Eddie Christopher Musonda v Lawrence Zimba and Anor (APPEAL No. 041/2012; SCZ/S/033/2012) [2013] ZMSC 50 (30 January 2013)

IN THE SUPREME COURT FOR ZAMBIA SCZ/S/033/2012 APPEAL No. 041/2012 HOLDEN AT LUSAKA BETWEEN EDDIE CHRISTOPHER MUSONDA APPELLANT AND LAWRENCE ZIMBA ELECTORAL COMMISSION OF ZAMBIA 1 STRESPONDENT 2N°RESPONDENT CORAM: CHIBESAKUNDA, AG. CJ., MUMBA, AG. DCJ, CHIBOMBA, MWANAMWAMBWA, AND PHIRI, JJS. ON 19TH JUNE, 2012 AND 30™JANUARY, 2013 FOR THE APPELLANT ( 1) MR. B. C. MUTALE, SC OF ELLIS AND COMPANY WITH (2) MR. S. LUKANGABA OF MWEEMBA CHASHI AND PARTNERS FOR THE 18 T RESPONDENT: (1) MAJOR LISITE OF CENTRAL CHAMBERS FOR THE 2ND RESPONDENT: (2) MR. A. YALUMA, A. M. WOOD AND COMPANY JUDGMENT Chibesakunda, Ag. CJ., delivered the Judgment of the Court. Cases referred to 1. Michael Mabenga v Sikota Wina and Others (2003) ZR. p.110 2. Josephat Mlewa v Eric Whiteman (1995- 1997) ZR. p.171 3. Akashambatwa Mbikusita Lewanika and Others v Fredrick Jacob Titus Chiluba (1998) ZR p.79 4. Herbert Ijegohu v AG 1985 ZR. p.163 5. Anderson Kambela Mazoka & Others v L. P. Mwanawasa, SC., and Attorney-General (2005) ZR p.138 6. Mubika Mubika v Poniso Njenlu Appeal No. 114/2007 7. Lwimbo v Mutukwa Laws referred to 8. Section 24 (1) (e) of the Supreme Court Act Cap 25 9. Section 93 (2) of Cap 13 of the Electoral Act 10. Section 79 of Cap 13 Electoral Act This Appeal was initially E. C. Musonda v Lawrence Zimba 1st and Electoral Commission of Zambia (ECZ) 2 nd Respondent. At the hearing of the Appeal State Counsel Mutale informed the Court that the Appeal against the 2 nd Respondent was being abandoned. This application was granted. So this judgment will only deal with the Appeal against the 1st Respondent. In this appeal, the Appellant is the loosing Parliamentary candidate in the Trip-¥tit~ E lections,. (Presidential, Parliamentary and Local Government) held on the 20th of September, 2011. In the Petition before the High Court, the Appellant established that there were three other candidates. These are Mr. Lawrence Zimba (now the 1st Respondent), Mr. Robby Chungwa and Bishop Maluti. The Appellant stood in the Kapiri-Mposhi Constituency on the Patriotic Front ticket. The three (3) other persons, contesting the same seat, stood on different political party tickets namely; Lawrence Zimba 1st Respondent on the Movement for Multiparty Democracy (hereinafter referred to as MMD), Mr. Robby Chungwa on the United Nation Party for Development (hereinafter referred to as UPND) and Bishop Maluti on the United National Independence Party (hereinafter referred to as UNIP). During the Election, the 1st Respondent polled 16,575 votes. The Appellant polled 9,519 votes, Robby Chungwa polled 6,654 votes and Bishop Maluti polled 884 votes. The 1st Respondent was therefore declared as the duly elected Member of Parliament for Kapiri-Mposhi Central Constituency, by the Returning Officer. The Appellant then challenged these results alleging:- That (i) prior to the Elections, in the course of his campaign, the 1st Respondent and his agents did offer and in fact made cash and maize donations to the electorate in order to procure and ~olicit votes as fQllo:s.1,rs; a. Between 28th August, and 4 th September, 2011, various women groups were given Kl,000,000.00 each by the former First Lady Mrs. Thandiwe Banda and the 1st Respondent; b. On 19th September, 2011, maize from Food Reserve Agency was distributed in Chang'ondo ward. ii. During the afore stated period the Respondents, their agents and the Council Secretary engaged seven vehicles owned by Muchi Agro Marketing, a company whose major shareholder was the aspiring councilor for Kapiri-Mposhi central ward, on the same party ticket as the 1st Respondent, there by undermining the credibility of the elections in favour of the 1st Respondent; 111. On 12th September, 2011, in the course of his campaigns, the 1st Respondent and his agents used public resources to procure transport to ferry the electorate to a rally, held 1n Kapiri-Mposhi, addressed by the former Republican President Mr. Rupiah Banda. That the funds were drawn by the Council Secretary Mr. Venture Kafula, from the Council Bank Account and paid to taxi drivers K200,000.00 each for fuel in order to entice the electorate to vote for the 1st Respondent; 1v. On 20th September, 2011, after the campaign period had c;Josed, in Qrg~r t_o solicit atld Qro_cure votes from the electorate, the 1st Respondent and his agents ordered for all persons that were engaged in the PUSH Project of cleaning drainages in the township to be paid all their dues. Further that the 1st Respondent made cash donations to the electorate in Kapiri Mposhi ward urging the electorate to vote for him; v. During the counting of the votes cast on 20th September, 2011, the 2 nd Respondent and its agents had ballot boxes which contained certificate of results, which was irregular and undermined the credibility of the elections; v1. In the verification exercise conducted by the Petitioner and his agents, it was established that the 2 nd Respondent had allowed persons to vote for deceased persons in the names of James Nyirenda, Ashford Mumba, Oscar Zulu, Dominic Mwape, Margaret Mwape and Friday Mambwe thereby undermining the credibility of the elections. His prayer was for: - 1. A declaration that the election of the 1st Respondent as a member of the National Assembly for the Kapiri-Mposhi Parliamentary Constituency is null and void; 11. A declaration that the illegal practices committed by the Respondents and/ or their respective agents so affected the election result that the same ought to be nullified; u1. l\p qrq(J!r Jhat th e 9ost_s occasioned by the Petition be borne by the Respondents. The lower Court at the end of the hearing of the matter dismissed heads number (v) and (vi), as the Court held that the Appellant had abandoned these grounds as he did not adduce any evidence supporting these two (2) claims. On the rest of the four(4) grounds, ground 1, was split in two(2), resulting in the Appellant putting up five(S) grounds as the basis of seeking the Court to overturn the elections. The Appellant, as the Petitioner called six:(6) witnesses in support of these five(S) grounds pleaded in the petition. Out of the five(S) allegations, the learned trial judge found only 2 allegations to have been proved to the required standard as pronounced in the case of Michael Mabenga and Others v Sikota Wina1 • The claims found to have been proved up to the required standard were:- i. That prior to the Elections, in the course of his campaign, the 1st Respondent and his agents did offer and in fact made cash and maize donations to the electorate in order to procure and solicit votes as follows:- a. Between 28th August, and 4th September, 2011, various women groups were given Kl,000,000.00 each by the former First Lady Mrs. Thandiwe Banda and the 1st Respondent; b. On 19th September, 2011, maize from Food Reserve Agency was distributed in Chang'ondo ward. In order for the matter to be properly analyzed we will restate relevant evidence on all the five (5) claims including those claims which were not proven up to the required standard as per Mabenga1 case. The evidence to prove the first limb of the first allegation was given by PW2. His evidence was that a lady by the name of Elizabeth Mulenga Nachisambwe (also known as Lizzy), the former MMD Councillor on the 19th September, 2011, distributed maize giving a condition that the beneficiaries had to vote for MMD (1 st Respondent). In cross examination, his evidence was that the residents of Chang'ondo were collecting maize from Lizzy's residence after a door to door announcement was made inviting the residents to go and collect the maize. He said that Kennedy Silumbwe and Mwansa (as MMD Campaigners) called him from his home to participate in this exercise on the 19th of September, 2011 at around 17 .00 hours. He further testified that he knew that about 52 people in Chang'ondo area had benefitted because he obtained a list of them as beneficiaries from Kennedy Silumbwe and Mwansa who were in his group as MMD Campaigners. He told the Court that he was telling the truth because at the time when this was going on , b e was a m ember of MMD and only left to join Patriotic Front after elections. He further told the Court that although he did not know how the maize got to Elizabeth Mulenga Nachinsambwe, he knew that the maize was from Food Reserve Agency. The 1st Respondent in response to this allegation called RW 4 Elizabeth Mulenga Nachinsambwe. She, in her defence, stated that as a peasant farmer, she had kept some maize from the last season's harvest to sustain her agents in Changhndo area during elections. This was to sustain her 24 election agents. She testified that the maize she was distributing came from her harvest. She denied the assertion that the motive for distributing maize to the residents of Chang'ondo was to influence the voters to vote for the 1st Respondent. The learned trial judge concluded at page 25 that yes Miss Elizabeth Mulenga Nachinsambwe RW4 did distribute bags of maize to residents of Chang'ondo area on the 19th September, 2011 just before the elections. He accepted the Appellant's argument that this was meant to influence the voters to vote for the 1st Respondent and MMD candidates. According to the learned trial judge, although in rebuttal RW4 cla imed that she distributed that maize only to her 24 elections agents for their sustenance during the campaign period, it was an act of treating considering that it was done on the eve of the Election Day after the close of the campaign period. He further rejected the rebuttal evidence, ~in9e no evid~nc@ was cc;tlle.cl to prove that those who benefited from the maize were RW4's election agents in light of the evidence of PW2 to the effect that he knew the 52 beneficiaries of the maize, which evidence was not seriously disputed in cross examination. The learned trial judge therefore lebelled this activity as an act of serious malpractice which was intended to influence the electorate not to vote for the candidate of their choice. He, therefore, found that this allegation was proved to the requisite standard. On the second limb of first allegation which was that the 1st Lady between 21 st August, 2011 and 4 th September, 2011 gave cash handouts to various Women Organizations, PW3 and PW4 testified that the then wife of the then MMD Member of Parliament for Kapiri Mposhi (Mrs. Malwa) approached the women at the Market and mobilized them to go to the Council Office on 30th August, 2011 to form groups of tens because she had come with nice things for them. She invited these groups to Council Offices. About 50 women in groups of tens each went to the Council Office and found Mrs. Malwa, the then 1st Lady, the 1st Respondent and the Council Secretary. These four(4) people addressed the women by telling them that MMD did not want women to suffer and that for that reason, they were to be given money so that they in turn vote for MMD. They were also told that if they voted for MMD they would not suffer. The women who were being addressed were told that, if they voted for Mr. Sata and PF they would suffer as there would be war. Each group of these women was then given KIO million with each member receiving Kl00,000.00. They were told to vote for MMD with the promise that if they did that, they would be given K 1. 5 million each after elections. They were also urged to inform other women to come to Council Offices to collect money and to vote on the Clock (MMD}. According to PW4 their National Registration Cards were collected and their numbers recorded. PW4 told Court that as the 1st Respondent was addressing them about 50 women all together, Mrs. Thandiwe Banda the then 1st Lady was then putting money in envelopes and passing those envelops to Mrs. Malwa who in turn gave those envelops to these groups of women. PW3 had even volunteered to be one of the secretaries of one of these groups. In rebuttal, the Respondent through RWI, RW2 and RW3 put up an alibi that between 28th August, and 4 th September, 2011 they were out on a campaign trail in a place called Ngabwe, the West of Kapiri Mposhi. Although there was no other evidence from any beneficiary the learned trial judge held that the evidence established malpractice which was intended to influence the electorate. The learned trial judge held that the alibi of the 1st Respondent lacked details in the light of the evidence by both PW3 and PW4 to the effect that they saw the 1st Respondent on 30th August, 2011 in the company of Mrs. Thandiwe Banda the then 1st Lady. The learned trial judge further held that it was beyond doubt that Mrs. Thandiwe Banda, the then 1st Lady at the time, was in Kapiri Mposhi on 3Qth August, 2011 and because the campaign was in full gear, it was reasonable to expect the 1st Respondent to have been present and to have accompanied her on her tour of the nerve centre of the constituency he was contesting 1n. He, therefore, concluded that this allegation had been proved to the required standard as per Mabenga case 1 . The Learned trial Judge said "It is a well known fact that in the last twenty years of Zambia's Political history, first ladies have been hugely influential especially in an election year. I, therefore, accept the evidence by PW3 and PW4 that they saw the 1st Respondent in the company of Mrs. Thandiwe Banda on 30th August, 2011. But even assuming that the evidence of RW 1, RW2 and RW3 were true as regards the alibi, there is nothing that would have prevented the 1st Respondent from traveling back to Kapiri-Mposhi Township to be with the 1st Lady on that day for her scheduled business". The learned trial judge concluded that it was common knowledge that the first lady visited a number of places in drumming up support for M_MD c_o.ndidatcs.:::::::lle accepted the evidence of PW3 and PW4; H e found that the allegation was proved to the required standard as per Mabenga case 1 . With regard to claim number (ii) which related to the hiring of seven(7) motor vehicles by the Electoral Commission of Zambia from Muchi Investments to transport voting materials and Election Officials to various polling stations, the evidence in support was given by PWl who is the Appellant. He testified that the Counsel Secretary chaired the meeting; at which ECZ hired ten motor vehicles; seven (7) of which were to come from RWS, Mr. Kabwe. He told the Court that Muchi Investments was the name of the company under which Mr. Kabwe, RWS operated the transport business and that Mr. Kabwe was a candidate for the Kapiri-Mposhi Central Constituency ward under the MMD ticket. In cross examination, PWl expressed ignorance of the shareholders of Muchi Investments Company. He told the Court that the contract for the transport from Muchi Investments Company was concluded seven days before the Elections. The evidence in rebuttal was given by RWS, Mr. Kabwe who was a Ward Councilor candidate on MMD ticket. He told Court that it was acceptable for the Electoral Commission of Zambia to hire vehicles even from an MMD candidate who was therefore an interested party. He testified that the Electoral Commission of Zambia had put up an advertisement and that as a consequence of that there was an _ interview which he attended with other transp_Qrte_r~; he was s_clectcd along with two others. He was fortunate to have been given a contract. He therefore, argued that there was no evidence whatsoever, tending to show that by hiring his vehicles to the Electoral Commission of Zambia, he tilted the majority vote, if at all, in favour of the 1st Respondent thereby causing the petitioner to lose. The learned trial judge, on this allegation, held that this allegation was outside the scope of Section 93 (2) of the Electoral Act7. He held that hiring of RW5's Motor vehicles by the Electoral Commission of Zambia appeared to have been a pure business transaction. He further held that even assuming that the Electoral Commission of Zambia's choice of RWS's motor vehicles was motivated by the fact that RWS belonged to the ruling party, that could still not be an offence under section 93 (2) of the Electoral Act. With regard to allegation number (iii) which related to the use of public funds on 12th September, 2011, to hire Taxi Drivers to ferry the electorate to a political rally addressed by the then President, Mr. Rupiah Banda, according to PWS, the MMD organizers approached him as a taxi driver and told him that they wanted Taxi Drivers to hire them to drive to the New Hospital to meet the then President Mr. R. B. Banda. He and nine fellow Taxi Drivers drove to the Council Offices where they found Mr. Kafula, the Council Secretary. Mr. Kafula told them that he was going to give them some money for fuel after which he would tell them what to do. The Council Secretary then gave them ~200,.000.00 for fuel after v, h ich he d irected them ~ ck u p some MMD cadres, to drive them to the hill to wait for the then President. These Taxi Drivers obeyed these instructions. They afterwards joined in the Presidential convoy to the town centre where the President then addressed the rally. According to the witness, after the rally, Mr. Kafula called then back and urged them to vote for the 1st Respondent, H. E. Mr. Rupiah Banda, and Mr. Kafula (MMD candidates) respectively, promising them some more money if they voted for MMD and the 1st Respondent after elections. In cross examination, he told the Court that he knew Mr. Kafula that he was the 1st Respondent's agent. The 1st Respondent did not call any evidence to specifically rebut this allegation. On this allegation, the learned trial judge held that there was no evidence to prove the allegation that the money given to Taxi Drivers was from public funds. According to him had there been proof that the source of money was from public funds, that would have amounted to malpractice. At the end of analyzing the evidence, the trial judge held that as there was no evidence to establish that the money came from public funds and that it affected the pattern of voting, this allegation was not therefore proved to the required standard as stated in the case of Michael Mabenga1• He further went on to hold that even if it had been proved that that money :i;,vas from RUblic funda,._and::going by thc::dccis±on::oLth e:"Ylew~ case, it was proved that the 1st Respondent did personally give the money to taxi drivers or that he acquiesced to giving the money to taxi drivers. It would have been still necessary to prove that such malpractice prevented the majority of voters from voting for the candidate of their choice. Therefore, as it was not proved that the money given to the Taxi drivers amounted to bribery or corrupt practices and as it was not proved that the giving of money tilted the vote in favour of the 1st Respondent, the same allegation suffered the same fate as the other allegation in (ii). Coming to the (iv) allegation, the evidence was given by PW6. His evidence was that on the polling day, in the morning, he saw a group of people estimated to be 300-500, gathered at the Office of the District Commissioner. That he was on his way to pick up his National Registration Card, so that he could go and vote. He was attracted to this crowd of people at the District Commissioner's Office, by the presence of his brother. He discovered that these people were there to be paid for the work they had done, under the Project Urban Self Help (PUSH). His younger brother asked him to wait for him as he was about to get his dues so that they would walk together to go and cast their votes. In the process, the District Commissioner, the 1st Respondent and the MMD Ward Councilor candidate RWS came out of the Office. The District Commissioner addressed the crowd saying that they were going to get their dues after casting their votes, so that they too could vote for the 1st Respondent, RWS and the MMD Presidential _ candid.ate iILr:C:turn for_thc.ir::paymen ts. According t:o the witn ess,- the_ District Commissioner told the crowd that he was concerned that should he pay them before voting, they would be drunk and by mistake would vote for Mr. Sata (PF). He asked those who had voted to remain and be paid. Those who had not voted left the queue to vote before getting their money. All those that had already voted and who remained on the queue according to his estimate, were about 80. He mentioned the names of the people who remained on the line and who were given money. This witness in Cross examination told the court that he witnessed the payment of the money to all the eighty people on the queue. He also said that he witnessed some other money later being distributed in the residential areas and that he witnessed the payments in his area. He said that he went to cast his vote after his brother had cast his because his polling station was a minute's walk from his home and two minutes walk from the District Commissioner's office. He also said that another person called Bomber was arrested for giving cash payments within the precincts of the polling station on the Election Day. He further told the court that even though it was right to pay people for the work they had done, the payment ought not to have been done on the polling day. He also said that Mrs. Chibiya, who was the MMD Constituency Chairperson, continued to give cash to the voters in his area, inspite of the fact that PF cadres had reported this matter to Police and the Police had disrupted this exercise. Further, he said that the MMD branch officials were responsible for recruiting _ people for the PUSH project and that the same people were involved iu the cash payments. The 1st Respondent did not refute this allegation. His only defence was that he had no capacity to order payment to people who had participated in PUSH. This was the 1st Respondent's rebuttal to this allegation. He did not therefore, categorically deny the allegation itself. The Court observed that the 1st Respondent did not categorically deny this allegation, but pointed out that none of the purported beneficiaries were called as witnesses and that this incident was not reported to the District Conflict Management Committee nor to the Police. The learned trial judge therefore held that this allegation was not proved up to the required standard. He further concluded that this allegation suffered the same fate as the other allegations because, according to the learned Trial Judge, for an election to be declared null and void, it was trite law that even if the allegations of malpractice under section 93(2)(c) was proved, it was still necessary for the petitioner in any petition to prove that such malpractice prevented the majority of voters to vote for the candidate of their choice. In conclusion, the learned trial judge held that the Appellant had proved only two allegations out of five (5) up to the required standard. These are allegations la and b. He further held that even with these allegations proved, the petition had to fail as on the totality of the evidence in the petition the petitioner did not prove that these two incidents of malpractice prevented the majority of voters from voting for their preferred candidates. According to him out of votes cast, 1st Re~paodeu1" did o at secure t he m ajority of votes He got 16,0 57 votes. All the losing candidates put together got the majority of votes cast. They got 17,057 combined. So he dismissed the Petition. At the hearing of the appeal, the Respondents after seeking leave to file the Heads of Arguments raised a preliminary argument that the petition was misconceived as the Appellant had not sought leave from the High Court, before lodging this appeal. They cited the case of ZRA v TG Transport ZR. 20073 and argued that the appeal should be dismissed as it was misconceived. The Respondent also referred to Order 19 and 50 of the Supreme Court Act Cap 25 of the Laws of Zambia to support this proposition. The Appellant in response argued that the Respondents arguments had no legal basis. They referred to Section 24 (l(e)) of Cap 25 and also to the case of Herbert v Attorney-General4 in which this court held that Section 24 (i) (e) of Cap 25 was very clear that it provides that leave to appeal against judgments delivered in open court is not required. Leave is only a requirement in appeals which lie from judgments delivered in chambers. On this preliminary point, the court accepted the argument by the Appellant that Section 24 (1) was clear as it provided that:- 24. (1) No appeal shall lie--- a. from an order allowing an extension of time for appealing Jrom. a judgment; b. from an order of a judge giving unconditional leave to defend an action; c. from a judgment given by the High Court in the exercise of its appellate or revisional jurisdiction without the leave of the High Court or, if that has been refused, without the leave of a Judge of the Court; d. from an order of the High Court or any Judge thereof made with the consent of the parties or from an order as to costs only which by law is left to the discretion of the court without the leave of the court or of the Judge who made the order or, if that has been refused, without the leave of a Judge of the Court; e. from an order made in chambers by a judge of the High Court or from an interlocutory order or interlocutory judgment made or given by a Judge of the High Court, without the leave of the Judge or, if that has been refused, without the leave of a Judge of the Court, except in the following cases i. where the liberty of the subject or the custody of infants is concerned; ii. where an injunction or the appointment of a receiver is granted or refused; iii. In the case of a decision determining the claim of any creditor or the liability of any contributory or the liability af any director or other ~fficer un.~r the Companies Act; iv. In the case of a decree nisi in a matrimonial cause or a judgment or order in any Admiralty action determining liability; v. In the case of an order on a special case stated under any law relating to arbitration; f. from an order absolute for the dissolution or nullity of marriage made by a judge in favour of any party who, having had time and opportunity to appeal from the decree nisi on which the order was founded, has not appealed from that decree. As this appeal lay from a judgment delivered 1n open court, this preliminary point had no merit. On the main appeal, State Counsel Mutale indicated that grounds 1 and 4 were being abandoned. That he was only going to argue grounds 2 and 3. On these grounds, State Counsel Mutale submitted that he was going to rely on the filled Heads of Arguments. He went on to tell the Court that the two grounds were inter-related. These are:- Ground 2: "The Learned trial Judge erred in law and inf act when he held that the allegation of payment made to the electorate at the District Commissioners Office was not proved to the required standard." Ground 3 : "The trial eourt fell into error of la\l\· when it failed to appreciate that section 93(2)(c) of the Electoral Act No. 12 of 2006, which states that any corrupt or illegal Practice committed in connection with the election by or with the knowledge and consent or approval of the candidate or his agent provides a separate ground upon which the election of a candidate should the declared void." In his filed Heads of Argument, State Counsel, on ground 2 (now ground 1) argued that the learned trial judge erred in law and fact when he concluded that the allegation of payment of cash to PUSH workers on the polling day was not proved up to the required standard as set out in the Mabenga case2. It was argued that on perusal of the record, there was evidence at page 68 lines 5 to 15 that the 1st Respondent was in attendance when payments were being made to people outside the District Commissioner's office on the polling day. It was argued that District Commissioner told this group of people of 300 to 400 that he wanted to pay them this money before they went to cast their vote so that they could vote for MMD and the 1st Respondent before getting drunk and vote for Mr. Sata (PF) by mistake. It was further argued that according to the evidence before the Court, the Respondent made no attempts to distance himself from such activities. This is why the learned trial judge made this rcma:rk ~a:t pa:ge 14 that: "The only semblance of rebuttal to this allegation came from the 1st Respondent who testified that he had no capacity to order payment to the people who participated in the Push Project. "He did not however categorically deny the allegation itself'. Counsel asked what was the implication of making such remarks. The simple answer according to counsel was that the learned trial judge was making these findings that :- (i) the 1st Respondent was present when money was being given to a group of 80 people. (ii) He did not traverse that these payments were given to people who had worked at the PUSH project on the polling day. (iii) That the recipients were urged to vote for him and MMD as money was being given to these workers on the polling day. His only defence was that he had no capacity to order payment to the people. By making this remark, the learned trial judge found that the 1st Respondent acquiesced and consented to payments on the polling day. According to Counsel, citing section 79 (1) (a - c) which states that (1) Any person who corruptly either directly or indirectly, bribery by oneself or any other person:- (a) Gives, lends, or procures, or offers, promises or agrees to give, lend or procure any money to or for any person for or for any person on behalf of any voter other or any voting ~ersou iu order to induce any voter to vote or refrain fr~m voting or who corruptly does any such act as aforesaid on account of such voter having voted or refrained from voting at any election; (b)Gives, lends or procures, or offer, promises or agrees to give, lend, or procure, any money to or for any voter or to or for any other person on behalf of any voter or to or for any other person for acting or joining in any procession or demonstration before, during or after any election; (c)makes any gift, loan, offer, promise, procurement or agreement to or for any person in order to induce the person to procure or to endeavour to procure the return of any candidate at any election or the vote of any voter at any election." He argued that giving money on the polling day to possible voters and urging them to vote for a particular candidate is an illegal act and comes within the ambit of section 79 of the Electoral Act. Counsel argued in relation to ground 2 (which is 1), that the 1st Respondent consented or participated or acquiesced to an illegal act of giving money in violating section 93 (2)(c). (the learned trial judge fell into error in law and fact when he failed to appreciate that section 93(2} (c) which provides that any corrupt or illegal practice which is committed within the elections by or with the knowledge or consent or approval of the candidate or his election agent or polling agent provides a separate ground UPQil proof of such action, can render an election of a candidate as Member of Parliament to be declared null and void. He urged this court to declare the elections null and void. In arguing ground 3 (which is ground 2 in this judgment), Counsel argued that the Court below made certain findings of facts; (i) that the 1st Respondent was at Kapiri-Mposhi when the 1st Lady came to drum up support for MMD in the election campaign (ii) that even if one had to accept the alibi of RWl, RW2 and RW3's that they had gone out of town on a campaign trail, it was reasonable to accept that they were back to be with the 1st Lady, as it was expected that they should be in the company of the 1st Lady who had come to Kapiri-Mposhi to drum up support for MMD (iii) K10,000,000 was given to women who formed groups of tens each group receiving Klmillion, thus giving Kl00,000.00 to each woman. (iv) this was clearly meant to influence the voters not to vote for the person of their choice. So this exercise by the 1st Lady was contrary to Section 93 (2)(a and c) of the Electoral Act. So Counsel argued that at that point the lower court should have declared the election of the 1st Respondent null and void. Counsel cited Mlewa's cast?. Counsel further pointed to other portions of the Mlewa case2 where this court in distinguishing section 93 (2) (a) from that of section 93 (2) (cl had this to say. "l. Subsection 2 of section 18 in our view sets out ]our clear grounds upon wnich an e1 l l t i~a t e - a . s a member of the National Assembly shall be held void once each is independently proven to the satisfaction of the High Court. Proof of one of the grounds is enough to nullify any election. We are satisfied that subsection (2) of Section 18 sets out four clear independent and separate grounds which if any of them is proven to satisfaction of the High Court then the Election of a candidate as a Member of the National Assembly shall be nullified ... ,, State Counsel argued that Mlewa's case2 was still good law. Section 93 (2) is the same provision as Section 18, supra note at page 24. Counsel for the Respondent in reply supported the holdings of the lower court. Citing the case of Mubika Mubika6 he argued that after the Mlewa case2 the law has developed in the direction that proving an illegal act or a malpractice under Section 93 (2) (c) per se, even when proved to the required standard, is not sufficient to nullify an election result. According to this case, proving an illegal act that is done by the candidate or in presence of the candidate or is done with his consent or acquiesce, or even if it is done by his election or polling agent, per se is not sufficient to nullify an election unless it can be established that such an illegal act or malpractice prevented the members of the public not to vote for their preferred candidate. In other words Counsel argued that the paragraphs in Section 93 (2) do not stand on their own. They are dependent on each other. Counsel argued that Mubika Mubika6 set out the current law. Mr. Mukangaba, in response to this argument, argued that according to him both Mubika Mubika6 and Mlewa.2 cases were still good law. According to him this case Mubika Mubika6 dealt with the application of Section 93 (2) (a) which says:- (2) The election of a candidate as a member of the National Assembly shall be void on any of the following grounds which is proved to the satisfaction of the High Court upon the trial of an election petition, that is to say - a. that by reason of any corrupt practice or illegal practice committed in connection with the election or by reason of other misconduct, the majority of voters in a constituency were or may have been prevented from electing the candidate in that constituency whom they preferred; He further argued that Section 93 (2) sets out a seriatim of four(4) clear grounds upon which an election of a candidate as a Member of National Assembly shall be held void once proof of any one of these grounds stated in Section 93 (2) is established, up to the required standard. He further argued that Mubika Mubika case6 in his view only dealt with the application of section 93 (2) (a). We have examined the record of appeal and the issues raised. We will deal with the two grounds together, because they are inter-related. Section 79 (1) has been quoted supra at p~e 22 Section 79 bas defined the Electoral offences. We agree that bribery is a corrupt and an illegal practice within the ambit of section 79 as an offence. Section 2 of the Electoral Act defines a corrupt practice. It says:~ "corrupt practice" means any offence against this Act which is declared under this Act to be a corrupt practice." "illegal practice" means any offence against this Act which is declared under this Act to be an illegal practice." Dealing with the 1st ground (ground 2), we note that there was evidence that on the polling day the 1st Respondent was in the company of the District Commissioner at the District Commissioner's office addressing workers numbering 300 - 400 workers in PUSH, paying them their dues with a call that they should vote for MMD and 1st Respondent as well. We also note that the 1st Respondent did not traverse these allegations that (i) the District Commissioner on the polling day gave cash to 80 people and (ii) that he was there (iii) that payment was made with a call to recipients to vote for MMD and the 1st Respondent. The learned trial judge in his judgment even made the following observation that "The only semblance of rebuttal to this allegation came from the 1st Respondent who testified that he had no capacity to order payment to the people who participated in the Push Project. "He did not however categorically deny the allegation itself'. Mr. Mutale, SC., in gist, is asking this court to interpret these remarks as findings of fact that the allegation was proved up to the required standard. We have, however, looked at page 23 of the record, where the learned trial judge went on to address himself as to whether or not the appellant had proved this allegation to the required standard as set out in the Mabenga case. Quite contrary to what he had just said, the learned trial judge went on to state that because none of the recipients had been called to give evidence, even though the Respondent did not distance himself from these happenings, and because this malpractice was not reported to the authorities, the allegation was not proved to the required high standard. Looking at these remarks, we accept that the learned trial judge was contradicting himself. He was having his cake and eating it. Nevertheless, we are alive to the principle that he who asserts must prove his assertion. Also it is a well established principle that the learned trial judge, as trier of facts, has the advantage of observing the demeanor of witness to determine as to who was telling the truth in the trial. Bearing that in mind, we cannot upset his findings on this ground. We find therefore, no merit in this ground. Coming to the last argument, (the second ground of appeal) in our view the determination of this ground will centre mainly on the interpretation of section 93 (2) (a & c) of Cap 13 of the Laws of Zambia. This court has set guide lines on the interpretation of the paragraphs in subsection 2 of section 93 of 1-he Electoral Act bath in th e unreported case of Lwiimbo v Mutukwa7 and the celebrated case of Mlewa2 . In the case of Lwiimbo v Mutukwa7 , the court dealt with the applicability of section 93 (2) (a). In that case the High Court found that the successful candidate had not committed any illegal activity or malpractice but the court nullified the elections under section 93 (2) (a). The consideration in this case was whether or not the illegal actions were so wide spread that they prevented the majority of voters from voting for a candidate of their choice. The Court held that under Section 93 (2)(a), even though the candidate may not have been personally involved in any malpractice and even though his agents may not have been involved in any illegal activities, provided the proved activities prevented the majority of voters from casting their votes to elect a person of their choice during the elections, the election results had to be nullified. In the case of Mlewa2 , this court extensively dealt with the distinction between the applicability of section 93 (2)(a) and Section 93 (2)(c). The current section 93 (2) of Act No. 12 of 2006 is a replica of Section 18 (2) of the amended Electoral Act 2 of 1991. This Court clearly pronounced the principle that ground a, b, c and d of sub section (2) of section 93 (Section J 8) stands independently af each other Praaf af one of these grounds is sufficient to nullify an election result. This Court pronounced that:- "1. Subsecti.on 2 of secti.on 18 in our view sets out four clear grounds upon which an election of a candidate as a member of the National Assembly shall be held void once each is independently proven to the satisfaction of the High Court. Proof of one of the grounds is enough to nullify any election. We are satisfied that subsection (2) of Section 18 sets out four clear independent and separate grounds which if any of them is proven to satisfaction of the High Court then the Election of a candidate as a Member of the National Assembly shall be nullified ... " It also pronounced that:- the question of personal knowledge is quiet irrelevant and inapplicable under paragraph (a) where it does not matter who the wrongdoer is and the scheme of the law appears designed to protect the electorate and the system itself by provi.ding for nullification whenever there is wrongdoing which the Court feels satisfied, perhaps because of the scale or type of wrongdoing, has adversely affected and probably affected the election. In other words the conduct complained of has to affect the election. In our view, in the Mlewa case, the Court looking at the pleadings, had to determine whether any of the four(4) paragraphs under sub section 2 of section 93 was established to the required standard. The lower court having considered the evidence held that the illegal activities or malpractices were so widely spread that they prevented the majority of the voters to vote for their preferred candidates. The Court was bound to look at the evidence and the pleadings to determine whether (a) or (b) or (c) or (d) of sub section 2 of section 93 of the Electoral Act was proved to the required standard. Counsel for the Respondent has cited the case of Mubika Mubika6 as the direction of law on declaring the end result in a Parliamentary Election nullified. We have looked at the unreported case of Mubika Mubika6 . We have taken note of the pleadings in that case. The court had to decide whether the evidence adduced established the allegation under sub section 2 (a) of section 93 of Cap 13 of the Electoral Act or under sub section 2 (c) of section 93. The court held that for the elections to be nullified even if the evidence established malpractices under Section 93 (2) (c), there had to be proof in all cases that the majority voters were prevented from voting for the candidate of their choice. It has been argued that the Mubika Mubika.6 case has established the cnrreut Jaw that the _paragraphs af section 93 (2) are not independent of each other. We do not accept that argument because the provisions of Section 93 (2) are very clear, that each paragraph of section 93 (2) stands independently of each other. It says:- (2) The election of a candidate as a member of the National Assembly shall be void on any of the following grounds which is proved to the satisfaction of the High Court upon the trial of an election petition. (Our own emphasis) a. that by reason of any corrupt practice or illegal practice committed in connection with the election or by reason of other misconduct, the majority of voters in a constituency were or may have been prevented from electing the candidate in that constituency whom they preferred; b. subject to the provisions of subsection (4), that there has been a non-compliance with the provisions of this Act relating to the conduct of elections, and it appears to the High Court that the election was not conducted in accordance with the principles laid down in such provision and that such non-compliance affected the result of the election; c. that any corrupt practice or illegal practice was eoounitted in eo1u1eetion wit_h the election by o.r with the knowledge and consent or approval of the candidate or of that candidate's election agent or polling agent; or d. that the candidate was at the time of the election a person not qualified or a person disqualified for election." In our view, the provision) of Section 93 (2) are very clear. Each paragraph of sub-section 2 of section 93 spells out a different malpractice. It is a separate ground, on which an election of a candidate, as a Member of Parliament, can be nullified. The Legislators put in the words we have emphasized deliberately to bring out a point that each paragraph in sub section 2 of section 93 discusses a particular mischief which has to be rooted out or curtailed in our Election system. Each paragraph of sub section (2) of section 93 spells out a different malpractice. In our view, the Mlewa case is still good law. In contrast, whereas under section 93 (2) (a) it is required to prove that the malpractice or the illegal act was so spread or was of a certain type which affected the results of the elections, under section 93 (2) (c), the candidate is penalized for either being directly involved in the illegal activities or did consent or did acquiesce to the illegal activities or that _ h is agents "vVere involved in the. illegal ~activities or m alpraetiec-=-:d:uring the election. Under paragraph (a) of Section 93 (2) personal knowledge of the candidate of the malpractice or illegal activity is irrelevant and inapplicable. It does not matter who the wrong doer was because the scheme of the law is designed to protect the electorate. Under section 93 (2)(a), any malpractice or illegal activities have to affect the results of the elections. In the Mlewa case, the court addressed itself to the pleadings and the evidence before it. The Petitioner in that election case sought the court's intervention to have election nullified as the majority of voters were prevented from voting for a candidate of his choice, because of the malpractice or illegal activities which were widely spread. The court further held that for malpractice activities under section 93 (2) (c), there is no need to establish that the majority were prevented from voting for their choice. In the petition before us, the court made the following findings that (i) the 1st Lady came to Kapiri-Mposhi during the campaign to drum up support for MMD candidates including the 1st Respondent. (ii) That the 1st Respondent was present at the material place where the 1st Lady was distributing money to groups of women. (iii) That KIO million was distributed to women. (iv) That 1st Respondent did not distance himself from this activity. (v) That these women were urged to vote for MMD candidates. The court also made the following findings that a Lady by the name of Elizabeth Nachinsambwe distributed maize to voters in the run up to elections. With these findings, the two allegations were proved to the required standard as per Mabenga case. The Court held that these were breaches and that these were Election offences in breach of section 93 (2)(c) of the Electoral Act. So the Court was bound to declare the election of the 1st Respondent as Member of Parliament nullified. So the lower court wrongly referred to the provisions of section 93 (2)(a). We are therefore, satisfied that the Learned Trial Judge misdirected himself in mixing the requirements in these two sub-sections (a & c) of section 93(2). It was a misdirection for him to now relate to the requirements in section (2)(a) of section 93 of the Election Act after proof of the allegations under section 93 (2)(c). It was not therefore, necessary to establish that the majority of voters were prevented from voting for a candidate of their choice. We hold that the Learned Trial Judge misconstrued section 93 (2) . The legislators in crafting section 93 (2) set out four clear categories of malpractices or illegal activities which if each is proved to the required standard in the Court, this would result in the elections being nullified. With these findings, \V-C find mcritin_the_appc.al;_we::decla:ie the election of the 1st Respondent nullified. We direct fresh elections to be held. We order no costs. Each party is to bear its own costs. lt()-1, Lorn be P. Chibesakunda ACTING CHIEF JUSTICE ~L- , F. Mumba ACTING DEPUTY CHIEF JUSTICE H. Chibomba SUPREME COURT JUDGE .rr~. cft¾~iri SUPREME COURT JUDGE 36