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.
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.