By Isaac Mwanza
The political eyes of many Zambians appeal to be focused on how the Constitutional Court will decide the appeals resulting from the High Court nullification of the Parliamentary Petitions involving Munali Member of Parliament, Hon. Nkandu Luo and her counterparty lawmaker from Lusaka Central Constituency, Hon. Margaret Mwanakatwe. There are many questions we can ask:
Why is there so much interest in the Munali and Lusaka Central Petitions? Is it because the incumbents or the official agents personally breached the electoral rules thereby warranting nullification of their seats? Is it because they are serving as ministers in President Lungu’s administration or it’s because of their affiliation to the Patriotic Front? Can we predict how the ConCourt will rule in these cases? What is the criterion that the Courts have used to decide whether to nullify the election or not after the enactment of the new electoral law on 7th June, 2016?
Objectively, lets analyse how the High Court were able to saving the seats of both the opposition and ruling party Members of Parliament from being nullified and what the court has said about the new law. I will avoid making comments on the two cases before the Constitutional Court because it may be subjudice but will leave my readers to make a conclusion, all things being equal:
- In the case of Richard Sikwebele Mwapela v. Miyutu Chinga (2016/HP/EP/0016).
This was an Election Petition challenging the declaration that the Respondent was a duly elected MP for Kalabo Central Constituency. The gap between the two candidates was 8,613 votes. At the hearing of the Petition, the Petitioner testified and called 12 other witnesses and the Respondent called 15 witnesses including himself.
The Judge in delivering her Judgment observed that:
“Arising from the provisions of Section 97 (2) of the EPA, an election of a Member of Parliament in my considered view can only be avoided if it is proved to the satisfaction of the High Court that such candidate or with his knowledge and consent or approval or that of his election or polling agents committed corrupt practices, illegal practices, or other misconduct. The section goes further in that it must also be proved that as a result of such corrupt practices, illegal practices, or other misconduct, the majority of voters in a constituency were or may have been prevented from electing the candidate of their choice.
What this entails is that the strict liability rule that was in the repealed Electoral Act of 2006 has been done away with meaning that some of the old cases or precedents are no longer good law… The test to be used is now more stringent than before as it must be borne in mind that election Petition is no ordinary Petition as it encapsulates a public interest”.
The Petition was accordingly dismissed as the Petitioner failed to prove the case to the required standard. The election of the Respondent was accordingly upheld.
- Andrew Kafuta Kayekesi v. Dr. Chishimba Kambwili and Attorney General – 2016/HN/EP/001
This was a Petition relating to Roan Constituency in which the gap between the Petitioner and the 1stRespondent was more than 6,000 votes. The Petitioner testified in his own right and called 9 witnesses while the 1stRespondent also testified and called 4 witnesses. Part of the allegations included use of Government resources and vehicles.
In its Judgment, the Court held that:
“Bearing the totality of the evidence before me, and bearing in mind my findings, can it be said that the majority of the electorates in Roan Constituency were robbed of the opportunity to elect a person of their own free will and choice? There is no doubt that there was a wide difference of over 6,000 votes between the Petitioner and the 1st Respondent. But sight should not be lost that the alleged corruption took place on the voting day at only two polling stations, Mangano and St. Thomas, of a one off incident each. It could not therefore be reasonably said that the election was so flawed that the defects seriously affected the results which no longer represented the true free choice and free will of the majority of the voters in Roan Constituency. For the above reasoning and conclusions, I find and hold that the Petitioner has failed to prove his Petition to the requisite standard and it lacks merit”.
- Josephine M. Limata v. Makozo Chikote – 2016/HP/EP/0020
The Petition herein related to the elections held in Luampa Constituency. The Petitioner polled 2,921 votes and the Respondent polled 9,524 votes. The Petitioner apart from herself called 11 witnesses and the Respondent called 16 witnesses apart from himself.
In passing his Judgment, the Honourable Judge said the following:
“Primordially, I must remark that the EPA No. 35 of 2016 was assented to on 6th June, 2016. Therefore, reported cases based on the repealed Electoral Act of 2006, or before, may have limited precedential value to this adjudication, in particular on the grounds for nullification of the Parliamentary election. The MICHEAL MABENGA case, and the JOSEPHAT MLEWA case wherein it was held that satisfactory proof of any one corrupt or illegal practice or misconduct in an election Petition is sufficient to nullify any election, regardless of the wrongdoer, is no longer law in view of the current Act”.
The Court accordingly upheld the election of the Respondent and dismissed the Petition.
More significant, the fourth case below offers an in-depth analysis of what the Court, concerned with fulfilment of the three-tier criteria in Section 97 Subsections 2 and 3, ought to do when making a decision whether to nullify or not nullify an election.
- Rose Salukatula v. Victor Lumayi – 2016/HP/EP/0028
The Election Petition related to the Chavuma Constituency. In arriving at its judgment, the Court made the following observations:
“Having determined that the Respondent offended sections 81 and 89 of the Act, as well as sections 15 (1) (c) and (h) of the Code of Conduct, I must undertake an impact analysis to determine whether the breaches meet the litmus test prescribed under section 97 (2) (a) to justify the avoidance of the election of the Respondent.
Chavuma Constituency had 43 polling stations with a total of 13,810 votes as reflected in the declaration of results exhibited on page 7 of the Respondent’s Bundle of Documents.
From my findings, there are only four out of the forty three polling stations where I found that the Respondent was in breach of the Act. These were Kambuya, Kakhoma, Sewe and Mandalo.
In Kambuya, I found that the Respondent gave one Chitenge to PW2. In his testimony, PW2 assured the Court that he was neither influenced by the gift nor did he influence any other person on account of the gift. It follows therefore, that this misconduct had no impact on the result of the elections.
However, the Petitioner was successful in satisfying me, with a high degree of clarity, that in Kakhoma, the Respondent was (i) greeting people in voting queues using the UPND symbol as he visisted Kakhoma Polling Station and (ii) that during the campaign period, the Respondent aligned the Referendum to same sex marriages and attributed the attempt to introduce same sex marriages to the Patriotic Front.
The Respondent received 686 votes out of 1148 ballots in Kakhoma.
In Sewe, the Petitioner was successful in satisfying me, with a high degree of certainty, that the Respondent was embracing people in voting queues.
The Respondent received 233 out of 633 ballots.
In Mandalo, as in Kakhoma, the Respondent was found wanting as regards falsely aligning the Petitioner and her party to attempting to introduce same sex marriages.
In Mandalo, the Respondent received 67 votes from the 445 ballots.
The total number of votes which the Respondent received in contentious areas of Kakhoma, Sewe and Mandalo, where there may have been an impact, was 986 votes, which represented less than 10% of the total votes cast in Chavuma Constituency.
As I indicated in the genesis of this Judgment, my position is that there can only be one of the three conduits prescribed under Section 97 of the Act, to which this Petition can be considered, namely Section 97 (2) (a).
Section 97 (2) (a) of the Act is cast conjunctively. That is, it requires that the transgression must not only exist, but it must necessarily result in the possibility of the prevention of the majority of voters in that constituency from electing their preferred candidate.
My impact reveals that less than 10% of the total number of voters in Chavuma may have been prevented from electing their preferred candidate by virtue of the Respondent’s misconduct.
Clearly, any percentage less than 50% of the electorate represents a minority, thereby falling foul of Section 97 (2) (a) of the Act. This being the case, avoidance of the election of the Respondent would not be supported by the law, as applied
Accordingly, the Petition of the Petitioner filed on 26th August, 2016 is dismissed”.
The above cases highlight the new changes in Zambia’s Electoral law and the attitude of the courts when it decides to strictly interpret the law. The duty of every court and every judge, as we know it, is to enforce the law as made by the people through their representatives in Parliament and not to make new laws. If the law has a problem, you cannot blame the court and the only way to remedy the problem is though Parliament. This current law was passed by Members of Parliament from the PF, UPND, FDD, and MMD.
(The views expressed in this article do not necessarily represent any institution I may be associated with and neither is it meant to offer a legal opinion. Those seeking a legal opinion can contact the Law Association of Zambia, which is an authority of legal matters in Zambia)
 Page J93 of the Judgment
Pages J89 to J90
 Page J29