Kalumiana v Lungwangwa and Anor (HP/EP 17 of 2006) [2007] ZMHC 6 (30 March 2007)

,d KALUMIANA Vs LUNGWANGWA GEoFFRFV ^. SSWOF^A LUN6Wa"g''m'"wipe electoral HlGHCOURT 8EfORE HON. MR‘JUSTICE PH।LIP MUSONDA 2006/HP/EPOO17 flynote brikerv and m.iprdcto-credMtv of mistresses absence plrty age„B polli„e effect thereof. Headnote The petitioner contested the Nalikwanda constituency elections during the 2006 polls andlost to the Respondents. The petitioner alleged that the polls were fraught with bribery and his parry agents were denied access to most polling stations. Held: t the testimony of witness such as police officers and monitors during an election is more credible than that of party official and election officers. it is the duty of a candidate to deploy party agents at polling stations. The absence of agents at Polling stations does not invalidate the election results. IN THE MATTER OF: AN ELECTION PETITION BYSIMASIKU KALUMIANA INTHE MATTER OF: ARTICLE 71 OF THE CONSTITION OF ZAMBIA INThe matter of: AN APPLICANT UNDER ELECTORALACT NO. 12 OF2006 $ePTERMBE% 2007. THENAU“AN“~^^ Forthe Petitioner: Mr. S. Sikota of Central Chambers for the 1st Respondent: Mr. S. Malama SC. Of Jacques & Partners for the 2nd Respondent: Mr. S. Nkonde Solicitor General with him Mr. E. Kamwi -In House Counsel Electoral Commission Cases Referred to: (1) Simasiku Namakando v Ireen Imbwae 2O06/HP/EP/017 (2) Subramanian v DPP (1956)1 WIR 965 (3j ~J^niftef Mwaba v Frederick Jacob Titus Chiiuba SCZ Judgement No.14 of 1998 (4) (5) Mateo B Mwaba v Anthony Kunda Kasolo Appeal No. 27 of 2003 Michael Mabenga v Sikota Wina SCZ No. 15 of 2003 M James Chibisa Nyirongo v Mukhondo Lungu 2006/HP/EP/020 P) Anderson Mazoka v Levy Patrick Mwanawasa and another SCZ/EP/01/02/03/200 Legislation Referred to: Electoral Act No. 12 of 2006 Constitution of Zambia Act No.l of 1991 Works Referred to: staffan I Lindberg, Demoralisation by Elections? Th n 111 pr prePared for the international conference, Depart™! °f EleCtOral Authoritarianism ^pril 2004. n ° P°lltlcal Science Lund Sweden Mexico judgment the Petition by Simasiku Kalumlana puriu„t ,h „ alleged that: e Electoral Act No. 12 of 2006. The petition The petition stated that the lst Respondent 0„e LUNGWAFIGWA GEOFFREY LUNGWANGWA ha^the election campaign in some pads of the constituency b, himselthis semants or agents ofeud inducements or bribes for people to vote for him. . The Petition stated that the lst Respondent and his servants and agents were writing down names of voters promising them that they would be given relief maize upon voting for the lst Respondent and the h/uviD dtpiaces such as LUKALANYAand others. T The Petition stated that.be 2nd Petitioners election agents the necessary documents th Pptitioner. observe the whole election process and safeguard the interests o .* The Petition stated that the agents of commit acts of corruption and bribery at LUNGWANGWA on or about the 28th September 200 I immediately after the elections if ♦ r>f the 1st Respondent LUNGWANGWA GEOFFREY stations such as SUSA and others where they P^ the electorate voted for them. The Constated that the »«ee ef the 1st Respondent LUNGWANGWthe »Wf» did falsely state of the character of « ‘ by the Indian Government for distribution p of LIBUWO SAMAZUKA in the The Petition stated that the 1st Respondent LUNCumk petitioner of ha™g Stote„ „„ LUNGWANGWA Uh Centres. MENGO, NANJEKO and SIBONGO The Petition stated that on polling day an Electoral nm loZitold people in the line to vote "on the watch." r V the Lukweta pol,in8station and in n The Petition stated that the 2nd Resoondpnt u 8' for election agents to the 1st Respondent servants or agents such as one Mr. MUNDIA KAPANDA at . t , ,D , respondent through its servants or agents gave signed forms Nakanya polling station who then started to offer them for sale to the Petitioners election agents 9, The Petition stated that the 2nd Respondent through its servants or agents were marking ballot papers for even voters who did not request or need them to do so in favour of the 1st Respondent at several polling stations such as NAMIANJI, SITUNGA, NALICHINJI, LUKALANYA, NALIKWANDA, NANJEKO and NAKATO amongst others. 10. The Petition stated that the 2nd Respondent through its servants or agents allowed even the Movement for Multi-party Democracy polling agent by the name of a Mr. MUNDIA KAPANDA at NALIKWANDA BASIC SCHOOL to mark ballots for voters who did not request or need that he does so. U. The Petition stated that the 1st Respondent LUNGWANGWA'S agent on or about the 28th September 2006 did commit several acts of corruption and bribery at polling stations sue as others. „ 2' The Petition stated that the 1st Respond aS*nts on or about 28th September 2006 did campa.gn at and within „ Hont IUNGWANGWA GEOFFERY LUNGWANGWA’S t,ndwithin the vicinity of various polling Nations as at NANSANGE SCHOOL. The Petition stated that some of his agents were'"j^cedt0 sign the Results Announcement • • • 11 refused entry into the polling station andatthe end of the voting they were asked to come i °rms with a threat of arrest if they refused to sign. petition stated that one FRANK KALENGa ’ enable people to vote. The ^dt° 'SSUed Voters Certificates which were not 15. The Petition stated that the verification pectoral Act and Regulations, in Mongu District exercise of ballot papers (votes) in accordance the was haphazard and started on a rather bad note. The Petition stated that the exercise was su for the entire constituency up to the 7th of Octoberasn^r °n the 5th °f °Ctober 2006' Radio Liseli, however, the Nalikwanda Returning Officer AlfL r t0 a" stakeholders on finally started on 16th October 2006. ' 1 e e e, blocked the exercise, which 17. The Petition stated that the council officials insisted on a half baked verification such as books received from the ECZ polling station by polling station and also not giving us voters registers and rolls. The exercise was resumed today 19th October 2006 but Mr. Litebele for no proper reason decided to move it to 20th October 2006. 18. The Petition stated that many ballot books which were not indicated to have been issued to the various polling stations were the ones which were used without any explanation as to why and where they came from. The Petition stated that the following matter made the verification exercise unattainable and Meaningless. la) Election Commission ofZambia Delivery Notes o ad QUt or shOwn. „ infirm what was collected from Lusaka by ‘he Mongu Municipal Council Official but many of these we (bl . and every Polling Station were not prepared or Mongu Municipal Council Delivery Notes t aignedfor. t Bo°ks Account records to show the used ballots books (used ballots), unused ballots d Hots) the spoiled ballots were not available in many cases. The Voters Registers, both marked and un-marked were not available in all cases. The Voters Rolls, both marked and un-marked were not available in al! cases. The used and unused ballot books were not available in some cases. (g) The used ballot put in sealed envelopes were not shown to the Petitioner or his agents and the Returning Officer refused to just show those envelopes. (h) The 'results Announcement forms' were not available in some cases. (i) The sealed envelopes containing used ballots papers (votes cast) for each and every candidate were not available in many cases. Most ballot boxes had been tampered with and came without seals. The 'Results Announcement Forms' in some cases did not have signatures of Presiding Officers (k) and at times witnesses. Some 'Results Announcement Forms' had signatures that were forged. 20. The Petition stated that the stakeho.ders Constituencies participated in the verification exercise U case jnv0|ving the Town Clerk Mr. had taken place before the start of the process sue SAMUTUMWA MWAPELA and Acting Director of A miniswh0 were caught red-handed, KAL|Hqnga who on the night of 2nd October admitted that they had instructed four counci j 16:45 hours on 2nd October 2006, with four opened ballot ho • the said boxes. toOPe boxes in room 11 at the Civic Centre * .,» brought to the attention of the Police Oeputv 22 The Petition stated that the verification was incomplete as the returning officers wished to give as little information as poss!ble, when the following should have been availed for data at all polling stations from SEALED Ballot boxes. By reason of the above, the Petitioner prays:- (a) That it may be determined and declared that the Respondent was "not duly" elected as a member of parliament for the NALIKWANDA Constituency (b) That it may be determined and declared that the Electoral Commission wilfully neglected its Statutory Duty to superintend the election process thereby legitimizing a fraudulent exercise favouring the said LUNGWANGWA GEOFFERY LUNGWANGWA (C) That it may be determined and declared that the electoral process was not free and fair and that the election was rigged and therefore null and void. / W) That it may be determined that the corrupt practices and electoral regulations breaches so affected the election result that the ought to be annulled. W That h C ordered that = ^PV. Mot papers. » That th. P^fUoper h»V have such furtheror other r« « ™ be fust. Thatthe Respondent be Conder lnthc costs of t/iHence as laid by the Petitioner wss thst hp rniaimnri * ^of P— He alleged thatthe Respondent ^various bribes. He received m Mutondo ward from Gershom Sibanje who received a pair of shoes jnd agreen jacket from Respon ln Lukalanga he was to|d telling people and writing their names and promised to give them maize after voting. He received a ^rt that his agents were not accredited as pleaded in paragraph 10. The agent of the Respondent ^ly stated that he had misused rice as pleaded in paragraph 12 donated by the Indian government and that he had stolen money for Namengo, Nanjeko and Sibongo health centre as pleaded in paragraph 13. The polling agent accreditation forms were being sold by Mundia Kapanda an MMD agent who was also allowed by the second Respondent to mark ballot papers as pleaded in paragraph 17. At Namwinji around 1600 hours on 28th September, 2006 he entered the classroom where the election were being conducted, he saw the presiding officer leading an elderly man near to the polling booth, and telling him who to vote for, he reported to the police officer who walked to the presiding officer. He further received a report that the Respondent's agents were campaigning within the vicinity of the polling stafioo-and that voting continued up to 29th September, 2005 as pleaded in paragraph 19.! Sis agents were called in to witness the counting under duress as pleaded in paragraph 20. He discovered during verification that some certificates were not stamped. There were about 10 certificates from various places and he brought this to the District Conflict Management Committee, which has not responded to date as pleaded in paragraph 21. He was not given the necessary documents at verification by a Mr. Kalenga such as the voters registers, voters rolls, distribution list. There were cases of missing ballot form and there were different serial numbers between the ballot books used and those found in the ballot boxes as opposed to what was written on the ballot account form pleaded in paragraph 25. Some ballot account forms had several cancellations. He also discovered foat the results that were announced were different from the figures he was given at the council. There were also variances between presidential, parliamentary and Local Government i.e. at one polling Ration the presidential had 80 votes less than the parliamentary instead of having the same number of v°ters. For the constituency the difference was 1,200 votes. «« P-„S supposed J™, .p .he police. However, .he major,.,.<th. ™ except ftr Jess than 10. for some stations «ke Lot.ian,. the hahot a™"* ft™, were ~—= pr^s .s tPatrickSllambwe Sillbeta a peasant fa™, who ,est|ted tta, h, was ndent who eventually arrived in the companv of Miimhnna r ESp°nd ...... c!i.chQh„ . . tre3SUrer and Sillo Sileshebo who is currently a councillor at Nanjeko Primary School. There was also P V ' Mumbuna Campaign Manager, Libuwo MMD char,esSitanga. Mumbuna opened the meeting and said they had gone there to introduce Respondent, ^buna said people should not vote for those who are not going to work for them, he went on that people of Nanjeko were supposed to have a clinic but petitioner had misused the money, this was in presence of Respondent who was laughing and nodding, Mumbuna called petitioner a thief. Libuwo also accused petitioner of having the money for the road in Nalikwanda and further petitioners assertion that he had taken the solar energy to the clinic. Later, the petitioner went to Nanjeko and addressed a similar crowd and refuted what Respondents campaign team had said and the witness discarded Respondents campaign team story. Pw3 was Muselife Kalaluka, who is unemployed who was United Liberal Party agent at Nanjeko polling station. He testified that he arrived at the polling station at 0530 hours and voting started at 0600 hours. During voting ho saw a lady standing at table 4 where the bailor papers were being marked. He said he was in MMD with Muselife Kalaluka. Pw4 Geoffrey Lyapwaya a peasant farmer who testified that he went to vote at Nanjeko school. While in the voting booth a lady went to him, got a ballot paper from him and she was marking for everybody and she told him if he talked the police officer will arrest him. He heard from others that she also marked for them. He did not know what party she marked on. The lady did not ask him whom he was going to vote for. M was Muwelo Mwanga a peasant farmer who testified that on 22nd September 2006 he went to Mongu for a workshop to be sensitized as an agent. While there he raised the issue of documents to him to be an agent. He was told the documents will be sent to the polling stations. Onvoting d he left home at 0500 hours and arrived at the polling station at 0530' “ hours. He was not allowed to enter the polling station as he did not have letters result he failed to perform his duty as a polling agent. 5jkute Aggrey Lyambai a peasant farmer who said on r Xation while there he saw a woman who had attend^ ** Went t0 Vote at Naniek° tpr justas Pw5 did- He also sa'd the Electoral Comm' • W°rkSh°P In Mongu on 22nd C"*®b= at the p°"ins sm™. waX0™ ST" pr°n’ised tl,em woman wearing a foundation for DemocMIo rroce T" iehe ^rs for some people. When he heard that hQ ; Lubioda hat was after X K cess 'F0DEP> T-Shirt was marking ^rmkw3 LUDindd/ uidi was aTier luuu noun Mo c-airj "g° nnt a man when it wa. I He S3ld he was sorry to mislead the court that the njtor was not a man wnen it was actually a lady. p^was Mwenda Kashima a student who testified that on 24th September 2006 at 1400 hours Respondent addressed a meeting at Nalichinji at which meeting he was introduced by Mumbuna. Mumbuna said Respondent was going to brig development not petitioner who was old and a thief. These allegations were confirmed by the petitioner. When the witness asked Respondent whether he had gone there to tell them about development or to discuss the petitioner. Respondent said he was campaigning and Petitioner also says other things when he goes campaigning. Witness stated that he voted for a candidate of his own choice and his mother was United Liberal Party in cross examination. PwlO was Mute Mwawandiwa a peasant farmer. He recalled that on 27th September, 2006 there were three Movement for Multi-party Democracy men Mwendabai Mushe^Bornwell Imakando and Chris Mwendabai who asked people to submittheir National Registration Card numbers and voters cards and they said that after voting the people will be given some maize and those that did not vote for the Movement for Multi-party Democracy will be discovered as the pictures were on the voters cards. He observed that the presiding officer was voting for the people and he complained, but he was told he had no right to complain. pwil gave similar evidence to that of PwlO. Pwl2 was Kwalombota Sililo a peasant farmer, who could not be admitted into the polling station as an agent as he had no credentials but he later signed some documents. Pwl3 was Namonda Matomola, a peasant farmer who testified that when she went to vote * Mbekesi polling station she was told that those that had already voted were coming out to ask those the queue if they can vote on their behalf he was shocked, but was not able to see what was Opening inside. He did not say to which party those who were canvassing for votes came from. was Mwimanuenwa Mate a peasant farmer who attended the Elec ora! Commission of Zambia Workshop at Mongu, but could not perform the duties of a polling agent because he had no credentials which documents h; was promised would be available at the polling stat.on m this case Silunga poil.ng ^tion. Inside the polling station he observed that those could not wnte were bemg told by E.ect.on B. the presiding officer and these ^<tosee /'Las haPP^'^ ^ha I F >he P«<«nE offer and heCou^ , Mubita Mukosiku who was supnosed tn hQ^it h'^otfind documents of accreditation at Nakanva but h ' |PartV P°lhng a§ent at Nakanya' ^^itation documents and he bought the documents for KWOo" ““‘"S acc^ . . .. . . 'or KWOO and he was allowed to enter. Mundia directing people who d.d not know how to write to the presiding officer to be assisted. The job of thepresiding officer was to cast votes for those brought by Mundia, but these people protested that ^wanted to be assisted by their relatives. There was no conversation between the presiding officer jndthe illiterate voters. pwl6 was Mubita Simwinji, a peasant farmer who went to vote at Sibala polling station accompanied by his son. He told the Election officials that he should be assisted by his son, but some people got his ballot paper and marked it and he was not shown where they marked. Pwl7 was Nalishebo Simwinji, a housewife who testified that she knew Pwl6 who was her relative, however, her further evidence was objected to as it was not pleaded by Mr. Malama, which objection wasWiaineti; ’ Pwl8 was Lititiya Sibotwe a peasant farmer who attended a workshop for polling agents in Mongu and waste be United Liberal party agent in Mongu and was to be United Liberal Party agent at Malefu Polling station. He however did not have credentials and^vas not allowed to perform his duties, despite having been told at Mongu that the documents were going to be delivered to the polling station by election officials. was Slnyanrhe Sl«»y. a peasant farmer. who was t. be poHIng «< »< -wet. pomn, station. when be reached the p.ife statien he asked a .fee .11 . i- °w him enter the polling station, t e po ice him there were no forms for United Liberal polling agent. Pw20 was Ackson Mwanambnyn members and him Pke P«M was no. ."0— . be P«» of who went to vote at Lukweta polling station, whi “uld show the sign of the clock without saying anything. < Kapenda as an MMD “ntwas nothing p.cuHa,. pw22 was Mubita Mubita a sales Representative with the Zambia State Insurance Corporation. according to him e as a a i wanda polling Station queue when he saw presiding officer Kwalela pull a lady by the name o episo Mwenda who he gave the ballot and they went together to the polling booth. Sepiso did not know how to write so the presiding officer marked the ballot papers while on the queue Mundia Kapenda also came and picked his mother and voted for her. He was able to see what was happening inside. In cross-examination he said there ULP agent and two monitors in the polling station. Pw23 was Nandila Mutoba a peasant farmer she stated that she went to Natonga Polling Station when she wanted to vote someone marked on the paper and she was given the paper to put in the ballot box she had come with her daughter Loveness but the presiding officer refused to be assisted by her daughter. Fw24 was ivluyunoa iviayaniuita unemployed, who went io vote at NariCniriji pOning station. When she said she did not know how to vote and she had the intention of calling someone to vote for her she was told the election officials were going to vote on his behalf. In cross-examination she agreed that there were polling agents and monitors in the polling station. Pw25 was Songolo Mulonda who attended an MMD meeting at Nakato ward addressed by the Respondent, Rwll who was Respondent's campaign manager, Libuwo Samazuka and a Sitanga. Rwll alleged petitioner was dull and he had squandered mon'ey, while Libuwo said petitioner was sick. Respondent informed the meeting that petitioner had stolen rice. 1 he witness tried to ask questions but he was told Respondent and his entourage could not take questions. In cross-examination the witness ^ted he did not change his mind about the petitioner meaning he was not influence by what was said at that meeting to vote for a candidate of his own choice. fc Masowe Moomba a peasant farmer. She testified that on 27<h September 2006 a Mr S'Hshebo asked her if she had gone to regi®. She went.. Itwi Ml* a-it Simataa writing down names of ladies imploring the iadies to vote on the dock and .hereafter they Mere going to 7Z" mai.e if theyotod for Respondent The witness d,d not register herself She go, "*£iX i "voter, card and National Registration Card who bad r.grst.md. Pa. was told she Z Ik “ XX'kc0’"8 “ S"”'°'S h“Sband'Up” hea™6,,", She ”"nd""1 Na"sb'b“'» X5 C 27 was Monda Nalibanga a house wife. She testified that at Nalichinji polling station she was given a e-marked paper to put in the ballot box. Pw28 was Malan Moonga a police chief inspector at Mongu ^testified that Petitioner report about 3 unsealed envelopes and a ballot box for Namusheshe polling station. pw29 was Teddy Chimipinde a businessman and United Liberal Party publicity secretary who was also petitioner's campaign manager. According to him in most stations their polling agents did not have forms to allow them to enter polling stations. On 27th September 2006 at about 1700 hours petitioner and him went to see the Town Clerk about the forms who referred them to the Returning officer, he however, gave them a form so that they can make photocopies. He was assured the forms could be delivered on polling day. However on the polling day most of the polling agents could not be allowed as they had no credentials. He went on that there were stories concerning their candidate that he was a thief. They were allegations thot he hod stolen rice and had misused money for Naukwarido nlaiHushakenuc roau. tncuurcrissue was misuse of money for Nameyo, Sibongo, Nasange and Nanjeko clinics. During verification the electoral officials were uncooperative. He also alluded to unsealed envelopes and a box containing ballot papers for Namusheshe polling stations in cross examination he said he did not know if petitioner satisfactorily explained herself. He never personally heard Respondent accusing the petitioner had misused money nor does he believe everything said at political rallies. That was the petitioner's case. The Respondent's case was opened by Lubinda Akotondolwa who was Rwl a teacher at Lundai. Basic School. He testified that he was Presiding officer at Mbekise polling station. There were four polling agents of whom two (2) belonged to United Liberal Party petitioner's party one (1) for an independent and one (1) for MMD. There were four observers two from FODEP and two from SACCORD. He saw no monitors mark ballot papers nor did United Liberal Party polling agents bringing that to his attention. He has been presiding officer since 1980 which for 27 years. RW2 Was Mubukwanu Mubukwanu Crispin a Deputy Head at Mabumbu Basic School who was presiding officer at Mutundo polling station and had four assistants. There was one police officer and one polling agent for Movement for Multi-party Democracy, there was one monitor from SACCORD. The other agents had no papers authorizing them to enter the polling station. ,,was MalengaTelebwe, a headmaster at Middle Basics , u K «station. He had three polling assistants. He knew Mat WaS officer * Situngu P°tially struggled to enter the polling station at the opening of th f°r Un'ted Ubera' Party' who in Lntialbut waS later admitted after he obtained <re»h,n were .literate«e,s he 6 P°llingstation but did not have “ ' who would then allow him to explain to tho lng agent and would announce to the Z«e <or he woo.d then mplained to him in the manner such voters were treated I ° V°terS’ N° P°lhn8 agentS t0 give credentials. ' 'n Cr°SS exami"a«°" ba ^d that it was RW4 was Wamunyuma Sianga unemployed. According to him he voted on 28th September 2006 at Nanjeko Basic School. He voted smoothly though he did not know how to write he voted on his own. He testified that he was briefed 4 days before the elections by the District Coordinator and the Secretary for Mongu District. He arrived at the polling station at 1000 hours and was admitted in the polling station. He observed the process from the time the voter entered until he left the polling station and he was there until 2030 hours when the announcement was made. ^Tiiertrwefeyix poiiing agents•twb~for peiiiioner^^ candidate. Those voters who were physically challenged and illiterate would stay in the booth for too long and the polling agents would ask the presiding officer to assist and if he was held up he could delegate to the polling assistant. The total number of those assisted could not surpass 15. He said he did not belong to any political party. The elections at Nanjeko were free and fair. In cross-examination he stated that there was a lady at table 4 from Electoral Commission of Zambia, but she never marked any ballot paper, she merely explained symbols and names so that the voter then can vote for a candidate of her/his choice. There was no marking of ballot papers on behalf of the voters nor did the polling agents c°rnplain. '«»»Edwin M.ehona . dermal officer with Ag.icPltura anti Cooperate "to «« IJ—’ o «ce "»*U. polling station and had presided ever slsala P«Hng «atien "te’ *•—g assistants, a po«c. office, and four poliing agents, J*** United Liberal Party and two from Movement for Multi-party •' ’0®. He did not know P«16 Mubulwa Simunji. There was ne ™d=n at the polling station. He “ W know Madiya Matobe Pw23. Pw23 came with a daughter <= P polling agents or a”16 With relatives and he allowed them to be helped. There wa he monitor. (n cross-examination Symb ls whjch be jg <B* for the in ' Wrelate, PIF Technician Ministry of Agriculture and Fisheries who was presiding officer at Nachinji polling station. ' or the physically incapacitated, 'BF' forthose blind assisted MaSinga a fisheries RW7 This was the secon '™e e ^as presi lng over a polling station have presided over Imwiko in Mongu constituency in 2 e a ree po mg assistants who came from Mongu, there was one MONITOR FROM SACCORD. T ere were ree po ling agents, two for the independent candidate and one from ULP. He assisted voters upon request. He did not take ballots papers from voters and mark them without them indicating to im who they wanted to vote for. There was no complaint. He did not know Mwala Simuyi. He was not asked by anybody that he wanted to be assisted by a relative. The atmosPhere during the counting was calm. rw8 was Kawalela Mulako a Senior Teacher at Nakanyama Basic School who was presiding officer at Nalikwanda polling station and this was his first time to be presiding officer. He was briefed before he took up his duties. He had eight polling assistants, one monitor for FODEP. -He knew-Mu.^ who. was notpresentwhen the voting started and was a polling agent for MMD. He knew Mubita Mukosiku Pwl5 who was a UIP agent. It was not true that Mundia Kapanda was getting voters from the queue and bring them to the witness so that he can mark for them nor did he witness Mundia Kapanda selling forms for Oath and Affirmation. He assisted illiterate voters and those who camo with relatives were assisted by relatives. He did not know Sepiso Mwenda. He knew Pw22 Mubita Mubita a UPL constituency chairperson. He did not forcibly grab a ba ot paper and mark it. He only helped voters who were illiterate when that was brought to his attent on y one u his polling assistants, hethen marked the ballot after asking the voter whom hewante to vo Rw9 was Shadrick Namushi Sakanga a Clinical officer, w , was Assistant Presiding officer at Nakanga 2001 he was in Sikongo wd has been dealing with elections since 197 w ' uency was won by United Party ° as presiding officer a. Namupanda * from united «•“» Development (UPNDI. The, were four >»« party (ULP), while the ate B "Went for MulU-party Democracy l«MD> *»»independent candidate. Mundia Kapanda w s n»»rememb=r mm go.ngouts usherlng in »ters. In te stated that Mundia Kapanda was seated among ^assisted voters were between 15 — 20, tOwasCrispin Shishanwe a DePut^ director for Administration k constituency. He testified that he attended the verifi J h° WaS als° Returning offi«r for < could not initially take off because of the violent e rf0" Part °f aS * Was for two -mbe demanded copies of the Registers Thpvnr-f”" uct of Petitioner's supporters Chimbinde Mukangu Luk^. S„ ‘ °" 21”” P ^in6 station all these were in Mbekise veff* ward- He could not continue with verification as he was committed. The marked registers could not be available to them as that could only be done by Electoral Commission of Zambia. Petitioner's supporters used abusive language like stupid, corrupt and that they were favouring MMD. Rwll was Christopher Makunyango Mumbuna a retired Headmaster. He testified that he has been a member of the MMD since its inception in 1991. In the last elections he was campaign manager for Respondent. He is currently an ordinary member. As campaign manager for the Respondent with three others, he made sure programs succeeded. The major thing was to talk about development in Nalikwanda constituency. They held meetings in all polling stations in Nalikwanda except for Silili, Sibonga dr.d Musalonga a threavof Kdravinasinlhetwu Siiiii and 5ibongo,~whiie a meeting in Musalonga coincided with arrival of the President. He never called petitioner a thief of money for health centers nor did he call him a thief for funds for Nalikwanda road. He did not accuse petitioner to have stolen rice nor did anyone in the campaign team call petitioner a thief. In cross-examination, he stated that he did not tell people that money was released but that it was approved. Nation background In Nalikwanda and how when he lef . hmthertraditionallyanda stand for parliamentary elections in Nalikwanda Constituency agams is c°usin in English. j r^tituency discussing government s Meetings were focused on the development of Nalikwan a jntegrjty. There was no finger .. grants. His campaign team was held by him to the hig es document contained the 'ntin8- They discussed the MMD's poverty reduction strategy construction of schools, clinics, roads rehabilitat; f. . They discussed the distribution of rice m • n°tbridgeswatersupplyandseveralotherP^ been done by the MMD Government ' m°SC|Ult0 nets'fertili2e^ and provision of money which had would have not allowed his campaign team to injure petitioner who is his brother because of his farnj|y values and he could not allow political relationships to kill the family. He could not accuse the titfoner of stealing the money over which he had no control whatsoever. Nothing happened to Pw9 P . en he wanted to ask a question. He had been availed information that Pw9 was not a student. He denied allegations that they had called petitioner a thief. In cross-examination he stated that Rwll was h-)S nephew and he is the nephew to petitioner as well. At the end of the petitioners and Respondents cases, it became apparent that it is a question of credibility. There is therefore need to put the credibility of witnesses in three categories. « witnesses who are party members of the Petitioners and Respondents parties. (ii) Witness engaged by the Electoral Commission of Zambia which is supposed to be neutral as a conductor of the_electoraI orocess. _____ __________ _ (iii) Monitors and police officers who unlike the Electoral Commission of Zambia are not party to these proceedings The whole petition turns out of the credibility of witnesses as you have most of petitioners witnesses giving evidence to support the allegations contained in the petition, while witnesses for the Respondent dispute those allegations. As I s^id in the petition of Simasiku Namakando and Ireen Imbwael, the witnesses have to be subjected to strict scrutiny of their integrities. Stained*06 ^et,t,Oner substantially hearsay as his supporters reported to him what is ^ere test,mon^ however it is admissible if the purpose was to establish that such statements time f 6^u^ramanian v DPP2 following. In cross-examination the petitioner stated that at the ^strib C l0n ^ere Was no ma,ze ^ey had just distributed the maize nor has any maize been The distribution is done by Nongovernmental Organisation engaged by the relief^ • 3nagement team and there are committees at ward and constituency level, the request for This 'S made through the ward councillor or Member of Parliament to the Vice Presidents Office. 6 Pr°Cess the distribution of the Indian donated rice. Pw2 testified that Mumbuna s Campaign Manager said at a meeting at Nanjeko that the people there were supposed to I pave a linic but petitioner had misused the money, but later petitioner rebutted the allegation. In cross stated that he discarded what was stated at the MMD rally and petitioner himself to the examina was addressed by the MMD and peop)e be|jeved hjm, meaning there voting was n0t influenced by those allegations. □W3 was the petitioner's party's branch chairman who a||e„ „ , . that voted at NanjeKo, gave similar evidencp c~ n .. Nonieko Pw4 pavp ho al,e6ed a lady marked all ballot papers for those r /□c tn hp a nollinp a?pnt that he was to be a polling agent, but did not oerfnrm hie ^4.- 1 4ont thp rredentiak wpfp nnt • Respondent the credentials were not given to him Pwi □ h^ 4.l K * •)Q^nrnmOntntiA ... Wh° ^nnFP monitor was mark h T that a FODEP mon tor was mark ng ballot papers for the voters. Pw9 testified as to allegations by Was Pw6, Pw7. Pw5's evidence was to the effect ™ h S dut,es due to the incompetence of the second ’ Hwl2 bad the same problem, but he was not sure PW14' Pwl5' Pwl8 and Pwl8 testified . Mumbuna that petitioner was of advanced age and a thief, while PwlO spoke about the inducement to vote for the Respondent by proving maize Pwll's evidence of an allegation that at Nachinji the presiding officer was marking for the voters Pw20 testified that the headmaster of the School was campaigning at the polling station Pw21 made similar allegations save that he said it was the presiding officer who voted for candidates. So was Pw22. M petitioners Campaign Ma„.8er tM„ed * T to them » t™. this w.^the supposed to be a star witness Ootw.s extremely LL Paying punucdi ineaire mat dramatised the Resoondpnfc ascribing petitioner's loss to that message and electoral irregularities. ... , respondent's campaign message with intention of ------ The entire evidence of the petitioner comes substantially for witnesses in the first category i.e. his party supporters. Who fall in the category of suspect witnesses. Rwl, 2,3,6,7,8 and 9 were a presiding office engaged by Electoral commission of Zambia, and they fall in the second category, who may be suspect witnesses as they are witnesses for the second Respondent, though they are not party supporters. Rw4 testified shevoted at Nanjeko on her own contradicting the petitioner's party's branch chairman who ^id all voters at Nanjeko had their ballot papers marked by a woman. Rw5 Mumbuwalu Raphael was a monitor engaged by FODEP at Nanjeko who characterised the voting there as free and fair. Wh° Was camPaten manager is nephew to both petitioner and Respondent. Rwl2 the Petitfo WaS cross"examined whether he had not chased Rwll his campaign manager and the to reconcile them in the night, which suggestion Respondent denied. I find the v/aSso.. IOn of such a proposition intriguing, because, if respondent was so cruel to Rwll and petitioner 3thjef n 9nd are both uncles, how then can Rwll in his capacity as campaign manager call petitioner |tW3S canvassed by Mr. Ma|ambaforthe tho$e things which he has done or which sP°ndent that the candidate was only answerable for consent. 'n ^'s re2ard it was submitted h therefore the allegation by rwiq Mat A nOt everyone in one's party is one's election agent and are d°ne by his election agent or with his ._k;ng down of names of voters thr f wanandiwa and Pw2 Monda regarding the threats and the * J ma,ze- threatening not to give those who did not vote for MMD any relief . v Z R“’°"d»< M no control and the case of TJZr wr p“p" “h as M“"a» ” “"-"“’i°'»“ JacobTitus Chiluba3 in which the Supreme Court said: "We note that no everyone is one s political party is one's election agent since, under Regulation 67 of the electoral (General) Regulation, an election agent has to be specifically appointed." While the pleading in terms of falsehoods fall within section 83(1)(2) and if proved can nullify an election as was held, bribery if proved can nullify an election pursuant to section 79, but there was no evidence -called In aid of that pleading. The aiiegarioh’that ballot papers were being marked for voters by monitors and electoral officials was too fantastic to be true. The petitioner stood In the same constituency as an opposition candidate some of these officers presided over the election which he won. I cannot believe that an election can be persuaded by such partiality by monitors, electoral officials in the eyes of polling agents, there would have been a riot. I am satisfied that the Electoral official complied with section 60 of electoral Act, when dealing with illiterate and physically challenged voters. There is no credible evidence adduced by the petitioner for court grant an order for scrutiny. The petitioner and the Respondent were not represented in all the polling stations by polling agents. However, that would not be said to be fatal and section 36(2) which is counched in these terms: . z The absence of an election or polling agent from a place were any electoral proceed is being conducted shall not invalidate those proceedings." had the benefit of reading Zikonda J's Judgmenton *hat d the failure by petitioner for not Vlr°ngo and Mukhondo Lungu4. My learned Judicial bro . prepared adequately in terms of agents tn .l ^^date to ensure that his polling agents have taken oathh^8 S3id'U is for the Electoral commission of Zambia know who the aP t reSpective commissioners. How C’n nning is fundamentally flawed as the Electoral Cnn, 860 * f°rmS and swear them<such J,Mateo B Mwah, „XXX'"’' zmiIH savthe commission did not fail to comniv u/ifk " supporters observed the anti e X “ r ™ aTh' petitioners not. Even if you exclude all he assisted voters in the constituency and regard such ballot papers as toral Process in the constituency as a'peversion'and vet spoilt, the Respondent would still have won. P p Last not least I observe the demeanour of the Respondent, he was consistent in dispelling the notion that his campaign strategy was anchored on the demonisation of the petitioner, despite being subject to intense and skilful cross-examination. As Lindberg observes in his paper Democratization by Elections' •"freeand fair etectiohs create a fundamental distinction between democratically acceptable and unacceptable processes. While there is no such thing as an entirely clean election due to human and technical errors, flaws must not alter or predetermine the outcome." In Anderson Mazoka & Others v Levy Patrick Mwanawasa and Another, it was held that: * follows that for the petitioner to succeed in the present petition, he must adduce evidence establishing the issues raised to a fairly high degree of convincing clarity in that proven d®f®cfs * e W«l «. WS were such that the majority of voters were prevented from . Mag " or urat the election was so flawed that the defects seriously sheeted the result w c no 'SmnaUy be sold to represent the true and free choice and free Will of the m,er«y of voters. «.he day, I. ,s whether cogent evidence has been * Syir n a Sectoral process were such that the electors were e f it)ence was called in ^ke. I think not, an example is though bribery was pleaded no mt. । am satisfied that the conduct of the ele r justice Philip Musonda, pursuant to . '°n Nalikwanda con$tit,,0„ DELIVERED IN OPEN COURT ON 30TH MARCH 2007 PPeal to the Supreme court granted. PHILIP MUSONDA HIGH COURT JUDGE