could J33 ., not be believed should not be interfered with because the trial court's conclusion was not one that could be challenged on any of the Marcus Achiume 7 grounds. The Respondent further submitted that the Appellant's argument that the testimony of PW12 was corroborative of the testimony of PW6 and PW7 side stepped the trial court's findings that PW12 was not an independent witness and his evidence could, as such, not be relied upon. That it was on the basis of that determination that the court below made the decision not to rely on the evidence of a witness with apparent loyalties to the Appellant, which fact, the Respondent argued, the Appellant had not addressed and the appeal to reverse the findings ought to fail. In this regard, the Respondent found it unnecessary to respond to the Appellant's contention that PW12's testimony was in fact independent, arguing that the Appellant would have to show that the Court's finding was flawed based on one of the Marcus Achiume 7 grounds. The Respondent contended that the trial court's determination that PW12 was not independent was sufficiently backed by the fact that he was in fact loyal to the Appellant. Further, that the fact that RW2 and RW3 were J34 ,• members of the UPND should be distinguished from PW12's status. It was, submitted that the learned trial Judge was clear in stating that the reason for her decision was that she sensed a - - loyalty in respect of PW12 and could not, in that event, give much weight to his testimony. It was the Respondent's view that that reason was sufficient backing for the finding that the court below made. The Respondent's assertion was that the finding of the court below should not be interfered with merely because there was another instance or another possible version. In response to the Appellant's submission that there were contradictions in the Respondent's evidence regarding the dates of the death of RW3's child, the position of RW2 in the UPND, the identity of Bernadette Chayi, the events at Kakwelesa and the allegation of the distribution of money at the rally, and that the court below should have been on guard and treated the Respondent's evidence with caution and circumspection, it was the Respondent's contention that the matter of the date of the death of RW3's child did not raise any inconsistency. That the record did not, as alleged, state that the child died a week earlier than 10th August, 2016 and that the Appellant's assertion that it was not J35 ' •1 possible for RW3's child to have died a week before 10th August, 2016 and at the same time to have died between 7 th and 8 th June, 2016 was not a fact that was elicited in the testimony of RW3 at all. The Respondent admitted that RW2 at one point referred to his position as Campaign Project Officer and at another as a Campaign Programme Coordinator. However, it was his view that the substitution of one title for another was not so material as to invite the conclusion that his testimony could not be relied on or that he was giving false testimony. The difference, it was submitted, was innocent and the court below did not find fault in what was an obvious innocent misstatement of the title. The Respondent also submitted that there was no inconsistency in the identity of Bernadette Chabakale, and that the Respondent was referring to this person as she was identified in the Appellant's petition and affidavit, where she was referred to erroneously as Bernadette Chayi. That when the testimony came through which correctly referred to her as Bernadette Chayi Chabakale, the Respondent then recognised the name and argued that the "confusion", if at all, was caused by the Appellant's fault J36 ' I who wrongly referred to the person by her first and middle name and not by the full names by which she was known. In regard to the incident at Kakwelesa, it was the Respondent's position that the findings made by the court below did not apply to this ground but to ground four. The Respondent agreed with the Appellant's submission on the authorities in Attorney General v Kakoma 8 and Mutale and Phiri v The People9 that a court must make findings on the conflicting statements in evidence and that where a witness lied on an important issue, that lie should affect the weight to be attached to that witness' other testimony. It was the Respondent's contention, however, that the authorities did not apply to the instances that the Appellant was referring to. The Respondent reiterated that, no instance could be discerned, in respect of this ground, that suggested any lies by either RW2, RW3 or the Respondent, and that the authorities could not be interpreted as the Appellant had attempted to make them apply. It was submitted that the citation in Mushemi Mushemi v The People 10 was misplaced. That the wholesome assessment of evidence that the court referred to in that matter referred to the evidence of witnesses on the same matter. It was asserted that it J37 ' ' . was not intended that the assessment of evidence should be a global exercise even on unrelated testimony of witnesses on different matters. The Respondent contended that the relationship on the assessment of the Respondent's evidence in relation to this ground of appeal should be restricted to the testimony of RW2, RW3 and the Respondent. It was the Respondent's view that there was no substantial conflict, in the testimony of these witnesses. The Respondent maintained that there was no basis for overturning the findings of fact made by the court below and that ground three should fail. On ground four, the Respondent began by making reference to the Appellant's argument that a single illegal act pertaining to an election is sufficient ground for that election to be nullified, citing several authorities for support namely, Mlewa v Wightman , 4 Lewanika v Chiluba, 5 Mabenga v Wina and others, 13 Mute lo v lmbwae, 11 and Phiri v Mangani. 14 It was submitted that the cases that the Appellant had relied on to support this ground were based on section 18(3) of the Electoral Act 2006. The Respondent agreed that the position of the law prior to 2016 was that a single act was sufficient reason for avoiding an election but that that position changed after the enactment of the Electoral Process Act. The J38 I . . . Respondent submitted that there is a specific mandatory requirement under section 97(1) and (2)(a) of the Electoral Process Act that a Petitioner must show, in addition to proof of the corrupt practice or illegal act, that the majority of voters in a constituency, district or ward were or may have been prevented from electing the candidate in that constituency whom they preferred. The Respondent asserted that this was a new introduction that was not in the Electoral Act, 2006 and it distinguished the legal position prior to 2016. It was the Respondent's submission that the trial Judge was on firm ground in her decision that the isolated act of inducement was not sufficient reason to avoid the election and that this ground must fail on that basis. In opposing ground five, the Respondent began by discounting the Appellant's assertion that the election of a candidate can be nullified even in the event that the corrupt practice or illegal act was not authorised by the candidate or indeed if the corrupt practice or illegal act was unknown to the candidate. It was submitted that the correct interpretation of section 97(2)(a)(i) and (ii) of the Act is that the corrupt practice or illegal act must be committed by the candidate personally. That J39 the following part of the provision then introduces a responsibility on the candidate if the corrupt practice or illegal act is committed by a third person and the candidate knew about it or consented to the acts. Further, that this responsibility is extended and the candidate would be held accountable, if an agent similarly knew about the acts or consented to them. Thus, the Respondent disagreed with the Appellant's submission that he should be held to account for the actions of Sameman Hakalumbwe even if he did not consent to the acts or know about the same 1 as the provisions of the law did not support the Appellant's argument. The Respondent argued instead that a candidate is only held to account for his own acts or for those that he permits or knew about. Further, that the unknown and unauthorised activities of a truant agent are not a basis for nullifying an election and that the Judge in the court below was within the law when she determined that the allegation should fail because the Appellant had not proved that the alleged corrupt act was committed with the knowledge or consent of the Respondent. The Respondent went on to submit that the court below did not make any findings as to the commission of the corrupt act but that the learned Judge noted that there was a variance in the J40 . - . vers10ns of the incident given by the Appellant and PW13 respectively. That the court below also indicated that the allegation was · couched in broad strokes without specific details and for these reasons, it did not determine that the acts were proven. Recounting the Appellant's argument that the learned Judge should have believed the testimony of PW 13 and disregarded that of the Appellant which she had earlier found to be hearsay, and that if that testimony was disregarded then no inconsistency would have been discerned and PW13's evidence would have stood, it was the Respondent's position that the Appellant had ignored the fact that the Judge based her reasoning on two factors, the fact of the inconsistency and the scanty detail in the evidence. It was contended that even if the argument was sustained that the Appellant's testimony should be ignored, the Appellant had made no comment or advanced any arguments on the second reason. The Respondent argued that on account of the failure to address the two reasons, he took the view that the Appellant had not succeeded in showing any reason for which this Court should then substitute its reasoning for that of the trial Judge and make a J41 • I finding that there was in fact a corrupt act committed. He submitted that ground five should fail. It was the Respondent's prayer that the entire appeal should fail and that the Appellant be ordered to pay the costs of this appeal and of the proceedings in the court below. Augmenting on ground two, Mr. Chungu argued that regulation 55 of the Electoral Process (General) Regulations, 2016 defines who an agent is; that it was clear and unambiguous and that this Court could not step out of the provision and give it a meaning beyond what the law provided. It was counsel 's contention that the Appellant's suggestion that any official of the UPND would be an agent would open the door to numerous possibilities to ascribe fault to candidates and that it was untenable. Mr. Chungu added that, there was no finding of wrong doing by the lower court on this ground. That the lower court only recognised that there were acts ascribed to Mr. and Mrs. Lundale and not that the acts were in fact committed. He contended that the learned Judge in the court below went past that post and stated that since Mr. and Mrs. Lundale were not agents of the Respondent, whether or not the acts were true would have been inconsequential. J42 ·• Responding to the Appellant's suggestion for this Court to take into account the common law definition of agency, Mr. Chungu disagreed and contended that this Court could not refer to the common law in the face of a clear statutory prescription of who an agent was. He submitted that the Court should be restricted to regulation 55 aforesaid. It was his prayer that the ground must fail and that the court below was correct in its determination that an agent must be appointed in a candidate's nomination papers. On ground three, Mr. Chungu submitted that a petitioner must prove his case by calling supporting evidence to prove the allegations. He contended that it did not aid the Appellant for him to argue that the court found shortcomings in his witnesses and should have found similar shortcomings in the Respondent's witnesses on the same account. That even if the Respondent conceded, which he did not do, that the evidence of PW6, PW7, PW12, RW2 and RW3 should fail, the net effect would be that the Appellant had not proved the allegations on the ground. Mr. Chungu argued that the court below did specify that it had difficulty believing PW6 and PW7 as they appeared to be motivated J43 by financial gam. And that PW 12, who was supposed to corroborate their testimony, had loyalty to the Appellant. In reference to the Marcus Achiume 7 case, Mr. Chungu submitted that the Court should exercise circumspection before interfering with findings of fact. He argued that the Appellant must show that the findings by the court below were perverse and made in the absence of relevant evidence. According to counsel, the court below referred to that evidence, the fact that the two witnesses, PW6 and PW7, said that poverty is what led them to get involved and the fact that PW12 had indicated his loyalty. That, according to Mr. Chungu, was the relevant evidence. He argued that on a proper view of the evidence, the determination the court below reached was a proper one. He urged this Court not to interfere with the lower court's findings because the leeway for such interference was a narrow one and, Mr. Chungu submitted, the Appellant had not widened the leeway to the extent that this Court should interfere. The Respondent's prayer was that this ground should fail. And turning to ground four, learned counsel asserted that section 97 of the Act is different in a material way to section 93 of the repealed Electoral Act, 2006. Mr. Chungu submitted that J44 instances itemized in section 93 of the repealed Act were listed disjunctively by use of the word "or" and a petitioner needed only prove one _of the items listed. He argued that section 97 of the Act is crafted conjunctively, with the items separated by the word "and", meaning that a petitioner must prove everything that is in section 97. It was learned counsel's position that the distinction set the two provisions apart and that this Court should not rely on pre-June 2016 decisions as they referred to a completely different provision. It was his further contention that for current purposes, this Court must find that there was an illegal act or a prohibited act and that it had the effect of affecting the poll. Counsel argued that it was the Respondent's position that the learned Judge in the court below was on firm ground when she determined that even though she found an illegal act, it was not sufficient to nullify the election. It was the Respondent's prayer that ground four should fail. In reply and in reference to Mr. Chungu's argument on ground four that there was a material change in the current section 97 from section 93 of the Electoral Act of 2006, Mr. Yalenga submitted that there was no change on the question of the effect on the majority of voters. He contended that this Court must look J45 at the integrity of an election and those that come to power via the ballot box. Mr. Yalenga argued that persons who admit to corrupt activities as the Respondent did should not be allowed to stand on the podium as winners simply because there was no evidence of how the majority were prevented from electing a candidate of their choice. We have given due consideration to the Judgment of the court below, the grounds of appeal, the evidence on record and the oral and written submissions in support of, and in opposition to, this appeal. From the outset, we note that this appeal challenges the lower court's findings on aspects of both law and fact. Noteworthy is the fact that the court below noted that the petition was predicated on section 97(1) and (2) of the Electoral Process Act and found that the Appellant failed to satisfy the threshold for the nullification of an election as required by section 97(2)(a). In this regard, and to put things in context, we find it imperative to ~reiterate what we have stated in numerous cases regarding the position of the current law on the nullification of elections. Section 97(2)(a) is in these terms: "97. (2). An election of a candidate as a Member of Parliament, mayor, council chairperson or councillor shall be void if, on the trial of an election petition, it is proved to the satisfaction of the High Court or tribunal as the case may be, that- J46 (a) a corrupt practice, illegal practice or other misconduct has been committed in connection with the election- (i) by a candidate; or (ii) with the knowledge and consent or approval of a candidate or of that of a candidate's agent or polling agent; and the majority of the voters in a constituency, district or ward were or may have been prevented from electing the candidate in that constituency, district or ward whom they preferred; " Section 97(2)(a) is in clear terms and it provides for clear elements which the petitioner must prove in order to successfully have an election, in this instance that of a Member of Parliament, nullified. The first requirement is that the petitioner must prove, to the satisfaction of the court, that the candidate whose election is being challenged personally committed a corrupt practice or illegal practice or other misconduct in connection with the election or that such corrupt or illegal practice or misconduct was committed with the knowledge, consent or approval of that candidate or his or her election or polling agent. Then, there is the further requirement that where it is proved that a corrupt or illegal practice or other misconduct was committed by the candidate or with the candidate's knowledge, consent or approval or that of his or her election or polling agent, the person challenging the election must further prove that as a result of the electoral malpractice or misconduct, the majority of J47 the voters in the constituency, district or ward were or may have been prevented from electing their preferred candidate. Recently in Austin Liato v Sitwala Sitwala, 14 we were clear that it is not sufficient for a petitioner to prove only that an illegal or corrupt practice or other misconduct was committed. The petitioner must adduce evidence that the electoral malpractice or misconduct was so widespread as to have prevented the majority of the electorate from electing the candidate of their choice. In doing so, we were not only affirming a mandatory requirement of the law but restating our approval of Zambian jurisprudence on this aspect of the electoral laws. In Austin Liato 14 aforesaid and in Jonathan Kapaipi v Newton Samakayi, 15 we cited with approval the case of Mubika Mubika v Poniso Njeulu, 16 in which the Supreme Court said: is complained of, "The provision for declaring an election of a Member of Parliament void is only where, whatever activity it is proved satisfactorily that as a result of that wrongful conduct, the majority of voters in a constituency were, or might have been prevented from electing a candidate of their choice, it is clear that when facts alleging misconduct are proved and fall into the prohibited category of conduct, it must be shown that the prohibited conduct was widespread in the constituency to the level where registered voters in greater numbers were influenced so as to change their selection of a candidate for that particular election in that constituency; only then can it be said that a greater number of registered voters were prevented or might have been prevented from electing their preferred candidate." The threshold in section 97(2)(a) of the Act is clear and it must be satisfied on the basis of credible and cogent evidence. The J48 petitioner must prove, at a fairly high degree of convincing clarity, all the allegations and that the majority of the voters were influenced in their choice of preferred candidate. We have in . recent decisions cited with approval the case of Lewanika v Chiluba 5 wherein it was stated: "As part of the preliminary remarks which we make in this matter, we wish to assert that it cannot be seriously disputed that parliamentary election petitions have generally long required to be proved to a It follows, standard higher than on a mere balance of probability. therefore, that in this case where the petition has been brought under Constitutional provisions and would impact upon the governance of the nation ... , no less a standard of proof is required. It follows also that the issues raised are required to be established to a fairly high degree of convincing clarity." We have also affirmed in a number of our decisions the well settled principle that the burden of proof lies on the person making the allegations. In Brelsford James Gondwe v Catherine Namugala 17 the Supreme Court stressed that the burden of establishing the grounds lies on the person making the allegation. The learned authors of Phipson on Evidence, 18th edition , in paragraph 6-06 at page 162 state that the burden of proof lies upon the party who asserts the affirmative of the issue. We now proceed to determine this appeal based on the principles aforementioned and the provisions of the law. In ground two, the thrust of the Appellant's argument is that the court below erred when it did not find that Mr. and Mrs. J49 Lundale were election agents of the Respondent and, thus, making the Respondent liable for their alleged electoral malpractices in Kashitu ward. J'he Lundales allegedly gave out money to voters in exchange for votes in favour of the UPND. In particular, PW3, Thomas Katandala, testified that he was approached by Mr. and Mrs. Lundale and given K 100 and asked to vote for UPND candidates and that he was given K500 in K20 notes to distribute to voters in return for payment of K500. Growfold Katandala, PW4, testified that after polling day, he found his elder brother, PW3, arguing with Mr. Lundale at Kennedy bar to be paid the balance of K 440 by Mr. Lundale who had paid him K60 only from the promised K500. PW5, Brian Masapi, also testified that he witnessed the argument between PW3 and Mr. Lundale. Central to the Appellant's argument was that the UPND's policy in the last election was that the party structures were directed to campaign for the party and its candidates. The Appellant contended that the Respondent had acknowledged that he had heard that the Lundales were UPND officials in Kashitu and that, notwithstanding the provision in regulation 55(1) of the Electoral Process (General) Regulations, the fact that the Lundales campaigned for the UPND generally made them the Respondent's J50 agents. Learned counsel for the Appellant, Mr. Y alenga, though conceding that the law provides a specific description of an agent in the context of elections, urged this Court to remove what he called "ambiguities and lacunas" that might result from a strict literal interpretation of the law. Mr. Yalenga went as far as proposing that this Court should consider the common law definition of an agent. On the other hand, the Respondent submitted that this Court cannot circumvent the law by an extended interpretation of the term agent. Learned counsel Mr. Chungu argued that the court below rightly relied on the meaning of agent as provided in regulation 55(1) of the Electoral Process (General) Regulations. He disagreed with the Appellant's assertion that the meaning of agent should be stretched and pointed out that the Appellant had not shown any lack of clarity or any ambiguity in the law to warrant giving the word agent a meaning beyond what the law provides. It was Mr. Chungu's contention that the Appellant's suggestion would open the door to numerous possibilities to ascribe fault to candidates. We have considered the submissions of the parties on this ground. From our perspective, it is clear that the key question J51 that falls for our consideration is whether, in the peculiar circumstances of this case, Mr. and Mrs. Lundale could, within the dictates of the law, be held to be election agents of the Respondent in the 11 th August, 2016 election for Member of Parliament for Kapiri Mposhi constituency. Before we proceed to consider the main question, we find it imperative to recall the findings of the court below on this aspect. The record shows that the learned Judge in the court below was of the view that an evaluation of the evidence of PW2, PW3, PW4 and PW5 left the impression that the alleged perpetrators of corrupt practices in Kashitu were Mr. and Mrs. Lundale. The question, however, was whether the Lundales were election agents of the Respondent within the meaning of regulation 55(1) of the Electoral Process (General) Regulations. Regulation 55(1) reads as follows: "A candidate shall name an election agent in the nomination paper and, subject to the other provisions of this regulation, the person named shall be the election agent of the candidate for the purpose of that election." Regulation 55(1) is succinct. An election agent must be specifically named in the candidate's nomination paper. The record shows that the learned Judge in the court below found no cogent evidence J52 to show that Mr. and Mrs. Lundale were appointed agents of the Respondent for the purposes of the previous election. We have carefully perused the record of appeal on this aspect. We have found nothing upon which we can fault the lower court's finding. There is no evidence on the record that the Respondent appointed the Lundales as his election agents. Learned counsel Mr. Yalenga pressed the argument that the fact that the UNPD policy was for all members and party officials to campaign for UPND candidates made the Lundales agents of the Respondent. That those who followed the party directive and campaigned on behalf of the Respondent were agents by implication though a strict interpretation of the law excluded them as they were not listed on the nomination papers. We find the Appellant's position on this point rather odd and it is simply not tenable. We do not agree as the law is very clear. We further wish to state that the Electoral Process (General) Regulations, 2016 are promulgated pursuant to the Electoral Process Act. Section 2 defines "election agent" as: " .. . a person appointed as an agent of a candidate for the purpose of an election and who is specified in the candidate's nomination paper;" J53 Regulation 55( 1) is in line with the definition in section 2 above. The Appellant suggests that there are "ambiguities and lacunas" requiring our attention to straighten out. We disagree. In that regard, we agree with the Respondent that the Appellant has shown no basis upon which the term election agent requires clarification. We also agree with Mr. Chungu that not only is it untenable for us to stretch the meaning of agent beyond what the law clearly provides, but for us to do so would also entail ascribing fault to candidates for electoral malpractices committed by persons who are not appointed by the candidate as election agents. The fact that the Legislature was specific on the definition of election agent was meant, in our considered view, to avoid endless permutations of who an agent is in particular circumstances. We are also reminded of the case of Lewanika and others v Chiluba5 wherein the Supreme Court said: "We are also mindful of the provisos in the Electoral Act so that a candidate is only answerable for those things which he has done or which are done by his election agent or with his consent. In this regard, we note that not everyone in one's political party is one's election agent since, under regulation 67 (now regulation 50)) of the Electoral (General) Regulations, an election agent has to be specifically so appointed." Regulation 55( 1) supra requires that an election agent be specifically appointed and named in the candidate's nomination paper. As we find no ambiguity in that provision, there is no room J54 1. for the Court to clarify what it means or entails. We further agree with the court below that in terms of section 97(2)(a)(ii) of the Act, the Respondent is only answerable for electoral irregularities and malpractices which are committed by his election agent or done by another person with his knowledge and consent or approval. In this case it was not sufficiently shown that the corrupt practices by Mr. and Mrs. Lundale were committed with the knowledge and consent or approval of the Respondent. Ground two is devoid of merit and we dismiss it accordingly. Under ground three, the Appellant contends that the court below erred in law and in fact when it discounted the testimony of PW6 and PW7 on the basis that the two witnesses were motivated by financial gain. That the court below chose instead to believe the Respondent's witnesses despite contradictions in their testimony. PW6, Justina Bwalya Nanda, testified that PW7, Edina Mutale, informed her that some people wanted to empower women and had asked her to mobilise some women for a meeting at PW7's house on 10th August, 2016 at 14:00 hours. It was PW6's evidence that she attended the meeting addressed by a Mr. Chiyoye, who J55 was later joined by the Respondent and Mr. Kabasa. PW6 stated that the Respondent and Mr. Kabasa asked the women to vote for them and the UPND and that, if they won, the women would get Kl0,000 empowerment loans. PW6 admitted that even after the men proposed bribes and she knew it was illegal, she stayed on because of being poverty stricken. That after the meeting, the women were each given K200 by the Respondent. On 15th August, 2016, PW7 was confronted about the promised empowerment loans of Kl0,000, an incident which she said was witnessed by PW12, Simon Musonda. PW7's testimony was largely in line with that of PW6. She confirmed that the meeting at her house was addressed by Mr. Chiyoye, the Respondent and Mr. Kabasa. She also confirmed receiving K200 from the Respondent and being accused by the other women of having squandered the promised Kl0,000 empowerment loans and that PW 12 found the women arguing about the same. As shown at page 215 of the record of appeal, PW7 conceded that she thought it was alright to sell her vote for money. PW12, who described himself as a PF member and a councillor in Kapiri Central, confirmed witnessing the scuffle at PW7's house. J56 In his testimony, the Respondent stated that on 10th August, 2016 he was at RW3 's house who had lost a child "the previous week" and that his alibi was not an afterthought. RW2 , Chriscential Phiri, testified that he was a UPND member and was campaign programme officer for candidates that stood in Kapiri Mposhi. It was his testimony that he and the Respondent went to RW3's home to pay their respects as he had lost a son. Later they proceeded to the Respondent's farm and that he was with the Respondent the whole day on 10th August, 2016. In his testimony, RW3, who at page 256 of the record of appeal described himself as a UPND member and District Co-ordinator for Kapiri Mposhi, confirmed that the Respondent and RW2 visited him on 10th August, 2016 to console him over the loss of his son, who he said passed away "between 7 th and 8 th June, 2016". We have considered the evidence on record and the submissions made on this ground. We note that the_ learned Judge in the court below discredited the testimonies of PW6, PW7 and PW12 regarding the events of 10th August, 2016 in Matilyo compound. At pages 50 to 51 of the record of appeal, the trial Judge made the following observation: J57 "It is clear to me that the two witnesses were mostly motivated by the desire to gain monetary benefit and lacked integrity, as such it is highly likely that they would deliberately resort to peddling falsehoods. With these observations I have come to the conclusion that PW6 and PW7 are not witnesses of truth upon whose evidence any reliance can be placed, in the absence of independent corroboration. I have also considered the evidence of PW12 whose loyalty to the petitioner was so obvious to such an extent that I cannot accept him as a wholly impartial and reliable witness." In contrast, the learned Judge's view on the Respondent's evidence was in these terms: "The counter evidence of the respondent and his witnesses was that on 10th August, 2016 they had visited RW3 to console him following the death of his son. The respondent denied being at Matilyo compound on the date in question. I find the version of the events as narrated by the Respondent and his witnesses to be probably true compared to that of the Petitioner's witnesses." It is evident to us that, under this ground of appeal, the Appellant seeks to attack the findings of fact made by the learned trial Judge in respect of the evidence put before her and also the conclusions she drew from those findings. It is an invitation for this Court to interfere with the findings of fact made in the court below. The instances in which an appellate court will interfere with findings of fact of a lower court have been well settled. Both parties in the instant case have made reference to the Marcus Achiume 7 case which clearly articulated the principle that an appellate court can only interfere with a finding of fact where it establishes that J58 the trial court's decision was perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts, which, on a proper view of the evidence, no trial court acting correctly could reasonably make. The question is does this ground of appeal in the instant case satisfy any or more of the conditions as indicated in Marcus Achiume?7 The Appellant's contention was that the trial Judge chose to believe the Respondent's version of events even when there were inconsistencies in his testimony and that of his witnesses. It seems to us that the Appellant's main grievance is that the trial Judge discredited his witnesses and placed more weight on the Respondent's testimony. We have closely examined the record of appeal in an effort to see whether the findings of the court below offend any of the established principles based on which an appellate court can interfere with, or overturn, the findings of fact of a lower court. From our perspective, the learned Judge's consideration of this aspect of the case hinged on the credibility and reliability of the witnesses brought by the Appellant and the Respondent. She listened to and observed the demeanor of PW6, PW7 and PW 12. She also did the same for the Respondent and his witnesses. The learned Judge rendered her verdict, on this aspect, when all the J59 r evidence was fresh in her mind. In her view the Appellant's witnesses were not credible and reliable. And as earlier noted, the learned trial Judge had categorically stated that due to conflicting evidence between the Appellant and the Respondent and their witnesses in regard to allegations of corruption, undue influence and intimidation, the witnesses had to be subjected to strict scrutiny of their respective integrity. She, in particular, called in aid the following reasoning in Christopher Kalenga v Annie Munshya 18 where Kaoma J (as she then was) said: "In an election petition, just like in an election itself, each party is set out to win. Therefore, the Court must cautiously and carefully evaluate all the evidence adduced by the parties. To this effect evidence of partisans must be viewed with great care and caution, scrutiny and circumspection .... It would be difficult indeed for a Court to believe that supporters of one candidate behave in a saintly manner. While those of other candidates were all servants of the devil. ... In an election contest of this nature, witnesses most of them motivated by the desire to score victory against their opponents will deliberately resort to peddling falsehoods. What was a hill is magnified into a mountain" Other than claiming that the trial Judge should not also have believed the Respondent's version of events on 10th August, 2016 in Matilyo compound, the Appellant has not given this Court any basis on which to fault the learned trial Judge in her findings. In the English case of McGraddie v McGraddie 19 the United Kingdom Supreme Court confirmed that matters of credibility and reliability of witnesses were pre-eminently a matter for the judge at first J60 .. instance and that an appellate court should not generally interfere with that judge's findings of fact. In the view of the court below, PW6 and PW7 were likely to peddle falsehoods motivated by financial gain. There is nothing on the record that would compel us to fault the trial Judge's findings in regard to PW6 and PW7. The foregoing notwithstanding, it is our considered view that the learned trial Judge should have also subjected the testimonies of the Respondent and his witnesses to closer scrutiny on this aspect. We say so because, as shown at pages 252 and 256 of the record of appeal, RW2 and RW3 described themselves as UPND members and functionaries. RW2 said that the role he played in the August 2016 election was that of "campaign programme officer". RW3 gave his title as "District Coordinator". And according to RW3, RW2 was responsible for drawing up the campaign programme. It is clear from the record that RW2 and RW3 were partisan witnesses. The trial Judge should have approached their testimonies with greater care and caution as it was highly probable they had an interest to serve and their evidence should have been corroborated. Secondly, in regard to the death of RW3's son, the Respondent testified, as shown at page 246 of the record, that J61 ,i RW3 's son passed away "the previous week". Since, according to the record, the visit to console RW3 was undertaken on 10th August, 2016, this would place the occurrence of the death of RW3's child in early August, 2016. On the other hand, RW3, at page 256 of the record, gave the date of his son's death as "between 7 th and 8 th June, 2016". This was a glaring inconsistency in the evidence which the learned trial Judge should have addressed as it touches on the credibility of the testimonies of the Respondent and his witnesses. Recently in Changano Kakoma Charles v Kundoti Mulonda, 20 we stated that "the issue of credibility is broad and includes the demeanour and the perception on truthfulness of the witness and consistency of one's testimony." We affirm that position in this case. In view of the foregoing, we cannot support the finding of the trial Judge that the Respondent's version of events on 10th August, 2016 was, to use her words, "probably true". A closer scrutiny of the evidence on record reveals otherwise. We hold that had the learned trial Judge appropriately dealt with the evidence on this aspect, she would not have come to the conclusion that she did in regard to the truthfulness of the Respondent and RW3. We accordingly reverse the trial court's finding on this aspect. J62 The question then is, where does ground three of this appeal stand? It was the task of the Appellant to prove, with convincing clarity, tha~ his version of events in Matilyo compound on 10th August, 2016 was the correct one as opposed to that of the Respondent. Merely discounting the Respondent's evidence on this ground was not sufficient. In Changano Charles20 we said the following: "In election petitions, the burden of proof lies on a petitioner and where the trial court finds evidence unconvincing or where his evidence does not prove the allegation to the required high standard, it matters not the evidence proffered by the other party, the case will fail." Based on the evidence on record and the submissions, we find that the Appellant has not discharged his burden under section 97(2)(a) of the Act. We accordingly find ground three of this appeal devoid of merit and it fails. We now turn to ground four. In this ground, the Appellant alleges that the trial Judge erred in law and in fact when, having found that the Respondent had committed a corrupt act, she held that the same had no significant impact on the result of the election in Kapiri Mposhi constituency. PWlO, Beauty Mukonchi, testified that in July, 2016 she attended a meeting addressed by the Respondent in Shipangula J63 ,. village in Kakolo area. That after the meeting, the Respondent gave her Kl,000 on behalf of other women and promised more money if they voted for him. The Respondent also left campaign posters and some footballs for the youth and women. PW 11, Peter Munkuli, also testified that he attended the meeting in July, 2016 and that after the meeting, the Respondent gave him KlOO so that he could campaign for him. PWl 1 also confirmed that PWlO received Kl,000 from the Respondent. After reviewing the evidence of PW 10 and PW 11, the learned trial Judge found the two witnesses to be truthful and that their evidence was not controverted by the Respondent. The trial Judge held that although the witnesses expressly indicated that the money they received from the Respondent was for campaigns, she was of the view that the promise to pay them more money after the election was meant to induce them, contrary to section 81(1)(c) of the Act. The Appellant particularly took issue with the portion of the Judgement of the court below at page 53 of the record of appeal where the learned trial Judge said: "I must however stress that although the promise which was made may have subjected the Respondent to penalties under the Act, it does not in my opinion provide a basis upon which this election can be nullified. It J64 is apparent that the said promise to induce the voters was. not wide spread as it was only restricted to a small group of women m Kakolo area. In my considered view, it had no significant bearing on the result of the whole Kapiri Mposhi constituency ." Citing various authorities, the Appellant argued that the standard was no longer how widespread the corrupt or illegal act was, but the mere fact that it happened. Learned counsel Mr. Y alenga questioned whether, having found that there was a corrupt or illegal act by a candidate, the court could not proceed to nullify the election even if it was not shown that the majority of voters were prevented from voting for their preferred candidate. Counsel's view was that the purpose of elections in a democracy was to elect persons of integrity into office. Mr. Chungu, for the Respondent, disagreed and argued that unlike the repealed section 93 of the Electoral Act, 2006 , section 97(2) of the Act was couched conjunctively and not disjunctively. He contended that the items in section 97(2) of the Act were joined by the word "and", meaning the petitioner had to prove all elements in the provision. Mr. Chungu submitted that the trial Judge was on firm ground when she determined that the illegal act was not sufficient to void the election. We have reviewed the evidence on record and carefully considered the submissions on this ground. I . t 1s not in dispute J65 that the Respon:dent held a campaign meeting in July, 2016 a; Kakolo area in Kakwelesa. It is also not in dispute that after th meeting, and as testified to by PW 10 and PW 11, the Responder gave out money to some people that attended the meeting ar promised more money after being elected. The learned trial Jud found that the promise for more money amounted to an infracti of section 81 (l)(c) of the Act. Section 8 l(l)(c) reads: "81 (1) A person shall not, either directly or indirectly, by oneself or ' any other person corruptly- (c)make any gift, loan, offer, promise, procurement or agreement for the benefit of any person in order to induce the person to proc u to endeavour to procure the return of any candidate at any electi, the vote of any voter at any election;" Section 81 creates the electoral offence of bribery anu paragraph 1 (c) clearly proscribes the making of a gift, loan, offer, promise, procurement or agreement for purposes of inducing a person in order to gain a benefit in the electoral process. The learned trial Judge found the Respondent wanting in respect of this provision in relation to what transpired after his meeting with the electorate in July, 2016 in Kakwelesa. He had made a promise to voters to pay them more money after he won the election. However, the trial court held that that act of inducement on the part of the Respondent, though offensive to section 81 ( 1) ( c), did not J66 • attain the majority threshold required in section 97(2)(a), stating in the Judgment at page 53 of the record of appeal that: "It is apparent that the said promise to induce the voters. was not widespread as it was only restricted to a ~m~I~ group of ~omen m Kakolo area. In my considered view it had no s1grnf1cant bearmg on the result of the whole Kapiri Mposhi constituency." The Appellant questioned the trial Judge's reasoning and urged us to reverse the finding of the lower court. We disagree. Earlier in this Judgment, we stated, as we have done in many of our earlier decisions, that the requirement that the majority of voters were or may must have been influenced by the malpractice of a candidate is an integral requirement to be proved for an election to be nullified under section 97 (2)(a) of the Act. Earlier in this Judgment we referred to our recent decision in Austin Uato v Sitwala Sitwala. 14 At page J22 of that Judgment we affirmed the majority requirement in these terms: " .. .it is not sufficient for a petitioner to prove only that a candidate committed an illegal or corrupt practice or engaged in other misconduct in relation to the election without proof that the illegal or corrupt practice or misconduct was widespread and prevented or may have prevented the majority of the voters in the constituency, district or w ard from electing a candidate of their choice." The Appellant did not adduce any evidence to prove to a fairly high degree of convincing clarity that the incident at Kakolo in Kakwelesa affected the majority of the electors in Kapiri Mposhi J67 Constituency. Instead, we note that Mr. Yalenga argued that the point of an election is to put persons of integrity into office and that since it had .been proved that the Respondent violated section 81(l)(c) of the Act, he should not, in counsel's words "stand on the podium" as a winner. We agree with the Appellant that there should be integrity on the part of election candidates. That is in fact the essence of the proscriptions that candidates and other players in the electoral process are warned about in our electoral laws and regulations. However, the law as it stands now in section 97(2)(a) of the Act includes the requirement that the illegality or misconduct that is proved should have influenced the majority of the voters into making a choice they would not otherwise have made had the catalyst of the malpractice not existed. Further, we note that at page 173 of the record of appeal, the Appellant under cross-examination indicated that there were 93 11 · . . Kapiri Mposhi Constituency and that he h d po mg stations 1n . . . a grievances 1n eight where malpractices allegedly occurred. This leaves 85 polling stations where no allegations of malpract· ice were proffered as far as this matter is concerned. We see no basis u h' pon w ich to fault the fi d . Judge W h . e old that she correctly interpreted and in ing of the trial . applied the law J68 when she found that the electoral transgression on the part oft Respondent was not proved to the required standard. Ground fo of the appeal is unmeritorious and we dismiss it. Turning to ground five, the Appellant alleges that the co1 below erred in law and in fact when it found that the Appellant h not proved that the Respondent had knowledge or consented approved of the corrupt act committed by Sameman Hakalumh at Kapiri Mposhi Secondary School polling station. The Appellc testified that he was informed that Sameman Hakalumbwe '"' found bribing voters in the company of the Respondent and o Obby Kabasa. The record of appeal at page 181 shows that unc cross-examination, the Appellant conceded that his informant\\ also just informed about the bribing incident at Kapiri Mpo: Secondary School polling station. The other witness on t] aspect, PW13, Patrick Mulenga Chola, testified that he was serv1 as a polling agent for the PF at Kapiri Mposhi Primary Sch polling station when he overheard a group of women saying tl there was a person distributing money at the gate. PW proceeded to the gate and found an individual, who he identif as Sameman, the UPND District Chairperson, giving out K50 no and urging people to vote on the UPND symbol. PW 13 testif J69 I ~1111111 that he apprehended the person and handed him over to the police but he was later released. PW13 denied apprehending Obby Kabasa, Mrs. Kabasa .. and Mr. Lundale because he did not see them. He also did not see the Respondent at the scene. In his submissions, the Appellant took issue with the following portion of the Judgment of the court below at page 54 of the record of appeal: "But most importantly the crucial feature of this complaint is that, the petitioner has not established in keeping with Section 97(2) of the Electoral Act (sic), that the alleged corrupt practice by Sameman Hakalumbwe was committed with the knowledge or consent or approval of the respondent. This allegation cannot therefore succeed." The Appellant maintained that the Respondent consented to or approved of the conduct of Sameman Hakalumbwe by virtue of being his agent. In rebuttal, the Respondent argued that he was only accountable for acts which he knew about or consented to or approved of. That the unknown and unauthorized activities of a truant agent cannot be the basis for nullifying an election. At page 249 of the record of appeal, the Respondent conceded to knowing Sameman Hakalumbwe; that he was an agent for the UPND and the Respondent also described Sameman Hakalumbwe as his "accredited agent." The Respondent testified that he was not J70 ,. with Sameman Hakalumbwe on election day until polling ended. The Respondent stated that Sameman Hakalumbwe was under "specific instructions" to be the team leader at the results totaling centre in Kapiri Mposhi. It was the Respondent's further evidence that he was in constant touch with Sameman Hakalumbwe "coordinating the results he was receiving with the PVT"; that he was communicating with Sameman Hakalumbwe by way of cellphone and had reason to believe that he (Sameman Hakalumbwe) was at the totaling centre. We have considered the Judgment of the court below, the evidence and the parties' submissions on this aspect. The question that falls for our consideration is whether, as alleged by the Appellant, the Respondent could be held accountable for the actions of Sameman Hakalumbwe at Kapiri Mposhi Secondary School polling station on polling day. We have already outlined the prov1s1ons of the law as provided in section 97(2) of the Act on the basis of which an election of a candidate may be nullified. Electoral transgression will lie at the feet of the candidate either by his own doing or by malpractice perpetrated by his election or polling agent or by a third person with the knowledge of the candidate or his election or J71 polling agent. Provided all the ingredients in section 97(2)(a) of the Act are proved to the required standard, the election can be nullified. In this case, the Appellant seeks to ascribe the alleged corrupt acts of Sameman Hakalumbwe to the Respondent. As already noted, the Respondent admitted to knowing Sameman Hakalumbwe and described him as "an agent for UPND" and as his "accredited agent". An examination of the Act and the attendant Electoral Process (General) Regulations reveals that there is no provision for, or definition of, the term "accredited agent". The law provides for an "election agent" or a "polling agent". The Appellant argued that section 97(2)(a) of the Act covers the actions of an election agent even if the illegal or corrupt conduct was not consented to by the candidate. In our consideration of ground two, we dealt at length how, according to the electoral laws, a person becomes an election agent of a candidate. The Appellant has not adduced clear and cogent evidence on record that Sameman Hakalumbwe was the Respondent's duly appointed election agent. The trial court also did not categorically state whether or not it was proved that Sameman Hakalumbwe was the Respondent's election or polling agent. J72 There is also nothing on the record to compel us to conclude that Sameman Hakalumbwe was a polling agent for the Respondent. Section 2 of the Ele.ctoral Process Act defines "polling agent" as "an agent appointed by a candidate in respect of a polling station." Further, regulation 56(1) of the Electoral Process (General) Regulations states that a polling agent is appointed by the candidate or by the candidate's election agent by, according to regulation 56(2), giving written notice of the names of the appointed polling agents at least four days before polling day. We have seen nothing on the record to show clearly that Sameman Hakalumbwe was a polling agent of the Respondent. According to the Respondent, as shown at page 249 of the record of appeal, Sameman Hakalumbwe was under specific instructions to be a team leader at the totaling centre in Kapiri Mposhi. The question then that confronts us is whether there is evidence on the record that links the Respondent to the alleged corrupt acts of Sameman Hakalumbwe at Kapiri Mposhi Secondary School polling station. More specifically, did the Respondent, as alleged by the Appellant, know of or consent to or approve of, the alleged electoral malpractice committed by Sameman Hakalumbwe? The learned Judge in the court below J73 ' found that the Appellant had not established, in accordance with section 97(2)(a) of the Act that the alleged corrupt practice by Sameman Hakalumbwe was committed with the knowledge or consent or approval of the Respondent. We affirm the finding of the court below. We reiterate that Zambian jurisprudence has long required that the issues raised in an election petition must be established to a fairly high degree of convincing clarity. It is a standard that is higher than a mere balance of probability, as aptly stated in Lewanika and others v Chiluba 5 which we referred to earlier. The Appellant's evidence in the instant case failed that test on this particular aspect in the court below and, in this Court, we see no basis upon which we can reverse the decision of the lower court. As aptly put by the Supreme Court 1n Brelsford James Gondwe v Catherine Namugala: 17 "The burden of establishing any one of the grounds lies on the person making the allegation and in election petitions, it is the petitioner in keeping with the well settled principle of law in civil matters that he who alleges must prove. The ground(s) must be established to the required standard in election petitions namely fairly high degree of convincing clarity." In view of the fore going, we find ground five of this appeal devoid of merit and it is dismissed. J74 All the grounds of tp.is appeal are unmeritorious and have failed. The appeal is dismissed. We order that each party s hall bear their own costs . ..... ~ .~ - A. M . Sitali ............ ~ ...... . M. S. Mulenga CONSTITUTIONAL COURT JUDGE CONSTITUTIONAL COURT JUDGE ~4 . ......... ~ .... E. Mulembe P. Mulonda CONSTITUTIONAL COURT JUDGE CONSTITUTIONAL COURT JUDGE J75