Kaira v Namugala and Anor (HP/EP 35 of 2002) [2002] ZMHC 4 (2 August 2002)

pg HIGH COURT FOR ZAMBIA rtg PRINCIPAL REGISTRY 2002/HP/EP/0035 LUSAKA INTH£ MATTER OF: aND IN THE MATTER OF : ' ‘ AUG 2002 the i^-eg,stry 18(c), 1 &(2n $7CAP. 13 SECTION HE LAWS OF ZAMBIA ‘ ELECTION FOR ISOKA DrSSn^ST TUENCY HELD 0N THE 27™ DECEMBER, 2001 aND IN THE. MATTER OF : AN ELECTION PETITION BY MIKE KAIRA BETWEEN: MIKE KAIRA and \ Petitioner . [O CATHERINE NAMUGALA lsl Respondent and ELECTORAL COMMISSION OF Z. AMBIA 2nd Respondent Before the Honourable Mr. Justice C. S. Mushabati in Open Court on the 2nd day of ] August, 2002 -> For the Petitioner: J. M. Mulwila (Dr) — Ituna Partners For the 1st Respondent: C. Hakasenke (Mr) ~ Hakasenke and Company Fortlie 2nd Respondent: M. Haimbe (Mr) — State Advocate J U D G MEN T Cases referred to: 1- Mlewav Wightman (1995/1997) Z. R. 171 Legislati01l referred to: Electoral Act, Cap. 13 - SS. 6(1) andl 8(2) This is an election petition challenging .k &tus me election ^^rofParliament for the Isoka East ConstitUenc ° ** reSp°nden' as a The basis of this petition are as contained in ' ' i (rference these paragraphs read as follows; paragraphs 7_ jo P F°r ease of Electoral (Ge„era|). Regul^^ the election was not fairlv u nne ^aniugala . Your Petitioner states that Chat^ • £ . Your Petitioner states that the Returning Officer „„ MMD. candidate and her agents. § “ , . 8 SCCfet bnefing t0 the 9 • Your Petitioner further states that his supporters were confused because the I Returning Officer told them that although Mpungu Ward was designated under Isoka West Constituency, the registered voters in that Ward would be voting for the Parliamentary and Presidential candidates under Isoka East Constituency but for the Councillor under Isoka West Constituency. 10 - Your Petitioner states that many voters were disenfranchised because voting | did not start until after 13.00 hours and closed at 17.00 hours. A lot of people who had been waiting from early in the morning either had left when voting started or were unable to vote by 17.00 hours at time was too short. The petitioner’s prayers are that: 1. A declaration prder be made that the elections in relation to Isoka East O Costituency be declared null and void and that a scrutiny of the ballot papers be made in such a manner as this court shall determine. 21 It may be determined and declared that the 1st respondent Catherine Namugala Was n°t duly elected, and 3' h may be determined and declared that new elections be held in relation to X ^soka East Parliamentary Constituency. An election of a Member of the nat> -J3- ,fthe grounds under Section 18 of the Electoral Act Cn „ r . ’ P- of the Laws of Zambia. . This Section reads: The election of a candidate m shall be void on any of the fol satisfaction of the KSh Coin °f the Nati°nal Assembly “ P™vod X < that is to say - p n the tnal of an election petition, ‘— (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 I may have been prevented from electing the candidate in that constituency whom they preferred; or (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 provisions and that such non- compliancc affected the result of the election; (c) that any corrupt or illegal practice was committed in connection with the election by or with the knowledge oC Cl and consent or approval of the candidate or of his election agent or of his polling agents; (d) that the candidate was at the time of his election a person not qualified or a person 'disqualified for election. Looking at the grounds of this petition I am convinced that the provision of Q. < Section 18 of the Electoral Act, Cap. 13 of the Laws of Zambia (hereinafter referred to as under which this petition is based is 18(2)(b). The petitioner’s case was in ^minary, alleging that there was non-compliaricc in this case with the provisions of the >.» • • * Section 18(2)(b) of the Act. - J4- It is therefore incumbent upon the petitioner to prove his r i r piuve nis case on a balance of robabilities by proving the allegations he is relying upon. The summary of the petitioner’s case was that the petitioner Mike Kaira was a parliamentary candidate in the last year’s parliamentary elections on the ticket of the United National Independence Party (UNIP). He is challenging the respondent’s election js a member of parliament for the Isoka East Constituency because of the irregular manner in which the elections were conducted. The returning officer had promised to call for a meeting at which he was going to brief all polling agents but this was not done except that one such meeting was organized for the M. M. D. candidate and her polling agents with the collaboration of some N. G. Os such as FODEP (Forum for Democratic j Process) and assisted by the Office of the President. The petitioner came to know of the said meeting by chance when he went to check on rentals from the tenant of his father’s house. P. W.3 Wilton Andrew Munthali confirmed that there was a briefing meeting for polling agents at Muyombe Secondary School. He too said he only became aware of the meeting upon going to the school for some other business. He found many people had ( (T gathered there .and so he joined in the meeting. P. W.3 went on to say U. N. I. P. was not z invited to that meeting. On the election day P. W.2 Ruth Nambobe with others visited some polling stations in the Isoka East Parliamentary Constituency. Polling was delayed ln a number of polling stations. When they visited Musanta Polling Station at 09.00 hours the election materials were just being delivered. At Kalyamani Polling Station Q P°llin8 had not begun by 12.00 hours. They then went to Muyombe where they arrived s|)MThey waited a. Muyomte polling - J5 - ^•tMV””1” '"d“i “ 17'00 hours- A» "» people present had voted. He other major bone of contention was on Mpn„B„ Ward which is comprised of ^polling districts. The six polling stations are Nzoche, Kanyala, Kasoba, jlwenimpangala, Chuba and Nachisitu. This ward is designated as one of the wards under ( Isoka West Parliamentary Constituency No. 86. This is as per documents No. 3 and No. 5 in the second respondent s bundle of documents, Ihesc documents are Registered Voters Per Polling District 2001 and List of Polling Districts, Wards, Constituencies, District And Provinces respectively. These documents were issued by the Electoral Commission of Zambia. The above districts are reflected on page 85 of 150 in document ) No. 3 and at page 80 of 141 in document No. 5. Depsite that these polling stations fell under Isoka West parliamentary Constituency candidates were told to campaign in the said Mpungu Ward. This, according to the petitioner, caused some confusion. The total * number of voters under Mpungu Ward was 1,845 as per document No. 3 in the second r— respondent’s bundle of documents at page 85 of 150. Isoka East Parliamentary J Constituency and Isoka West Parliamentary Constituency are designated as 85 and 86 resPectively in documents No. 3 and 5 in the second respondent’s bundle of documents. is also the case with Exhibit R. W.3. However, document No. 1 in the same bundle documents shows that Isoka East Parliamcntrary Constituency is No. 86 and Isoka ^Parliamentary Contituency is No. 85. This document shows that four of the six ^2 Mlln® districts in Mpungu Ward are in Constituency No. 86. The petitioner however, the above numbering was wrong as they should have been the other way round. -J6- FoUIp<,n>nB “ the I»Ui"8 Pl»«d under feka East Padian,enter, sli„,«y. n»“ F"Fl^ Districts No. 603040 Kaseba. No. 603041 vfwenimpangala No. 603042 Chuba and No. 604043 Nachisitu. Polling Station No. [Vl’’ 6fl3o38 Incite and No. 603039 Kanyala were placed under Isoka West Parliamentary Constituency. The demarcations were as per document No. 1 a map showing polling districts and constituency boundaries (though the map itself had wrong numbering of the constituencies). The above is the summary of the evidence supporting the petitioner’s case on the alleged irregularities, Three witnesses were called on behalf of the 1st respondent and the gist of their | (J) evidence was to the effect that R. W.l Royd Munkondya, the'M. M. D. District Vice Chairman and at the same time the campaign manager for the 1st respondent established campaign camps manned by constituency officials all over the Isoka East Parliamentary Constituency. He denied knowledge of having officers from the Office of the President banding together with his party in the campaigns. Neither were his members told to go j and vote in the afternoon, but they were in fact told-to go and vote at 06.00 hours. Prior t0 ,he elections the Electoral Commission of Zambia organised a briefing for the '"testedparties at Muyombe though R. W.l did not attend that meeting himself, R. W.3 Robert Posa Mwenya the Returning Officer for the Isoka East Parliamentary °nstltuency stated that meetings,'where interested parties were briefed about the lectl°ns, were held at Kampumbu, Muyombe, Thendere and Mulekatembo. Invitations Actings were though some advertisement in form of document No. 6 in tire 1st - J7 - >swndle »f “■! went on to say he tha tom $PU '.j sijltons in Mpungu Ward belonged lo Isoka Eaa f„ of Becllons- So cam?a'Sns were done in the four polling districts. Nz°d” KW-3 con(in”ad “»>polling districts ^^aed under Isoka West but were voting i„ ls„ka East. elKlora(. told of this verbally durinsthe briefinSs- RAV.3 further said he received no complaints of any polling beginning late in his constituency. All people were allowed to vote. R. W.2 Clifford Sichilima, a member of the Prevention Against Malnutrition Committee (PAM) said his organization existed in Isoka even before the elections. This organisation worked for the up-lifting of the living standards of the people by distributing food stuffs to the needy. The organisation worked independently of the M. M. D. This is the brief summary of the 1st respondent's case. 1 received two written submissions one by the learned counsel for the petitioner and the other by the learned counsel for the 1st respondent. 1 shall deal with the issues raised therein in the course of this judgment. | I must on the out set state that a number of facts are not in dispute. The disputed facts are as follows: k That both the petitioner and the 1st respondent were candidates for the Isoka East Parliamentary Constituency during the elections held on 27 Decemb 2001. 21 That the 1st respondent was the declared winner in that poll. J‘ That Mpungu Ward comprises of six polling districts, four of which w -J8- “4 to belong >0 Isoka East for the of pudental Elections. These ate Kasoba. M«„impa„8ala, CIlubs and nachisitu. Nzoche and Kanyala were said io belong to Isoka West Constituency. The electorate voted according Io th. above arrangement. 4. That the said Mpungu Ward (inclusive of all polling districts) is however reflected under Constituency No. 86 - Isoka West. This is as per documents No. 3 and No. 5 in the second respondent’s bundle of documents and also as per exhibit R. W.3 produced by the 1st respondent’s third witness. 5. That there was no malpractice that was directly attributed to the 1st if ) O respondent. i 6. That at Kalyamani polling was delayed until 12.20 hours as per presiding officer’s report which is document No. 18 in the I51 respondent's bundle of documents. The question yet to be answered is on whether the petitioner has proved his case .1 a balance of probabilites as to warrant the nullification of the 1st respondent’s election as a member of parliament for the Isoka ^^Constituency. 1 shall first deal with the allegation under paragraph 8 of the petition. This reads: Your petitioner states that the Returning Officer gave secret briefing to the M. M. D. candidate and her agent. O 1 >»= read through the submissions by the counsel for the petitioner. The learned lever alluded to this allegation. However the learned counsel for the 1« - J9 - aW' was not proved and must be ^n' uld th„ „o witnesses from other political pmies were called w or 4is •lleS!llion' NeiU'“ did the PMWoner call any of his agents to prove that hii failure or that of his agent to attend such a meeting was as a result of the alleged surrounding the holding of that meeting. secrecy5 __ x I have read through the evidence on record. The evidence that was adduced by die petitioner was purely of general allegations. There was no proper proof that the yXD. candidate and her agents were favoured. Admittendly the Returning Officer did not write to the interested parties individually but that did not mean the meetings that were held were secretly convened. I agree that document No. 6 in the 1st respondent’s j bundle of documents proved that the meetings that were organized by the District Electoral Officer were in fact for Presiding Officers and Polling Assistants. Political parties were merely at liberty to attend. Surely anybody reading this document will agree that the meetings called by the electoral officer were not for the candidates and their agents but for electoral officials namely the Presiding Officers and Polling Assistants. • [ \ document, for case of reference, is couched in the following language: ISOKA DISTRICT COUNCIL CIVIC CENTRE P. O. BOX 440010 ISOKA O ^UCNOTICE £T CE ls HEREBY GIVEN that, in accordance with the. electoral (Gener 1) Offic ‘°ns’1991- Thc District Team will conduct Election briefing for Presiding er$ and Polling Assistants from 08.00 hours to 16.00 hours as follows.- VENUE - J10 - ,a/12/20°l ^2/2001 i/2001 ^12/20° • Kampumbu School Muyombe Secondary School Thendere/Mulekatembo School Mwenimpangala School Civic Centre — Council Chamber AH those who applied for the post above should check for their names at the Council police Board. AHPolitical Parties, NGO. Monitors and Church Leaders are free to attend. Smart Muwowo DISTRICT ELECTORAL OFFICER ISOKA DISTRICT COUNCIL l?"’ December, 2001 It is clear front the above that what I said in the previous paragraph is correct. Be as it may I am not satisfied that this allegation against the 1st respondent can be sustained because there is no cogent evidence proving that she conspired with the | electoral officers to hold briefing meetings with herself and her agents only. After all the filing of meetings was a responsibility of the electoral officers and not the 1st 5b Wpondenl. The Electoral Officer or Returning Officer’s failure to call for specific stings'at which the candidates and their agents were to be briefed on the conduct of tire edions did not affect the elections in any way. This ground fails, 1 now wish to delve into tlie issue raised in paragraph 10 of the petition before C011sidering paragraphs 7 and 9. The allegation is that many voters were disenfrachised beCaUse v9ting did not take place until 13.00 hours but closed at 17.00 hours and as a maily people were unable to vote. - Jll - It„s „ fast conceded chat polling at Kalyama„i did not start until l2.20 houts >" hiding Offloads report which is doconrsnt ]S in the lsl respondent’s bundle of documents. The evidence was adduced through p^2 to the effect that polls were delayed also at Musanta and Muyombe Polling Slations. I looked at the statistics of the votes cast vis-a-vis the official registered numbers of each of the three polling stations. The figures are as follows: ^teStation No. of Registered Voters Votes Cast 1. Muyombe 2. Kalyamani 3. Musanta 245 352 210 | ' It will be noted from the above that at Muyombe Polling Station only 88 voters did not cast their votes and Kalyamani and Musanta Polling Stations 82 and 54 voters respectively did not cast their votes. It will be noted that the above polling stations recorded more than 50% turn out. I looked at other polling stations on voter turn out. Let give a few examples: ^1^0308 - Mafinga ' 6°3048 - Chiyombo had 110 registered voters but 73 voters cast their votes. ^053 - Mabinda had 216 registered voters but 131 voters voted. •^^3ll_~ Thendere 603075 - Thendere had 574 registered voters and 437 voters cast their votes. Q ** ■ K»ey. had 239 registered voters out of which 195 votes were east. - J12 - figures have been picked at random using documents No. 7 - 16 in the first bundle of documents and I compared these figures against the total number ofvoler$as reflected in document No. 3 in the second respondent’s bundle of documents. la all cases it is clear that there were no 100% turn-out. There were no allegations that polls began late at those polling stations. So the general trend was that there was no 100% turn-out. I am sure looking at the figures at the disputed polling stations mentioned jyP. W.2 as having opened for poll late, I find that they compare favourably to other stations. 1 am sure the late opening of the stations did not really affect the turn-out of voters at Muyombe, Kalyamani and Musanta - the stations visited by P. W.2 and the only polling stations proved by evidence to have opened late. / I am not satisfied that the petitioner has proved that the late opening affected voter turn-out at those three polling stations. In any case the majority of voters cast their votes. There was not a single witness called to prove that hc/she failed to vote because the station opened late and closed earlier i.e. in that there were few hours of voting. The petitioner’s ground of challenging the poll as contained in paragraph 10 of hi: Petition also fails, ' I will now consider paragraphs 7 and 9 together for they are more or less inter- ^Utfid Th nese paragraphs read as follows: ' ‘ Your Petitioner states that Catherine Namugala was not duly ^cted as the dection was not fairly conducted and was done in violation of the Electoral General) Regulations 1991. 9 ’ ^ur Petitioner further states that his supporters were confused because die burning Officer told them that although Mpungu W ard was designate - J13 - under Isoka West Constituency the voting for the parliamentary and C<“to>' bo. .1.= Council u„de^2^ SkX?' voterS in that w, VYest Constituency. ,....« - ^Uon of b„ach of fc (G'”a015 &« *»< — orpoUing distticts. C Mpungu Ward which is designated under Isoka West Pari;. P west Parliamentary Constituency No. 86, » fact is admitted. Did lhis momaly Electoral (General) Regulations? The learned „ learned counsel for the petitioner argued that the .. provisions of Section 18(2)(b) of the Act have been breached, / Q This Section reads as follows: 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 — 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 provisions and that such non-compliance affected the result of the election. ' T11e learned counsel for the lsl respondent argued at length in paragraph two over i nil f Nation of Mpungu Ward under Isoka West Contituency. He argued that the ll°nertold the court in his own words that he was told to campaign in Mpungu Ward ^soheknew that some polling ^at four of and that he . dispute have belonged to Isoka t v TastCo^’-1^ . 7 for alongbrne evidenced -J14- NO. 1 •» 5 in ntS' bundle of ao«.mMs. d„nts °f P°" No. 1) and record of proceeding al the count document3 No. 2 to 5) for Isoka East for the poll (by-election) held on or about 7"' member, 2001. chuba’ Nachisitu and Kasoba were among the polling districts where spoils were held. He further argued that the petitioner failed to call any registered voler who was confused by the said arrangement. First and foremost let nie comment on the polls held in September, 2001 in which the petitioner participated and in fact won. The available documents do not categorically prove as shown in documents Nos. 3 and 5 in the second respondent’s bundle of documents that the disputed polling stations in Mpungu fell under Isoka West though the | poll was held in the Isoka East Constituency bye-election. In the present case it is clear that all the polling districts in Mpungu Ward are designated under Isoka West Constituency. The evidence varying this arrangement is in the main verbal except for the ®ap document No. 1 in the second respondent’s bundle of documents which map is also “spect in that the numbering of the constituencies is faulty. If the four polling stations J ' "“der contention were intended to be under Isoka East Constituency the relevant docWnts ought to have so reflected. As a general rule parole or extrinsic evidence is 1)01 a!1°wed to vary the contents of a written document as is the case here. I do not accept verbal evidence which tended to vary the contents of writen documents. The '•^ents were written by the second respondent and so they are estopped from denying * s stated therein. All the three documents namely docucmtns 3 and 5 in tire second bundle of documents and exhibit R. W.3 produced by the 1st respondent’s fitness show that all the polling stations in Mpungu Ward are under Isoka West parliamentary Constituency No. 86. This means all the voters in Mpungu Ward were registered voters for Isoka West Parliamentary Constituency and so the voters in the four polling station3 ought not to have voted under Isoka East Parliamentary Constituency poll. As correctly pointed out by the counsel for the petitioner in his submission I agree ( that the voters in the four polling districts in Mpungu Ward voted in a different • Constituency other than in which they were registered. Section 6 of the Act reads: Subject to the provisions of this section and of section seven, • every person who is registered in a register of voters for a . constituency shall be entitled to vote at a direct election held ' / in that constituency. I am therefore satisfied that the provisions of Section 18(2)(b) of the Act have been proved in that there was a breach in the conduct of the elections by the Electoral Commission of Zambia in that Section 6 of the Act was not complied with because voters registered under IsokaJWej&jClQft^ allowed to vote in the Isoka East ) Momentary Constituency at the poll held on 27th December, 2001. Whether this fact Was i^own or not known to the voters of the four polling districts is immaterial in that ^norance of the law can never be a defence. Ihe petitioner stated that he was disadvantaged in that he did not fully campaign ln Mpungu Ward because of the wrong information that showed that this ward including he polling districts therein fell under Isoka West Parliamentary Constituency. Admittedly the two contesting parties, namely the petitioner and 1st respondent, WUd as follows in the four polling stations of Kasoba, Mwenimpangala, Chuba and 'IaChlSltu (giving only totals): The petitioner got 240 votesjmd the lsl respondent - J16 - tjcei^at j.mtal of360 votes. Ifl were to disreuarH <- v 'I g rd these flSures from their totals or final << nf2528.and 3316 respectively the respondent would still have beaten the figures or ionerby 568 votes. The petitioner would have lost 240 votes from 2528 and the peuu glance w°uld have been 2j88, Tbe 1S' respondent would have lost 360 from 3316 and would have been 2936. The difference between 2936 (for the 1" respondent) and 2388 (for the petitioner) is 568. However, the cardinal point is that the petitioner may not have indeed campaigned fully in Mpungu Ward in that it was designated under Isoka West. This therefore, must have affected the out come or result of the elections in the whole of Isoka East Parliamentary Constituency. / The information that Mpungu Ward belonged to Isoka West Parliamentary Constituency rendered the elections to have been conducted in non-compliance with the provisions of Setion 18(2)(b) of the Act. The allegations under paragraphs 7 and 9 of the . Petition are indeed within the ambit of the above provisions of the law. I do not therefore, agree with the 1st respondent’s counsel’s submission that the allegations fell ( ^Section 18(2)(c) of the Act which relates to corrupt or illegal practices. This Shiori reads thus? 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 ~( that any corrupt practice or illegal practice was committed in connection with the election by or with the knowledge and consent or approval of the candidate or of his election agent or of his polling agents. t -J17- Canthe Is* respondent’s election as Member of Parliament for Isoka West Constituency be nullified on this ground? In answer to t^estion I must seCk refuge in the Supreme Court of Zambia decision in the case of Mlewa v Wightman The Court said: The four paragraphs in section 18(2) of the Electoral Act 2 of 1991 are independent and separate paragraphs and an election shall be held void if any of the paragraphs is proved to the satisfaction of the High Court Where it is proved that there is wrongdoing of a scale or type which had adversely affected an election, regardless of who the wrongdoer is and even if the candidates personally were not involved, the election I may be declared void in terms of section 18(2)(a). ' It is clear that despite the fact that the lsl respondent cannot be faulted in any way in the conduct of the elections in Isoka East parliamentary Constituency, the non- 1 Compliance with the law by the Electoral Commission of Zambia by allowing four of Mpungu Ward polling districts which are under Isoka West Parliamentary Constituency ( to vote in Isoka East Parliamentary Constituency renders the election null and void under Section 18(2)(b) of the Act. I am therefore, declaring that the respondent was not duly el^ed as a Member of Parliament for the Isoka East Constituency I tnust add here that it is imperative for the Electoral Commission of Zambia to tlie boundaries of the two constituencies namely Isoka East and Isoka West to Necessary petitions like this one. It would perhaps be better for the Commission e Or prepare separate documents, one showing the boundaries of the two nc^es and the other showing those of the wards. I am sure had different books or k ecn prepared for the said purposes the problem caused by the over-lapping of 1B boundaries would nnl have arisen i.e. as to which consliluency ihe four polling -J18- districts in Mpungu Ward belonged. Having annulled the election I must order a fresh poll to be held in Isoka East Parliamentary Constituency. As the Electoral Commission of Zambia, the second respondent, was to blame in this case 1 order that they will bear the costs for both the petitioner and the 1st respondent. In default of agreement they shall be taxed. DELIVERED IN OPEN COURT AT LUSAKA THIS 2nd DAY OF AUGUST, 2002