Saturday, March 2, 2024

Munali ruling reserved as UPND Candidate asked to adduce evidence linking Prof. Luo to Mtendere violence

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UPND's Doreen Mwamba outside Court
UPND’s Doreen Mwamba outside Court 

The matter involving Munali Constituency in which losing UPND candidate Doreen Mwamba petitioned the election of PF’s Professor Nkandu Luo has been reserved for judgment.

And the Constitutional Court has asked UPND’s Doreen Mwamba to adduce evidence following her allegations in which she claimed that Prof Luo had sponsored PF cadres following attacks in Mtendere Compound which was the basis for the nullification of the Munali seat.

This is the matter in which Prof. Luo has challenged the nullification of her Munali parliamentary seat victory which came up this morning for oral submissions before the full bench of the Constitutional Court.

And Mrs. Mwamba has accused the Electoral Commission of Zambia of having lamentably failed to uphold the democratic tenets of a free and fair, transparent and accountable election in Munali constituency.

Mrs. Mwamba’s lawyer Keith Mweemba making his argument in opposition of the grounds by Prof. Luo’s lawyer Bonaventure Mutale that there was no evidence linking the appellant to the attack on the UPND campaign bus on 8th August 2016 said section 97 of the electoral process act does not provide any provision that says that an election cannot be nullified on the basis that there is no direct link between the candidate or agents and an act of violence.

Counsel Mweemba who asked the court to take cognizance of the holding of the Supreme Court of Kenya in the case of Raila Omolu Odinga V Uhuru Kenyatta of 2017 said the fact that Prof Luo or her campaign agents were not seen in the evidence attacking the bus does not exonerate her from the act and added that the fact that there was an attack occasioned by PF regalia clad assailants is evidence enough.

He further called on the court to take cognizance of the fact that the electoral process act does not provide material quantification on the margin of violence or malpractice that would affect the election and added that it would be very difficult to adduce such evidence while calling for a non-casual approach in the matter of violence in an election.

On the argument by the appellant’s lawyers that the attack on the bus was an isolated case that did not have an impact on the outcome of the constituency election, Counsel Mweemba said the fact that the ECZ witness testified on Oath that the commission got wind of the report through media reports on both electronic and print media is evident enough of the widespread of the information which sent chilling shivers among the electorates.

He further argued that this fact was confirmed with the flopping of the UPND rally scheduled for Mtendere on 10th August 2016 at which the public failed to turn up on account of fear of being attacked.He also said the police took no action despite the matter being reported to the police.

On the illegality of ministers stay in Government following the dissolution of parliament, the court heard that an illegality is occasioned from the day of the omission and the appellant was a direct beneficiary of that illegality as the PF campaign team led by Prof Luo went into the constituency being driven in a GRZ vehicle with a national flag while shouting BOMA NI BOMA and inspecting public projects thus intimidating and belittling other contenders.

He called on the Constitutional Court not to dismiss the decision of the lower court as it was on terra firma in its findings and judgment.

And Counsel Gilbert Phiri called on the court to dismiss all the four grounds of appeal which he said have fallen flat on their face as he saw no reason why the court should reverse the findings of fact by the lower court which include the use of GRZ official vehicle while 14 polling stations had no GEN 12 official forms which are the primary document used in any election for the purpose of recording results.

Counsel Phiri agreed with the findings of the lower court which said that the failure by the ECZ to provide the GEN 12 forms was a serious lapse on the part of the commission rendering it absolutely difficult to positively ascertain whether or not the votes for the 1st respondent (Doreen Mwamba) were positively accounted for thus letting down the people of Munali and critically affecting Mrs Mwamba.

He further argued that the lower court was on terra firma when it found that the 1st respondent was denied access to Vera Chiluba Polling station as there is no indication that she eventually had access to the said polling station as the gate was shut in her face.

He said double standards were applied to the detriment of the respondent who by law had the right to access the facility.

UPND's Doreen Mwamba outside Court today.
UPND’s Doreen Mwamba outside Court today.

 

And on the reliance of the case of Giles Yambayamba V Kapembwa Simbao in which the court held that the order on the illegality of the Ministers stay in power can only come into effect after 9th August,2016, Counsel Phiri said the appellant was misdirecting herself as the order was referring to ministers paying back their illegally obtained stipends accrued by their stay in office and wondered how this could be interpreted that the stay in office by the ministers was legal by alleging that the court was condoning the behavior of the minister.

He said the court has been presented with an opportunity to clarify its ruling in the Katuka decision as this was a clear abuse of public resources thus materially affected the election hence calling for the dismissal of the ground.

Meanwhile, Counsel Henry Mbushi further augmented that the fact that the 1st appellant confirmed having stayed in a government house,received a salary and paid workers and further inspected government projects as testified by her own witness in the lower court proves that her participation in the election was illegal and amounted to abuse of public resources and cited the case of Michael Mabenga who the Supreme court found to have abused public resource when he stayed in a room at a government school during the campaigns.

And citing the case of Mulondwe Muzungu V Elliot Kamondo election petition in which Judge Phillip Musonda vehemently said condoning violence in anyway would be condoning a bloody route to Manda Hill and it remains upto the Judiciary to ensure that parliament remains free of bloodshed, Counsel Mbushi said violence is illegal regardless of the perpetrators and should be discouraged especially by the courts hence calling on the Constitutional court to consider the Munali violence as indicated by the lower court as an illegal act on the country’s democracy.

The bench led by Justices Martin Musaluke,Enoch Mulembe,Mulenga Mungeni and Annie Sitali took unprecedented turns in ‘cross examining’the 1st respondents legal team on the direct link between the attack on the bus and Prof Luo who is regarded in the pleading before the lower court as having sponsored the violent attack.

In response, Cous Phiri asked the Court to take Judicial notice of the fact that there was a violent attack on the UPND campaign bus by people clad in PF regalia despite there being nothing to explicitly prove that Nkandu Luo or her agents were directly involved in the attack.

Earlier in her submissions on the four grounds of appeal, Nkandu Luo said the lower court misdirected itself when it held that she ( Luo) abused government resources during the period she served a cabinet minister during the campaigns as the judgement indicated by the Concourt in its ruling in the Giles Chomba Yambayamba V Simbao case was precise as order was post 9th August 2016 and not before that hence implying that the actions of the Ministers before 9th August 2016 were legal.

Bonaventure Mutale SC argued in the second ground of appeal that the 1st appellant failed lamentably to adduce evidence indicating that Luo of her agents directly sponsored violent cadres that attacked the UPND campaign bus.

He further said the attack was an isolated case which had no bearing on the outcome of the election results in the constituency.

He argued that the video evidence and comments by the trial Judge were irrelevant as it does not assist in confirming that the violence was widespread as it only occurred in Mtendere.

In his third ground, Counsel Mutale said the 1st respondent failed to adduce evidence proving that the failure to provide GEN 12 forms affected the outcome of the elections in the constituency as section 97 of the electoral process act is precise on the need for evidence to prove that the non-compliance had an effect on the results.

He further said the total votes cast in the constituency were 80,727 with 37,935 casting in favor of the 1st appellant while the accumulative total for the rest was 42,792 showing that the majority of the electorates voted against Prof. Luo,an indication that none of the appellant’s conduct had a bearing on the outcome of the vote.

And counsel Mwala representing the ECZ refuted the lack of GEN 12 forms saying each polling station was provided with the forms in excess 20 forms and wondered why the trial judge relied on the evidence of PW5 who was a discredited witness.

The court has since reserved ruling to a date to be communicated to the parties.
The matter stands adjourned.

43 COMMENTS

  1. Our judiciary is in disarray; in tatters; in total confusion; compromised; highly politicized; shamelessly scared of their own shadows; very biased……i can go on and on…

    • The court has reserved ruling is what the article says. If it rules in favour of upnd all the under5s will celebrate and praise the court and if ryked against them insults awaits our judges.

    • The ruling shouldn’t have taken this long.

      A precedence has been set now. Same as the finance minister and Ms Scot’s case.

      Our courts are run by imbeciles

      Thanks

      BB2014,2016

    • Where there is mafias style underhand corruption you can get away with murder sophistication in corruption in any country not only in Zambia even in the west countries like Uk judiciary is corrupt hands down

    • This matter will simply be going round in cycles by the time judgement is passed it will be 2020….the same with that Maggie’s case.

    • Surely whats the matter with our Judiciary mwe bantu? Nkandu Luo was and is a PF sponsored candidate for Munali and evidently swore an Oath or Affirmation that she will ensure her SUPPORTERS observe the Electoral Code of Conduct; please refer to Section 10(2)(a) and (c) of the Electoral Act CAP 13 the Laws of Zambia. NKANDU LUO IS LIABLE FOR WHAT IS CONTAINED IN THE VIDEO!
      These are now gymnastics by these cadres at Supreme Court, I am not UPND. This very scarily; maybe they want to just incite Lawlessness

    • @BaLazo not sober but after a BJ as Mushota just found out that Nick is gay! Imaging after all the expenses she showered on him!

  2. There’s no judiciary in Zambia. Lungu’s politics is first to kill independent media, make judiciary dependent on him and have the legislature look more fooolish than utusela. The other two branches of government are dead. Kubuta fye kulichitika. One wonders what happens at the law school at UNZA. Better to go to the local court than the circus at high court or con court. CON court as conman.

    • Interesting. If Luo loses, then the UPND candidate in Monze where the PF team was attacked is already a victim. Kaya?

    • Kalos2020: There u go again blaming UNZA law school. Motivation to do wrong can emanate from so many factors. Are you telling me the well-educated are not corrupt? You blog from USA. Ask Americans the level of judicial corruption in the 1920s after some religious nuts sponsored the banning of the sale of alcohol for social consumption by Congress. Beer selling just went underground and the Mafia took charge and made super dirty money which they used to corrupt America’s judges. You take your knowledge too seriously. By the way , I have replied to you over Inonge Wina’s degree from Santa Monica Community College.

  3. How does a petitioner produce fresh evidence in an appeal? Appeal is based on the same evidence that was adduced and examined in the court of first instance. This is totally strange, unheard-of. My goodness me, I never thought that we had reached this stage.

    • Chanchima
      Which new evidence have you seen that was produced at the appeal hearing? These to me are competent lawyers with very good arguments for and against,there is no way they can sit idle when new evidence is being produced that was never produced in the trial court!
      This curse in Zambia of being suspicious of everything and anything without appreciating the details of the matter is really unfortunate. Theres no rocket science in court,just produce evidence backed arguments and you take it.

    • Let her adduce evidence linking Luo, period! Where she will get it from it’s none of our problem. She started it she has to end it herself o else same BID cases.

  4. Reserved ruling. This and that.Bring evidence. Biggest Muppet show for judges to enjoy and the case will be concluded after 2021:typical of Zambian courts. Keep postponing while time moves on.

  5. As we follow these proceedings, it will help us to remember that under this new constitution, in case of violence, you must PROVE that it was directly sponsored by your opponent and further show how it affected the voters or the voting pattern.
    Waiting for the ruling….

    • It’s a very stupid constitutional provision, assuming of course that you have your facts right. The Constitutional Court is the cause of all this tension in this country. The humble one is not without blame either. How come late LPM was able to clamp down on political violence and succeeded? LPM knew what it meant to be commander in chief. We hear it freely from those who worked with him from generals, permanent secretaries and politicians.

  6. Let her produce evidence to show that luo assaulted her unlike wasting our time with BID cases. upnd surrogates including their leader under 5 ,have serious problem and ie they think they are ruling this Country. The social media will never take them to State House with their stupid propaganda 2015,2016 they used the same propaganda but ended up decampaingning themselves.

  7. #4.1 Chanchima, #4 china is typical of upndeez for you, their cadres could even have dressed in PF regalia on the day. Why, they even manipulated the elections using Cambridge Analytica.

    Coming to the case the best that can be done is to disregard the results in Mutendere if they are in doubt and declare the winner.
    Now If the appellant has such a violent disposition, we should have seen this in the rest of Munali constituency.

  8. By the way LT what is the latest contribution on h.h in South Africa? Has he managed to see Ramaphosa? Kikikikiki.
    Kikikiki….”Civil Society organisations have not reported any behaviour in Zambia even remotely close to the allegations by h.h”. That is h.h for you, damaging his own reputation by choice. As I said before, this boy would not worry me any time, he has the propensity of shooting himself in the foot at critical times. I hear even Maimane is now trying to keep his distance from the boy to avoid embarrassment, this time he will meet h.h even for afternoon tea.

  9. it’s very easy in our country to have yo opponent’s election nullified. you know how? simply wear his party regalia and throw stones at your own camp. especially if you know that you are loosing. just ensure you are filming the incidence. kkkkk

  10. Remember, they pride themselves with the slogan “water melon!” Now it will come to haunt them… It was UPND cadres wearing PF regalia over their red uniforms (by their own admission).

    • Oh I see you are looking at the genes. Yes from the photo I can see her DNA is the same as that of GBM

  11. So far the evidence is circumstantial. Iwe ka Doreen, produce evidence that will directly link Luo to the violence or forever shut up.

    Definition: Circumstantial evidence is evidence that relies on an inference to connect it to a conclusion of fact—like a fingerprint at the scene of a crime. By contrast, direct evidence supports the truth of an assertion directly—i.e., without need for any additional evidence or inference.

    Don’t waste the court’s time, losers.

  12. Zambians: Remember even if the judgment is in favor of PF or UPND it does not matter. What matters is the Judgment that will come from HEAVEN on your last day on earth. You may conceal many things and look very intelligent and get all support on earth but not the HEAVEN are ready for you. You will not hire a lawyer in HEAVEN but your deeds will speak you good or bad. No body guards will be there for you but you will face GOD ALMIGHTY a lone. Repent NOW and put your houses properly. Read James 5 v 1-20

  13. Looking at the statement above,it is highly likely that Prof.Luo will retain her Munali seat.
    But if the otherwise happens,still PF shall 100% win a by election in Munali.i vote in Munali and all my family members,friends,etc so watch out ba upnd because Munali is not Monze!!

  14. Njimbu: About time I took you on. Democracy can produce a result which you personally do not like. RB found out in 2011. Just ask him if you are in doubt. You say the things you say because you consider Monze a foreign country where you need a passport to travel to and only Tongas live there. I know that this kind of thinking is what drives the PF of ECL. Late MCS travelled to Choma in 2012. Did you see how he spoke to the people there? The common touch was evident and all was well. It’s a far cry from what ECL does.

  15. ECL has really divided us, I don’t why KK can’t advice him about how that strategy can backfire. You just make the country ungovernable and increase tension which can work against you in the long run.

  16. We will see if ECL will have the courage to fire Nkandu Luo now that her seat has been nullified. Next it might be the finance minister who will be forced to give up her seat. PF has really abused our judicial system, they have made people lose confidence in our judicial system. The judicial has a big task ahead of them in trying to raise citizen’s confidence in them. You can’t be pleasing one guy and ignore the people who own and pay your salaries out of their hard earned labor

  17. China: Where is nullification you are talking about?Did you attend court hearing and saw something from the way they court was asking Banaventure Mutale questions? Let’s wait for the judgement. ECL will not have to fire Nkandu Luo if it goes against her in court because she will cease to be minister and MP by operation of law. So don’t speculate if ECL will have courage to do anything. Spare him on this one but you can accuse him of anything you want but not this one. It just doesn’t apply.

  18. Doreen Mwamba is too fat. We can’t afford a Parliament with two people like that. That is including Kambwili

  19. The violence that I witnessed one day during the campaigns was scary to say the least. People behaved like beasts, we all scampered. People locked themselves in houses for fear of getting caught up in the ensuing violence. Both sides were wrong, I don’t even know how a sane person can even celebrate victory in such circumstances

    • Zambia needs a commander in chief who sees the armed and security forces as there to protect all citizens and residents in the country and allows them to do their work. The violence that led Doreen Mwamba to petition the election result would not have taken place with commander in chief who takes his job seriously. This precedent has been set already and what our men an women in uniform are capable of doing if allowed to do their work is beyond doubt. One day a good commander in chief will take charge and the difference will be seen again.

  20. It’s encouraging to read this forum when contributors stick to the relevant subject. Apart from a few exceptions, the debate has shown real concern and reasonable understanding of what the Con Court is about. Keep it up, citizens!

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