Levison Achitenji Mumba v Daka (Appeal 38 of 2003) [2003] ZMSC 152 (20 August 2003)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Constitutional Jurisdiction) Appeal No. 38 I 2003 SCZ / 8 / 2002 IN THE MATTER OF: SECTIONS 18, 20 &21 OF THE ELECTORAL ACT, CAP 13, OF THE LAWS OF ZAMBIA AND IN THE MATTER OF: PARLIAMENTARY ELECTIONS FOR THE MSANZALA CONSTITUENCY, PETAUKE, IN THE EASTERN PROVINCE OF THE REPUBLIC OF ZAMBIA HELD ON 27th DECMBER, 2001 AND IN THE MATTER OF: LEVISON ACHITENJI MUMBA Appellant AND PETER WILLIAM MAZYAMBE DAKA Respondent CORAM. SAKALA, C. J, LEWANIKA, DCJ, MAMBILIMA, CHITENGI AND SILOMBA, JJS. On the 30th day of April and 20th day of August, 2003 For the Appellant: Mr. Isaac Chali of Messrs Chali Chama and Company For the Respondent: Mr. Msoni of Messrs J. B. Sakala and Company. JUDGMENT SILOMBA, JS, delivered the judgment of the Court A. Legislation referred to: 1. Constitution of Zambia, Article 72 (1) and (2) 2. Electoral Act, Chapter 13, Section 18 (2) 3. Regulations 53 and 54 of Electoral (General) Regulations 4. Regulation 61, Electoral (Registration of Voters) Regulations J 2 5. Regulation 7(1) of Electoral (Conduct) Regulations, 1996 B. Cases referred to: 6. ZCCM Ltd Vs. Matale ( 1995 - 1997) ZR, 144 7. Akashambatwa M. Lewanika and Others Vs. Chiluba. SCZ Judgment No. 14 of 1998 (Selected). 8. Mlewa Vs. Wightman (1995 - 1997) ZR, 171 This appeal is presented by Mr. Levison Achitenji Mumba, the appellant. The appellant is appealing against the judgment of the learned trial judge dated the 23rd of August, 2002 nullifying his election as a member of the National Assembly for the Msanzala Constituency. At the trial of the petition the learned trial judge heard evidence from a total of 16 witnesses for the respondent and 8 witnesses for the appellant. The trial commenced on the 24th of April and closed on the 21st of June, 2002. On the totality of the evidence before him the learned trial judge found that the election in Msanzala Constituency were characterized by corrupt and illegal practices, violence, threats and intimidation. In terms of Section 18(2)(a) and (c) of the Electoral Act the learned trial judge found that the respondent had proved his case to the required standard and proceeded to pronounce that the appellant was not duly elected as a member of the National Assembly for the Msanzala constituency. Accordingly, the election was declared void, hence this appeal. In an election petition, which was filed at the Principal Registry and later transferred, via a court order, for trial at Ndola Mr. Peter William Mazyambe J 3 Daka, then petitioner and now the respondent in this appeal, stated, among other things, that he stood for election as a Member of Parliament for Msanzala Constituency on a Heritage Party ticket. He lost to the appellant who stood as a candidate on the Movement for Multi-party Democracy Party ticket. In his petition, the respondent stated that he was not happy with the final result of the election because there were corrupt and illegal practices committed in connection with the election, which resulted in the majority of the voters not voting or being prevented from voting for candidates of their own preference. The petitioner further stated that the corrupt and illegal practices were committed by or with the knowledge and consent or approval of the appellant or of his election agents and that there was non-compliance with several provisions of the Electoral Act whereby the result of the election was affected. He cited a number of corrupt and illegal practices, as well as, breaches of the Electoral Act, which we shall briefly refer to. The petitioner alleged that on polling day the appellant by himself and his agents openly and freely distributed food and other campaign materials within the radius prohibited by electoral regulations, that at Matipi polling station the counting of votes was done without the presence of the respondent’s agents because they were ordered to leave by the polling officer; that ballot boxes were ferried from polling centers by polling officers but without the respondent’s agents who were intimidated from accompanying the ballot boxes by the appellant’s agents. J 4 Further, that the appellant caused to be brought to Msanzala constituency MMD cadres from Lusaka to harass prospective voters and that some of the prospective voters were intimidated and assaulted prior to polling day; that the appellant used government resources to campaign and that in some cases threatened government employees with dismissal if they did not vote for him; that in most polling stations voting continued after 18.00 hours but was restricted to MMD cadres; that the appellant, through his agents, engaged in vote buying and thereby disenfranchised would be voters from voting on election day. In response to the petition, the appellant, as a respondent to the petition in the lower court, filed an answer in which he asserted, among other things, that he was duly nominated and elected as a Member of Parliament for Msanzala constituency; that he was not aware of and denied that he committed any corrupt and illegal practices as alleged in the petition. The appellant further stated in his answer that he was not aware of any corrupt or illegal practices, which he or his agents are said to have committed. Further, that he was not responsible for the conduct of the elections and as such he was not aware of the non-compliance with the provisions of the Electoral Act, which might have affected the results of the election. He then went on to categorically state that on the day of election he was some 50 km away from the polling stations and that by implication he could not have been within the radius of a polling station to freely and openly distribute food together with his agents. The answer also stated that the appellant had only one election agent who never engaged in any corrupt and illegal practices in connection with the election; J 5 that even if there were illegal or corrupt practices in the conduct of the election or any improper act or omission by any election officer, a fact which he denied, his election could not be declared void as it was conducted substantially in accordance with electoral rules so much so that any such act or omission did not at all affect the result of the election. The answer pointed out that the respondent came fourth in the election and that the petition, therefore, was but a far cry. There were two grounds of appeal that were argued before us. The arguments by counsel from both sides were supplemented by the heads of argument filed by the legal representatives. Under ground one, it is contended that the learned trial judge erred both in law and fact when he held that there were corrupt and illegal practices committed by the appellant or his election and polling agents to justify the nullification of the election. In support of this ground, Mr. Chali, counsel for the appellant, said that in coming to the conclusion that there were corrupt and illegal practices committed by the appellant or his election and polling agents the learned trial judge was influenced by five allegations. These were listed as (a) the alleged use of government transport by the appellant during the political campaigns, (b) the re­ opening of Mwanika clinic and the delivery thereto of medicines, an ambulance and staff, (c) the slaughtering of an animal for MMD party supporters at Mwanika, (d) the surrendering of voters cards to an MMD party official and the subsequent loss of the cards and (e) the employment of the “Kulima Tower Boys” in the campaign. J 6 According to Mr. Chali these allegations were never proved as having been committed by the appellant or his election and polling agents. On the allegation that the appellant had used government transport during campaigns counsel said that there was no finding to that effect even though the learned trial judge had outlined the allegation as contained in the respondent’s petition. He denied that the appellant had used government transport or facilities for campaign purposes or for carrying voters to polling stations. With regard to the re-opening of Mwanika clinic and delivery thereto of medicines, an ambulance and staff, it was contended that since this aspect of the allegation was never -pleaded in the petition, the learned trial judge should have never considered it or made a finding on it. Asked by the court whether he had raised any objection to the inclusion of the allegation at the trial of the petition, Mr. Chali said he did not. He, however, said that the law on petitions was that all issues to be tried must be pleaded and to that extent he urged us to disregard the conclusion of the learned trial judge. He submitted that contrary to the evidence, the rehabilitation of Mwanika clinic had been on going for sometime before the elections; that when all the logistics were in place the clinic was handed over to the appellant as the Minister of Health. Counsel told us that his client had never supplied drugs to the clinic and that the clinic was never closed to the public during or after the elections. Although it was the evidence of the respondent’s witness that the clinic was closed after the elections, the learned trial judge never made a finding to that effect, Mr Chali said J 7 On the allegation that an animal was slaughtered during polling day, Mr. Chali said that the evidence had not shown that the appellant provided the money to buy the animal or that the animal was bought by his agents. The allegation was not proved against the appellant and as far as counsel was concerned the evidence of Dyson Tembo (PW5) and Mudalenji Daka (PW6) was contradictory. On the collection of the voters’ cards by the appellant through his agents, Mr. Chali said that the evidence of Christina Phiri (DW7) was that she had surrendered her voter registration card to another Christina Phiri who was the MMD party chair lady of the women’s club in the Matonga area of the constituency. Consequently, it was submitted that the collection of the card by the chair lady of the women’s club was done without the knowledge and participation of the appellant. In fact it was canvassed by Mr. Chali that the decision to collect the card was to prevent the voter’s card from falling in the hands of the respondent who had been on a campaign to collect voters’ cards from MMD party members. On the alleged “importation” of Kulima Tower boys to Msanzala constituency counsel said that there was no evidence that the boys were brought by the appellant, that the only association the appellant had with the boys was their membership of the MMD. As far as counsel was concerned, all political parties held their campaign meetings unimpeded as confirmed by the police officer-in-charge (DW2) and the respondent himself who said in his evidence in the lower court that the Kulima Tower boys were not a factor in his campaigns. Apparently, the respondent held a total of 35 meetings without a hitch Mr Chali conceded that the evidence from J 8 the witnesses of the respondent painted a bad picture about the Kulima Tower boys as they were portrayed as being responsible for the harassment of the would- be voters He was, however, quick to point out that the evidence of Mudalenji Daka (PW6) and to some extent that of the respondent and Mary Banda (PW7) was hearsay. Mr. Chali also conceded in his oral submission that there was violence on nomination day between the Kulima Tower Boys and the Heritage Party members at Sichilima village; that after nomination day there was an incident of violence against the respondent who had to stand his ground and that after the elections there was no further violence attributable to the Kulima Tower Boys. In response to the appellant’s submission on ground one, counsel for the respondent, Mr. Msoni, asserted that the learned trial judge did not fall into error either in law or in fact when he nullified the election of the appellant as a member of the National Assembly for Msanzala constituency. He said that the learned trial judge cited what he considered to be illegal practices under the law and on that basis he held that the majority of voters did not vote for a candidate of their choice. Mr. Msoni said that the first aspect of the evidence the learned trial judge looked at was that relating to the use of government transport in ferrying voters to polling stations. After referring us to the evidence on record from witnesses drawn from various opposition parties, Mr. Msoni cited an instance when the appellant was seen driving the ambulance himself. Besides, the same ambulance with registration No. GRZ 468 was seen (as per the evidence at page 34 line 16) J 9 ferrying people for election campaign Further, we were also referred to the evidence where a vehicle belonging to the Ministry of Health was being actively used in the election campaign. In the light of the foregoing submission counsel stated that the learned trial judge was justified in relying on the relevant regulation in the Electoral Act that prohibits the use of government vehicles in political campaigns. On the opening up of Mwanika clinic and the delivery of an ambulance and drugs to the said clinic, Mr. Msoni submitted that during the trial of the petition counsel for the appellant never raised any objection to the evidence being led on the basis that the matter was not pleaded. Even if there was no direct pleading on Mwanika clinic, Mr. Msoni argued that the delivery there of an ambulance and drugs just a few days before the elections was related to use of government resources and, therefore, the appellant could not complain that he was ambushed. Mr. Msoni further told us that according to the evidence of PW5 at page 39, Vol. 2 of the record of appeal, the appellant addressed a meeting at Chanika clinic soon after drugs and an ambulance were delivered and openly asked people to vote for him. Mr. Msoni said that it was not in dispute that at the time of the elections the appellant was the Minister of Health; that from his conduct it could easily be inferred that he wanted to induce voters to vote for him. He told us that there was evidence that Mwanika clinic was a community based clinic which had been non operational for 5 years but which was re-activated on the day of voting in order to woo voters to vote for the Appellant. J 10 On the slaughtering of an animal by MMD party cadres, the respondent’s counsel submitted that there was evidence by PW5 at page 39 and PW6 at page 45, Vol. 2 of the record of appeal, which was not rebutted in cross examination and which showed that the animal was indeed slaughtered on election day. He further told us that there was evidence by the same witnesses that the animal was bought by the appellant himself and brought to Mwanika clinic; that on the day of voting the appellant ordered the animal to be slaughtered and meat there-from to be given to voters as they went to cast their votes. He submitted that in fact the voters who were brought in the ambulance were given the meat just before they joined the line to vote. Counsel agreed with the court that the act of giving meat to would be voters amounted to treating, which was an electoral offence. On the collection of the voters’ cards, counsel submitted that DW3, the appellant’s witness, who was also the chairlady of the appellant’s party, MMD in the Matonga area of the constituency, had admitted in her evidence that she collected and kept voter’s cards for some members of the women’s club. In reference to the evidence of the appellant that he had allowed MMD party officials holding designated posts to campaign for him and DW3, being a holder of a designated post, Mr. Msoni was of the view that the appellant was privy to what DW3 did On the presence of the Kulima Tower Boys in the constituency, the respondent s counsel said that there was overwhelming evidence of their presence in the constituency. He said that out of 18 witnesses called by the respondent 13 witnesses referred to these boys as being aware of them. We were referred to the J11 evidence of PW9, Scotch Banda, at page 59 of the second volume of the record of appeal who testified that the Kulima Tower boys were brought by the Appellant on nomination day. We were also referred to the evidence of the respondent at pages 9 and 25 of volume 2 of the record of appeal who testified that the Kulima ‘ Tower boys disrupted his meetings in addition to the other personal confrontations he had with them. Further, counsel referred us to the evidence of PW3 at page 33, volume 2, who reported the strong, rough and intimidating character of these MMD party cadres to the police and the evidence of PW6 at page 44 who confirmed the fear the people of the constituency were going through with the presence of the boys from Lusaka. Counsel said that the evidence of PW7, Mary Daka, at page 46, vol. 2 of the record of appeal, was that she personally met the boys at Kawezya village, the further evidence of PW8 was that he was a victim of assault occasioned on his person by the boys PW8 witnessed the disruption of the meeting of the Heritage party at Mwelwa village Based on the evidence Mr. Msoni’s submission was that these men, numbering about 18 or so, were involved in acts of violence, threats and intimidation to political parties or persons opposed to the Appellant and his party, the MMD. The first incident of violence was witnessed on nomination day (1st December, 2001) at Sichilima village when 5 persons were injured and the matter was reported to the police. According to counsel, the existence of these boys and the violence perpetrated by them was confirmed by DW2, the officer-in-charge of J 12 Petauke police station at page 370, vol. 3 of the record of appeal and at page 373 of the same volume. In considering this appeal we are mindful of the requirement of the law that regulates appeals in election petitions that have been determined by the High Court. The relevant law can be found in Article 72 of the Constitution of Zambia. Article 72 (1) (a) and (2) reads as follows: - 72. (1) The High Court shall have power to hear and determine any question whether - (a) Any person has been validly elected or nominated as a member of the National Assembly or the seat of any member has become vacant; (b) , (2) An appeal from the determination of the High Court under this Article shall lie to the Supreme Court: Provided that an appeal shall lie to the Supreme Court from any determination of the High Court on any question of law including the interpretation of this Constitution. We have seriously considered the evidence on record that was adduced in the court below in relation to ground one and we are of the firm view that this ground of appeal as amplified by the heads of argument and oral submissions does not raise issues of law for determination by this court. We have said in many of our decisions that as a final court, we do not hear testimony from witnesses live and that means that we cannot decide on the demeanor of those witnesses. We have said, going by our decision in Zambia Consolidated Copper Mines Limited Cs. Malale (6), that a finding of fact becomes a question of law when it is a finding not supported by the evidence or when it is one made on a view of facts which cannot be reasonably entertained. We are satisfied that there J 13 is overwhelming evidence on record to amply support the learned trial judge’s finding that there were corrupt and illegal practices committed by the appellant or by his election agents. For example, the evidence on the use of government transport by the Respondent is admitted even by the officer-in-charge of Petauke police station who was called by the Respondent as DW2. This evidence is in addition to the evidence of PW3 who saw the Appellant driving an ambulance (see 219, vol. 3 of the record of appeal); the evidence of PW4 who saw the Appellant in his Ministerial car, GRZ No. 746 BN during the period of political campaigns (see page 231, vol. 3 of the record of appeal) and the evidence of PW5 (page 236) who witnessed the ferrying of voters in the same ambulance the Appellant was seen driving. On the basis of the evidence before him the learned trial judge found that the Appellant was not entitled to use government vehicles under Regulation 7(1) of the Electoral (Conduct) Regulations, 1996 and termed such conduct an illegal practice. There is no way we can fault the learned trial judge in coming to such a conclusion. On the presence of the Kulima Tower Boys in the constituency the learned trial judge, at page 34 of the record of appeal, was convinced that there was overwhelming evidence that 18 or so men were brought to the constituency from Lusaka for the election campaign. The learned trial judge made a finding that these men were involved in various acts of violence, threats, intimidation and harassment of those who were perceived to belong to opposition political parties. J 14 On the boys’ relationship with the Appellant, the learned trial judge, after taking into account various aspects of the evidence before him, concluded, despite the denial by the appellant, that they were under the appellant’s instructions and directions. He again found that the appellant either knew or consented or approved whatever the boys were doing to help the appellant in his campaign. He came to this conclusion after considering and evaluating the evidence of several witnesses, such as, PW3, PW5, PW6, PW7 and PW8, to mention but a few, who testified to the acts of violence, threats and intimidation perpetuated by the Kulima Tower boys and to the appellant’s relationship with the boys. It is not permissible for any person, either directly or indirectly, to coerce, threaten or intimidate another person during an election campaign under the Electoral Regulations. Under Regulation 54(1) of the Electoral (General) Regulations a person is guilty of the offence of undue influence if he, directly or indirectly, makes use of or threatens to make use of any force, violence or restraint upon any person in order to compel that person to vote or to refrain from voting. On Mwanika clinic the learned trial judge observed that there was un rebutted evidence that the clinic that had remained closed for a very long time was suddenly stocked with staff, drugs and an ambulance a day or so before the elections on the 27th December, 2001. This was after taking into account the evidence of PW3 and PW5 (respectively at pages 217 and 236), which in our view was very categorical on the matter. The learned trial judge observed, and we cannot fault him for saying so, that the Appellant, as the Minister of Health at the J 15 time, knew or ought to have known about the delivery of the ambulance, drugs and staff to the clinic. Although the reopening of Mwanika clinic was not pleaded as such we have accepted the argument that there was no opposition to the introduction of evidence at trial in relation to the clinic. Most importantly, we are of the view that the delivery of drugs, an ambulance and staff to the clinic on the eve of an election fell within the use of government resources to enhance the appellant’s political campaign, a matter that was specifically pleaded at paragraph 16 of the petition. With regard to the slaughtering of an animal the learned trial judge was on firm ground when he said that there was cogent evidence that on the eve of an election a cow was slaughtered for MMD party supporters at Mwanika polling station; that the cow was bought by the appellant and the meat there from was shared among the people as they went on the queue to vote the following day. This evidence came from PW5 and PW6 (respectively at pages 235, 236 and 247) and although the learned trial judge found that the incident amounted to corrupt and illegal practice we think that the giving of meat to would be voters just before they voted was good evidence in relation to the offence of treating under Regulation 53 of the Electoral (General) Regulations. On the issue of collection of voters’ registration cards by DW3, a chairlady of the MMD party in the Matonga area, the learned trial judge found that this was true; that it was an electoral offence and therefore an illegal practice under Regulation 61 of the Electoral (Registration of voters) Regulations for her J 16 to ask or require any other person to give to her voter registration cards. The evidence came from PW2 and DW3. As to the relationship between the appellant and DW3 the learned judge found that the appellant was privy to what the lady had done. She in fact acted in the position of an agent of the appellant because she held a designated post. By his own evidence the appellant had told the trial court that he had allowed all MMD party officials with designated posts to campaign for him and as such she was allowed to campaign for the appellant in the manner she did. With the foregoing illustrations the appeal on ground one has failed. With regard to ground two it is contended that the learned trial judge further erred when he held that there was non-compliance with the provisions relating to the conduct of the election to justify the nullification of the election. The Appellant’s counsel submitted that the learned trial judge in saying that “the respondent had proved his case to the required standard” did not in fact state the required standard. Counsel said that if the learned trial judge had to set the standard of proof it should have been that requiring the respondent to prove his case “beyond reasonable doubt” because of the nature of the criminal offences created under the Electoral Act. Counsel thought that the learned trial judge had leaned in favour of the civil standard of proof of “on a balance of probabilities” and that this was his attitude considering his approach under ground one. The written submission of the appellant’s counsel has drawn our attention to the question the learned trial judge set for himself at page 29 of the record of appeal. We shall be referring to it later. After quoting Section 18 (2) (a), (b) and J 17 (c) of the Electoral Act, Mr. Chali contended that none of the allegations accepted by the lower court as having been proved had the effect of preventing the majority of the voters from electing a candidate of their choice under Section 18 (2) (a) of the same Act. In terms of Section 18 (2) (c) of the same Act counsel briefly submitted that none of the allegations complained of, that is, the corrupt or illegal practices, were committed ‘by or with the knowledge and consent or approval of the candidate or his election agent or polling agent.’ On the other hand, Mr. Msoni reiterated what he submitted under ground one and insisted that the learned trial judge correctly found that the appellant did not tender any evidence that could upset the evidence on record. As far as Mr. Msoni was concerned, the learned judge did not fall into error when he held that there was non-compliance with the provisions relating to the conduct of an election. Before dealing with the learned judge’s assertion that “the respondent had proved his case to the required standard” and what he meant by that, we would like to deal with the second part of Mr. Chali’s submission first. The second part of his submission is further subdivided into two parts, that is, Section 18 (2) (a) and Section 18 (2) (c). Under the former, Mr. Chali has argued that in terms of Section 18 (2) (a) of the Electoral Act the allegations of corrupt practice or illegal practice accepted by the learned trial judge as having been proved did not have the effect of preventing the majority of voters from electing a candidate of their choice or whom they preferred. J 18 At page 29 of the record of appeal, the learned trial judge states thus - the question that falls to be determined is whether there were any corrupt or illegal practices committed by the respondent or his election and polling agents or whether there was non-compliance with the provisions relating to the conduct of the election to justify the nullification of the election and to declare the respondent not duly elected. In determining the question posed, the learned trial judge was assisted by the five incidents or allegations we were referred to when considering ground one. These are the ones that are crucial to the appellant, considering that the learned trial judge had found them to have been successfully proved. As it will be observed from the judgment of the court below, all the other allegations the respondent leveled against the appellant were not successful. We have re-visited the evidence relating to the five allegations (or incidents) of corrupt or illegal practices we examined under ground one. The allegations, if we may repeat, are (a) the use of government resources (b) the re­ opening of Mwanika clinic (c) the slaughtering of an animal at Mwanika polling station on polling day (d) the presence of the Kulima Tower boys in Msanzala constituency and (e) the collection of the voters’ registration cards. All these allegations were, according to the learned trial judge, proved upon the trial of the petition. Can we say that there was enough evidence before the learned trial judge to prove that in terms of Section 18 (2) (a) of the Electoral Act, the majority of voters in the Msanzala constituency were or may have been prevented from J 19 electing a candidate whom they preferred? For the sake of clarity we shall reproduce Section 18 (2) (a) and (c) under which the learned trial judge nullified the election as follows - 18 (2). The election of a candidate as a member of the National Assembly may 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) (b) (c) 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 were or may have been prevented from electing a candidate in that constituency whom they preferred; .............. 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 agent; We think that all the five proven allegations of illegal or corrupt practices outlined above are relevant to paragraph (a) of subsection (2) of Section 18 upon which the learned trial judge found support for nullifying the election. The evidence on record, highlighting incidents of misconduct in form of violent acts committed by the Kulima Tower boys, is overwhelming. The intimidation and actual violence committed against those perceived to be against the appellant and his party, the MMD, is well documented. The boys, who were sponsored by the appellant, can be said to have caused so much fear among the voters in the constituency. The second proven allegation relates to the evidence of illegal practice involving the collection of voters’ registration cards in exchange with mealie J 20 meal, salt and chitenge materials. There is evidence by PW2 at page 201 of the record of appeal, Vol. 2, that 30 voters’ cards were found in the house of the chairlady of the MMD Party in the Malango area of Msanzala constituency who was, at the same time, an agent of the appellant. The evidence is that those whose cards were illegally taken away were deprived of their right to vote. The third aspect relates to the evidence of slaughtering an animal at Mwanika polling station and sharing out the meat to would be voters before they went on the line to vote. This had the effect of inducing voters to vote for the appellant even when he may not have been a better candidate. Besides, the use of government resources, such as, motor vehicles during the campaign, disadvantaged other candidates in that the-would-be voters were attracted to vote for the appellant not because he was a better candidate but because he offered free rides. The delivery of an ambulance, medical personnel and medicines to Mwanika clinic, which the appellant, as the then Minister of Health, re-opened a day or so before election, was clearly intended to boost his chances of being elected as MP for the area at the expense of other parliamentary candidates. On the totality of these incidents of misconduct, illegal or corrupt practices, we are satisfied that the learned trial judge was on firm ground in coming to the conclusion that the majority of the voters may have been prevented from voting for a candidate whom they preferred. With regard to paragraph (c) of Section 18 (2) quoted above, we repeat what we have just said above in relation to paragraph (a) of subsection (2) of J 21 Section 18 and what we said in dealing with ground one. We wish to record and express our satisfaction, once again, with the findings of the learned trial judge that the five allegations of corrupt or illegal practices listed above were committed by or with the knowledge and consent or approval of the appellant or of his election agents. As we listened to the submissions we were persuaded to add the offence of treating which the learned trial judge did not allude to when he dealt with the evidence of slaughtering an animal at Mwanika polling station and the giving of meat to would be voters. According to the learned trial judge’s finding, the animal was purchased by the appellant who authorized his election agents to kill the animal and give meat to would be voters. Under Regulation 53 of the Electoral (General) Regulations any person shall be guilty of an offence of treating during an election if he, directly or indirectly, gives or provides or pays for food, drink, entertainment, etc, for the purpose of corruptly influencing that person or any other person to vote for him or refrain from voting for another candidate. On the basis of the evidence the appellant cannot escape the offence of treating and we find him guilty accordingly. With the foregoing comments we are of the view that on the basis of our reasoning in Mlewa Es. Wightman (8), the learned trial judge was on firm ground in his finding that the respondent had proved his case to the required standard in terms of Section 18 (2) (a) and (c) of the Electoral Act. On the standard of proof required in an election petition, such as this one, where criminal offences were J 22 alleged against the appellant, our stand as asserted in the case of Akashambatwa M. Lewanika and Others Ky. Fredrick T. J. Chiluba (7) has remained good law. We hasten to say that on the basis of the overwhelming evidence before the learned trial judge the required standard of proof he had in mind and which the respondent had to satisfy was that falling between the civil standard of on a balance of probabilities and the criminal standard of proof of beyond reasonable doubt. We do not, therefore, agree with the submission that the standard of proof should have been beyond reasonable doubt because the proceedings in an election petition are civil even if criminal allegations are made. We dismiss the appeal with costs to be taxed in default of agreement. D M. Lewanika, DEPUTY CHIEF JUSTICE. I. C M. Mambilima, SUPREME COURT JUDGE. SUPREME COURT JUDGE. S. S. Silomba, SUPREME COURT JUDGE.