Supreme court tosses out PF bid to exclude evidence of violence and abuse from case

The Supreme Court has tossed out a bid by Patriotic Front (PF) to hide the unprecedented violence that characterized the Livingstone by-election in which one person was killed and government interference in the election that saw Lawrence Evans elected as the Member of Parliament.

The PF wanted paragraphs citing violence and blatant abuse of Police and Ministry of Education removed from the record.

The violence that rocked Livingstone during the last by-election forced the Electoral Commission of Zambia (ECZ) to postpone the election after a PF cadre was killed resulting in the arrest of several senior UPND officials, who were later released after it was established that they were not involved.

But in a petition launched by lawyers Marshal Muchende of Dindi and Company, the Supreme Court has thwarted the PF’s attempts to block the amendment to the United Party for National Development (UPND) Livingstone by-election losing candidate Regina Musokotwane who petitioned that apart from violence, government resources were used by the PF, in the by elections.The matter has since been sent back to the High Court for the petition to proceed.

The Supreme Court has ruled that Ms Musokotwane could make amendments to her petition based on the fact that the ECZ chairperson Irene Mambilima had acknowledged that the Livingstone by-election was marred by violence and could not guarantee a free and fair election.
The Supreme Court has also ruled that the Attorney General should be joined in the matter because of the involvement of the police and Ministry of Education.

Ms Musokotwane argued that because of the bloody violence in which known PF cadres discharged gunfire that characterized the Livingstone by-election, only 30 percent of the registered voters voted.

The Supreme Court ruled that the court had power at any stage of the proceedings to order any proceedings to be amended for purpose of eliminating all statements which may tend to prejudice or embarrass or delay fair trial.

Ms Musokotwane argued that the inclusion of the paragraphs the PF was contesting were in fact statements of fact known to all parties and could not therefore be deemed to prejudice Mr Evans, the Livingstone PF MP.

She submitted that the PF had in both the High Court and the Supreme Court failed to demonstrate that the retention of the paragraphs that were being contested would in any way prejudice or embarrass Mr Evans to invoke the powers of the court to eliminate the inserted paragraphs in the petition.

“It is a misconceived position by Mr Evans and demur in his argument to imply that an amendment to a petition can only be done with leave of court. We contend that Mr Evans has misapprehended the law by arguing as he has done. To the contrary, the Supreme Court does permit amendment of pleadings without leave of court. Therefore, the argument by Mr Evans that amendments to a petition can only be done with leave of court is misconceived,’ Ms Musokotwane said.

Ms Musokwane argued that Mr Evans had gone to the Supreme Court with dirty hands and prayed that the appeal should therefore fail as it lacked merit.

The Supreme Court also threw out an application by Mr Evans to have Ms Musokotwane’s paragraphs in her petition expunged because they mentioned the Zambia Police and the Ministry of Education because the application was not anchored on law.

Ms Musokotwane said it was the position of the High Court a non-joinder of a party was not fatal as to warrant the elimination of some paragraphs of the pleadings stating that the pertinent position of the law was that no cause or matter shall be defeated by reason of misjoinder or non-joinder.

Source:Daily Nation