Mutale v Mukuka and Anor (HP. 7 of 2002) [2002] ZMHC 11 (25 October 2002)

ncTI COURT FOR ZAMBIA MATTEROT: THE ELECTORAL ACT CAP.13 SECTION 18(c), 19 AND 20 OF THE LAWS OF ZAMBIA AND IN THE MATTER OF: PARLIAMENTARY ELECTION FOR MALOLE CONSTITUTENCY HELD ON THE 27™ DECEMBER, 2001 and IN THE MATTER OF: AN ELECTION PETITION BY MATILDAH MACAI^^^ BETWEEN: MATILDAH MACARIOUS MUTAL^^ X % a. Petitioner and SEBIO MUKBKA ELECTORAL COMMISSION OF ZAMBIA 1st Respondent 2nd Respondent Before the Hon. Justice Mrs. E. N. C. Muyovwe in Open on the 25th day of October 2002 at 0930 hours. For the Petitioner: Dr. J. M. Muhvilttj tyuna Partners I For the 1st Respondent: Mr. W. Ngwira, Messrs Libertas Chambers the 2nd Respondent: Mr. Chirambu, Principal State Advocate JUDGMENT petitioner comes to this court asking that it may determine the Wowing-. that the 1st respondent was not duly elected or returned and the ... Action was void; and a scrutiny to be carried out by the High Court in such manner as the court may determine. Petitioner testified that in the 2001 tripartite elections, she was a | candidate on the Patriotic Front (PF) ticket in Malole Constituency. There t I i «e other candidates including the 1st respondent who emerged as winner j under tire Movement for Multiparty Democracy (MMD). She explained that 1 she had a campaign manager apart from the fact that she also conducted her own campaign and she said she encountered a number of problems during fc campaign. As she went around campaigning, she discovered that the electorate were given roofing sheets, money, food, footballs and other it by other candidates and therefore, the electorate demanded that she also give Willing. In Chewe village PW1 was told that the 1st respondent had £wen K800,000 to tire school and promised more money shou th. same story i. Flothe — " ■Woo. foil otroo6„g sheets given by th. f . m . meting - , - ' • qrhnol and the same story applied given K200 000 for Makasa Pnmaty b ‘M-tha Vittsge "here the ete.^ - « “ “» out fertilizer, maize and that he had also repa teacher s houses at M^ba Primary School. At Chisangaponde ’ , Vjiiage roofing sheets were „• yven out by the 1st respondent and a the MMD and in Numbuka Village fet««zer was given out and roofing sheet , ho for the school and also J2 Clnlowibwe village.. She said civil servants in the Ministry of Education and ^culture were being used to distribute these items and these were MMD supporters. She said this was the trend wherever she went for campaign and lliatthe electorate were demanding that she also gives them gifts. She said she saw the items personally and proved what the electorate were telling her. She said she expected that after voting there would be a recount at the council chambers to verify the results ■'■from the polling districts. She explained that at Mungwi District council the electoral officers were only announcing the results. The polling agents, she said, waited for ballot box to be brought and that in fact on 28* December 2001 results were being announced but that around 0100 hours the electoral officers complained of fedness and stated that they would continue the following day an ^tgeslion by the election agents that they sleep m the council ch «the ballot boxes was rejected. > the monmf W followed was the afe®ncement of the 1st respondent as winner * . ' election. PW1 sought fe council secretary to lodge various complain , ■ . .h rkz* issue of some keys ballot boxes having been taken by someone to Kasam the keys were found, no one witnessed the counting. She sai a ^Paign manager Peter Mwila (PW2) had °f Electoral Commission. PW1 said that Mr. , • M1W «a« these re M I She said she complained about what she called consistent adjustment of residts by the commission which i ■ iastruction of Mr. Chilekwa and Mr. Chileshe ? was done under the * • She said results were -1 ... .. * announced without counting. She said results from polling agents would differ with those of the Commission. She also said there were problems of ballot boxes not being sealed. W questioned* the contents of the documents in tlie notice to produce produced by the 1st respondent. PWl’s prayer is that this court should results and declare that the 1st respondent was not duly elected as Under cross-examination she admitted that sl|e did not see the 1st ; - • sPondent put tlie roofing shee^’at Finshe Primary school. She said the 1 indent was involved m givWg .. she explained that she is pWt poUing districts, . i hniiliar with the electoral process. Acco 8 _ ballot ^ballot papers are removed, counts an / a recorded, put back into the oau . sealed and they are delivered to the main council cnam involved in count is done. She maintained that * e pt respondent was inv & report option and bribery during the election police. I J4 * petitioner , campai8„ „„Mcer A . W wllWMied the petitioner during campaign,,,^ o^nt told the court PW2’S evidence is substantially the same as that of PW1 except that he included the fact that the 1st respondent was usually accompanied by the secretary of Constituency Development Fund land the Chairman of the Constituency Development Fund (CDF) Mr. John Kansema. According to PW2, during the campaign, wheiever they demanded to be given something inexchange for a vote because ' alleged that this is what the 1* respondent had done. On electron d^ , ! i others he went to Mungwi i aid he was an election agent and togetrerwi ! District Council. Information was receive a that tire vehicle carrying ballot one was Doxes had broken down. As they war e waiting ■N for the ballot boxes no one was . ’Hewed to come ou^ until they finished v j -V 4 refresh themselves an $ a nd come back * morning, they were told to go an ' open and j. ' , that one ballot i I the time they came back they boxes were , °ne black trunk was open. x tn inquire why u the electoral ’ but was told to keep qm , >t He explained u Uie results were Would count and then announce the results « Allying and he gave examples o f rhitimukulu Ward, r 'ft '' '..................... ■' ■ J5 A n I i t Chilombwe. This exercise continued until 0100 hours when Mr. Chilekwa toM everyone to go and sleep and come back around 0500 hours. Everyone left except the officials who remained inside the council chamber. This was now 29th December and when PW2 and his colleagues returned around 0500 hours as advised, they were told to wait for the figures. PW2 observed that the presiding officers from the polling districts would be given a fresh form to fill in changed figures and they threw away the form earlier filled in. The results were announced that day around 1900 hours outside and according to the announcement, the petitioner got 1,755 while the 1 respondent got 5,368 and was declared winner. PW2 produced his own document where he was recording the results. Under cross-examination PW2 insiste - the 1st respondent gave money to , to Mumba Village and roofing W„, School, ‘wt. «« J go, aod votes than tlie'petitioner m those areas ^hupted the electorate. Sampa Cbamba a peasant «« If «« - . voter at Chewe P.llm, Station — “ “ He Md the eoM that he l» • n^ “f ““ P”““ T““<” J6 ■ wti®» (PTA) W , „,ember of ** He explained that in August 2001 Mr, Kanaema, the Clnrinnan of ' kCDf M Mr. Mmnbi, a member of MMD name to the aeboo! to | introduce the 1st respondent as the District Administrator (DA). At that * meeting, he said people asked for assistance to have some sand transported. •J * ’/ . The 1st respondent and Mr. Kansema agreed to render assistance through the CDF if money would be available. PW3 said they waited until November f • . ' c r, when tlie money was brought in the sum of KI million and tlie sand was . / . .. • Sported. He said in December, the 1st respondent cam|j with Mr. । Kansema and Mr. Mumbi during the campaign period inquiring whether W feceived the money. During a meeting they told them that wiiat .. t ■. ■ . ■'7< • ■ V ' .. , * [ eY had done should be borne in mind during elections because if they do vote for him, there will be no development in tlie area. At the meeting, Kanscma is alleged to have said that if they voted for tlie 1st respondent * ** would receive a further K3miU& and money to renovate the school ^est •' . ’,z : • . • . . • ’ ; ‘ ' 7 . PW3 .aid that he » ’**f * ** *' -eked for w. •. DA »» «e „ia ta the P— >" A-' • ' ' ■ ■ r • ' ' i' • ••’ • • ~ / / I i 1 one who said more assistance would be coming to the area if they voted for tlie 1st respondent. He said the K3 million has not been paid to date. I p\V4 Caristo Mutale Mumba a peasant fanner told the court that in January, 2001 he was at Mumba Village when due to floods the school collapsed and I ' most of the crops drowned. This situation was reported to the DA by the ¥ Agricultural Officer and (lie officers froth the Ministry of Education and the DA^the 1|respondent) went to die area and receive^ tlie complaints first hand And left but never returned. In November, 2001 PW4 said that a vehicle belonging to Chinchiwababili brought maize to the Ministry of ’J. Agriculture Gamp and officers from die Ministry of Health, Education .nd Agriculture distributed die maize and ® fact the wltaess waS a 5eC‘P ^ly December, mhize was brougl|again b^he same organization Present DA and officers distributed die maize as Uofnrp After the DA left another vehicle brought fertilizer which was distributed free o g Strict Education Officer also arrived and told diem to get Yr trials for renovating tire school would be sent, . After three days tlie 1 resPondent came with Mr. Kansema, Mr. Mumbi an , K/fr Peter Lukonto and • £w r* □XX- le is elected. According to PW #10 gave them things. However, he said that the school, has not yet been fenovated and that only the teacher’s houses were renovated. The 1st respondent, he said, has never come to the school since. Under cross-examination he said that government officials were involved during the distribution of fertilizer, maize and cement and that the 1st respondent did not play any role except that when he came on the scene he told the people that it was him who had sent those things and this was six days before the campaign. On the other hand, the 1st respondent (RW1) testified that in the December tripartite elections he stood on an MMD ticket. The 1 respondent was the District Administrator (DA) for Malole Constituency until the November 2001 when he resigned his position as he was standing as a member of Parliament. He explained that his campaign was based on th *t> -nifesto .nd he said he ioid die " «“ — rf * Ml® government, the, is. they »=re doing » **• do in fniure He said he did no, promise W* “ “ ** do tach elections He denied giving and Mr. KmS.ma end >» “ ““ “d "*»-■ As „g.rd .„e issue of « S**»“ personally give out tlie money but that when he was DA there was a written request for financial assistance through his office which he said he referred to the CDF. He has exhibited the application form and the payment towards Chewe Primary School. He denied promising K3million to the electorate. He explained tlie issue of the locked boxes stating that the boxes from Numbuka came locked and the person with tlie keys had gone off with them ; but that eventually the person came with the keys on 28th December. He said the boxes were opened and die usual procedure was followed thereafter. According to the 1st respondent, his assessment was that the petitioner even > did better than himself in areas where she alleged that he corrupted and bribed the electorate. He said that the roofing sheets that were given out were given out by the CDF and not by himself and this was between 20 SePtember and 20th October, 2001. He asked the court to dismiss tlie Petition with costs and that he be declared duly elected as Member of lament for Malole Constituency . Pinder cross-examination he said ro f „ sheets were given to Milando knitted that he knows School in Chitimukulu area in Chishika Vt B Constituency secretary and Mumbi as a member of the MMD and 1S Constituency secretary of the CDF. Mr. Kansema * C. . 'a’nnan for Malole and the respondent hnnselt Treasurer in MMD in Northern Province Hp • ' HC adm« 'taC he went for meetings with Mr. Ka„sema and mumbi. He explained that k-tmono, chairman is the overail boss „le He DA on 30lh November 2001. His campaign started on 8(h December because he waited until he filed his nomination papers on ls( December. His duty as DA was to ensure that government projects in tlie area were carried out and also coordinating tlie utilization of development finds. He denied that he coordinated the distribution of fertilizer and maize. He confirmed that he went to Mumba village in January, 2001 to assess the damage and later requested for relief food under the Disaster Management Programme. He said that indeed food was delivered under the same programme corm g October, 2001 to January 2002. He admitted having been to Chcwc School for meetings many times but that he did not promise them ^nhllion or that he would repair the school. The request for assistance was Messed t0 him but he said personally he had nQ request to CDF. He said PW3 was not a ward due Primary School. As far as he is. concerned he did distribute food t0 'ack of time. He said Nchinchiwababih was contra ln the constituency. He admitted having b ■ i having gone for Ambers of CDF. Ji i i jW was Benard Mumbi who testified that he used to be the secretary of He said on 13th September, 2001 a meeting was held to approve applications for assistance and that the application for Chewe Primary School was one of the applications considered during the meeting. He explained that the figure was reduced from Klmillion to K800,000. He said during elections, he was involved as a supporter of MMD but that he knew noilring about bribing people by giving them maize. Under cross examination he admitted knowing Mr. Kansema and the 1 respondent a tat he went on campaign meetings with him in places like Chewe g where lie had initially gone to introduce him as the DA. He said the peopl approached him as CDF secretary for funds but that he told them couect procedure was to ask for funds o . . c. rnr and Mr. Nsama (RW3) tale the letter which went through the DA. . nA The letter exhibited in court Was addressed to the DA and the witness said that this could have been a Tlie W ... “P'“ “ “ of ,b. DloWot D^loP— At 1“ A. « etWeen the Permanent Secretary and r. He said that in CDF their duty is to ensure that the CDF funds are pTA- n . nrnOerly. He said he did not know at which point the sand was piur J Riveted to the school but that in January this year they went back to see the job and there is still need for more funds to complete the job. He denied .ding to Mumba Village with the 1st respondent but that he went there with Mr. Kansema. He admitted that in December 2001 they went to introduce Ilie MMD candidate but that they had no chance of inspecting the school and according to him, the teacher’s houses were not repaired. He admitted that people were happy because of what tire government had given denied that as a party the MMD participated in distribution of m W3 Jackson Nsama who is a teacher at Chewe Pnmary School confirmed tet as a school they had a project of extending tire school and so tl y seeking assistance to transport sand and crashed stones. They song w is the one who collected the money and sig for it He said he signed • to die Committee. He I s°me forms before the application was su m that thete was „ proteins V Cr°Ss^xamination he explained that initially the ai Unulllon bin that when he went to collect the money Z tn be disbursed was up was told that they J13 sh001 on 17"' September 2001. He conceded that he could have mixed up ie dates but stated that the headmaster is the one who solicited for help from tbe DA in writing and he said he personally took the letter to the DA Ife said he personally organized transport with a private transporter and paid for it. When asked how he came to sign on the part of the contractor the witness was hesitant to explain why he signed on that part and yet he is not a contractor. He, however, said he paid the contractor in tlie presence of the PTA chainnan. He said he only saw people campaigning around November ’ and December but he got the cheque in October. f W4 Jolin Kansema told the court that as an MMD supporter he was involved in the campaigns and he was actually tlie campaign manager as constituency chairman. He said as a party they went around tlie constituency gaining their manifesto and there was no question of bribing voters. He Said they held a meeting at Chewe Primary School and he addressed the Bering there but he never made any promise to give K3million once 1 j ^ent was elected. Under cross-examination he said when going round j Constituency he was with the ls‘ respondent and Mr. Mumbi (RW2). He | Said >n January 2001 the 1st respondent was the DA and they went vi ... * where they were floods and people had a problem with food as ] Cr°1)s Were destroyed and they also asked for repairs to the teachers .114 Ke said later they found that the Ministry of Education had repaired the houses which they saw during the campaign. He said it was not tlie 1st respondent who delivered the sand and crushed stones. He stated that interviews for candidates were held between 9th and 14th October 2001 and after this the names were sent to the National Executive Committee. He said they were aware that there was to be an election so they had started preparing themselves. Before December he said they had meetings as constituency officials without the 1st respondent and later they went to introduce him as the DA. He said it was the people who sought assistance and that in fact Mr. Nsama (RW3) was the spokesperson as secretary of the PIA He said Mr. Nsama talked to the DA, to a number of people as they required assistance to carry sand for their project. He said that Owe Primary School tlie petitioner got more votes than the 1 respondent. ^4 Samuel Mweemba testified that as Nchinchiwababili Rural ^velopment Project, they participated in the distribution of maize and fertaizer in conjunction with Programme Against Malnutrition. Gained that the beneficiaries were the vulnerable m soci y f^rs were distributed to various areas. He said no civic leaders were ^ived i„ the distribution of maize and fertiliser and that m fact tie Wamme is on going sinc6 2000 and that after an evaluation I I Pr»g— Win be conducted. hc .nd non-religions. fc organization in 1956. He DisdM committee was responsible for the distribution and it comprised of representatives from government, NGOs and the community. The 1st respondent as the DA was die overall boss of tlie government departments. The witness said the distribution of food goes beyond political affiliation as everyone is need of food. He, however, said he did not know the criteria used in the distribution of maize. He said his organization was hired to transport the maize but he was not aware of the specific areas where the maize was taken to or where it was dropped. Due to the issues raised by the petitioner as to handling of the ballot boxes, raised by either side. Mr. . PAier Mansase Chuesne w rhUeshe testified that in - Wole constituency there are 66 polling sta i ^ed at 0600 hours and ended at 1700 hours. Accor • polling station, counting was c one in the presence or ai b Mungwi all materials were put in tlie a 0 . i- Kayos and uan:>pv police officers ^'strict Council. The ballot boxes should be acco P Electoral the presiding officer and he sai •it was not tlie duty ot m J16 “ P'”'de “n!PM “ A, the cll„w ( , „ . of c„„Uda,ing W» fa. each candidate had a pollil,g agM left the council chamber until the following day in the evening when he announced the results. At this stage, Mr. Chirambo tlie learned Principal State Advocate applied to have the matter adjourned so that the state could file their answer on behalf of the Electoral Commission and after hearing both counsels for tlie petitioner and the 1st respondent tlie court refused the application by the state for an adjournment because tlie Electoral Commission had ample time to a state advocate to represent it in these proceedings but failed to do so. Chileshe said at all times the police officers were present. Cross- 5x^uined by Dr. Mulwila, he said that they waited for all ballot boxes to be broi,ght in before consolidating the results and he said he did not recall a *"ne when he asked the polling agents to go out. He recalled a situation one presiding officer was not present and they wanted to open the box bl,t the officer-in-charge refused them to do so. He denied asking the hiding officers tQ change figures and he Said he announced the results on J17 (X December and this was th. sa„ da, consolw,li(J„ Ontmmlned by Mr. Ngwta be said (h« resafe fcr p^|ng d|>„iM had been announced at each polling district and polling agents had obviously taken note of the lesults. As far as he was concerned, consolidation took place when all the ballot boxes were brought in. Answering a question from the court, he said that the keys to the ballot box is normally supposed to be pasted to the box but they had to use cellotape and so some keys fell off and because of this, the keys were brought by presiding officers in about four cases. At this stage Dr. Mulwila, applied for the petitioner to be recalled for the purpose of tendering into evidence part of the election results allegedly compiled by the Council Secretary into evidence and tins appl refused because tire petitioner is not the author of the doc » «»»s=d by “ ““ ““ ® 'he absence of polling agents, and also , results were altered by the hiding officers at Mungwi District Council, i 1 the court found it necessary order a recount of the results and this was ^nnebv tlie Deputy Registrar Of the High Court who tendered his report after completing J18 Both counsels have filed written submissions and these are on record. pr. Mulwila, Counsel for the petitioner submitted inter alia that the 1st respondent was involved in corrupt and illegal practices as defined under section 18(2)(c) of the Electoral Act, cap 13 and regulation 51(l)(a) of Electoral (General) Regulations 1991 S. I No. 108 of 1991 and that for this is so having regard to the evidence before court. He submitted inter alia that the electorate to vote for 1st respondent, it was because of what he had done for them. He submitted tliat tlie disaster management committee distributed fertilizer free of charge to Mumba village and the 1st respondent claimed credit for this. He also pointed out that in fact according to PW4 the 1 respondent told them tliat the maize, fertilizer and building materials were for campaign purposes. He submitted that tlie instances given by the witnesses render the election of * 1* respondent as MP .null and void. He referred to Mlewa vs.. Nightman (1995/97) ZR 171 to support his argument that on the court should nullify the election of the 1 respond * 1^ t„«»1-res,— w * the question — «»> ■“ “ ev— has « «« >' ” .119 and iUe8al practices during the election to w of tlie Electoral Act, to be invoked. warrant section 18(2)(c) A 1 inter alia. tlw rhe evid„e by » render rhe 1- responded eleefa declared _ „« voM ,nd ,*r can il be a basis to find him of „„pl — committed in connection with the elections. He also cited Mlewa vs. Wightman to reinforce his submission that the petitioner has failed to demonstrate that the alleged corrupt and illegal practices were committed by the 1st respondent and his agents. He urged the court to declare the 1st respondent as having been duly elected. * B f ¥ I have considered tlie submissions by both counsels and I am grateful to them. h her petition, the petitioner stated in paragraph 3. © during the campaign the MMD “"d1^ e ” ing t0’ the name Mumbi ,. Mnkuka Malole constituency Chairman John Kansema and MMD officii answe B „ to went round the constituency givmg out rooting solicit votes:- J20 (a) S'TtS at Chisanga Ponde- Numbuka, Chishika anq Finsne Primary School; (b) they gave out fertilizer at Mumba/Batatu village and (c) they gave out K800,000 at Chewe Primary the school would get a further K3,000,000 and Presidential candidates were voted in; school and promised that if the MMD parliamentary (ii) An official from the Electoral Commission who was charged with the security of ballot boxes opened some of them in the absence of polling agents and monitors and took keys to Kasama. Tlie petitioner requested for a scrutiny to be carried out. After hearing all the evidence I ordered a scrutiny and a recount and I must say that I found nothing particularly irregular in the actual results except a few instances where the recount showed more votes than was indicated by the Electoral Commission of Zambia. Indeed, this aspect has not been touched by both i parties in their submissions therefore the court must presume tliat after the f ( recount, the petitioner found dial her fears were unfounded. The petitioner alleged that one ballot box and a trunk were opened to absence of tlie polling I a8ents and monitors and in fact the presiding officers changed their figures when they reached Mungwi District Council. I have examined the report Emitted by the Deputy Registrar and I have not found any irregularities "^ch are note worthy. Iwi11 go through tlie specific allegations of bribing and corruption as alleged bytl,e petitioner. J21 * respondent has not denied that he campaigned with people whom he *d key members of the MMD and this included Mr. John Kansema (PW4 ) and Mr. Mumbi (PW2). The two witnesses were important members of MMD in Malole constituency and they were members of the CDF. The 1st respondent himself was the District Administrator in the period preceding the year 2001 elections and only resigned his position in November 2001. The petitioner has alleged that roofing sheets were given out at Chisenga Ponde, Numbuka, Chishika and Finsha Primary school. Tlie evidence horn tlie petitioner and her witnesses is that tlie electorate told them that the 1st respondent had brought roofing sheets and therefore demanded something from the campaigners. I have examined tlie evidence On this issue. The petitioner and her witnesses were merely told that the 1 respondent and his group had brought the roofing sheets. The petitioner ’'erself said she saw the items in various areas thereby proving that what tlie iterate told her was true. Indeed, there is no one who was called to come and confinn that the 1st respondent and his agents are the ones who supplied and delivered the roofing sheets to the various areas stated by tlie petitioner Or indeed more importantly no proof has been rendered to show that the J22 roofing sheets were given out in order to solicit for votes f . Or votes from the electorate At the same tune these items were delivered in nt ere<l in November while the 1st - District Admit,iSMor Md tad as MP for Malole oo„s(itey. j &d that the roofing sheets is unfounded and has not been proved by the petitioner. Turning to the issue of the 1 respondent and his campaign team giving out fertilizer at Mumba/Batatu village. No evidence was led about Batatu village, the only evidence the court has is for Mumba village. The evidence is that in January 2001 Mumba village was flooded and there was hunger but that assistance only came in November 2001. Firstly, some maize was brought to the Ministry of Agriculture and distributed by officials from Ministry of Health, Education and Agriculture, some more maize was brought in early December and later fertilizer was distributed free of charge. PW3 said that when the 1st respondent arrived he told the people tliat they should vote for him because of what he had done. He told them, (and I r WePW3’s evidence) I started with renovating houses and we co feceived them and he cement and all necessary materials and we said he was going to see the people who wer pp^ brought and all immediately and indeed the following mo g the necessary materials. After that ..... tha for what he had done. Later on he said i was going to finish constructing the school and if we le congratulated him vote for him he not do that then there d t0 bring these things will be no development”. ™ everybody _ government Wil the 1" respond.,,. — Ms for you”. He said the raize was broueI„ dnring As far as PW3 was concerned the maize and fertilizer were used as campaign materials because they were brought during campaign and six (6) days before the election the lsl respondent told tire electorate that he is the one who supplied these items. He said the people who distributed the maize did not say it was for campaign. PW3 who was a PF polling agent also benefited from the distribution of maize and fertilizer. The 1st respondent denied the allegations and explained that tlie maize distribution was a government exercise. Indeed, the facts show that tlie problem in Mumba village arose in January 2001 but it was not until November 2001 that the eovemment made efforts to sort it out. Evidence is that the maize and fertilizer was distributed by the government but that the 1* respondent took al> the credit for it by telling the people that it was him who organized the items. as a fact that although the food was requested for in January, tlie lament only started distributing maize in Mumba village in November J24 j I 2001. The exercise of maize and fertilizer distribution programme as stated by PW3 and everyone her . . Was a government believed so until the 1st respondent announced that he was thp nn^ " “ "W"* Can i, therefore be J ta. ta was a oom,pi prMice „ illega| respondent? Tlie 1 respondent, I want to observe was in a unique position or in an advantaged position. He was the District Administrator for the area. The distribution was done in November and elections were held in December. I * s.. find tliat the distribution was not done by the 1st respondent and there was an attempt by the 1st respondent to show that this was an ongoing government programme. I have had the opportunity of going through the judgment of my brother Judge Banda in the case of Peter William Mazyambe Daka vs. hevison Achitenji Mumba 2002/IIP/EP/0003 at page J27. In tliat case my brother Banda J. found that tlie respondent who was Minister of Health at the time of elections opened Mwanika Clinic a day or so before elections '*h had been closed for a very long time. As Minister of Health, tlie court that he should have known what was happening. The court found that opening of the Clinic at the time was aimed at showing the people tliat respondent was a working Minister and that this had an effect of wooing Cueing voters in the area to vote for him and that after the purpose was achieved tlie Clinic closed and the drugs the , 8 ’ the amb»lance and staff were all with drawn. Indeed, in that case the court found tW .1 • l0«na that this amounted to corrupt and illegal practice and vote buying on the nan d J on me part of the respondent. The court fvirther said that: ‘it could not be said in such circumstances that the voters voted for a candidate whom they preterrea. Indeed, I would like to associate myself with these and observations which are equally of value and applicable to this case and I adopt them. In this case tlie need for food was identified as far back as January 2001 and yet food was only distributed in November 2001. The 1st respondent is the one who was running the show and knew the needs of the people since the beginning of the year. I believe that the late distribution of maize was meant . : • - c for campaign purposes - the elections were held in December so it was to > foe advantage of 1st respondent and his party to distribute die food late in Met to influence the electorate. The distribution may not have been done specifically by the 1st respondent but it was definitely done through his bowledge as the District Administrator. The evidence before this court is he was responsible for tire province and such distribution cannot be ‘Me without his knowledge because he was even part of the disaste J26 ***« In M!». M WiE„lmal, . wW observed'- candidates so that a defence7of not be upheld if shown that the illegal acts complained of affected the results of elections. The court held that the distribution of the exercise books and the T-shirts had been done on such a large scale that many voters in the constituency were bribed to vote for UNIP and that this had affected the outcome of the election”. In Mlewa case, High court went ahead and nullified the election and the decision was upheld by the Supreme court. In this present case, it is quite clear that the MMD hiding under tlie guise of government distributed the food to the people of Mumba village at the last minute and indeed it is no wonder that when the 1st respondent went for campaign, he told the people tliat this was his doing thereby wooing for votes. The 1st respondent having had knowledge of the problem only took action knowing tliat he would need the people’s votes - he laid his ground. 1 will now address the issue of the K800.000 given to Chewe Primary I have carefully considered this issue and I find that the petitioner’s are unfounded. The request for assistance was from the people Selves and this was in August 2001 when the 1st respondent was taken «* *“<». I « « dealt by ,ri„ Development Fund (CDF) including the 1st respondent. At the end of the day it was not the 1st respondent who gave out the money but the CDF as requested. The evidence shows that the CDF sat and approved the application and payment was made in favour of the school. I also find that the issue of the 1st respondent promising a further K3m if voted in has not been proved. Having found that distribution of maize to Mumba village affected the outcome of the elections in Mumba village the question is, does this render the whole election null and void? I find that die distribution of maize and free fertilizer was restricted to this limited area - Mumba village. It has been, also conceded by both parties that in fact the petitioner did better than the respondent in Mumba village despite die distribution of maize and fertilizer. I find therefore that the distribution of maize and fertilizer having b«en limited to that area did not have a bearing on tlie results in die whole of Malole constituency to warrant the rendering of tlie whole election of the 1 resPondent null and' void. For a petition to succeed, die petitioner must Sho« that the conduct complained of affected die whole result of the ^n. From the foregoing, this does not appear to have been so in this election. I find that the actions complained of did not affect the result of the J28 J29