Anti Rigging Zambia Ltd v Zambia National Broadcasting Corporation and Ors (HP 1044 of 2008) [2008] ZMHC 3 (29 October 2008)

the HIGH COURT FOR ZAMBIA ^THE PRINCIPAL REGISTRY HOLDEN at LUSAKA (CIVIL JUMDICTION-CONSTITUTIONAL) 2008/HP/1044 IN THE MATTER OF: THE CONSTITUTION OF THE debt™ - IN THE MATTER OF: ARTICALE 76 IN THE MATTER OF: THE ELECTORAL ACT, NO. 12 OF 2006 OF ZAMBIA (CAP/1) BETWEEN: ANTI-RIGGING ZAMBIA LIMITED (BY GUARANTEE) APPLICANT AND ZAMBIA NATIONAL BROADCASTING CORPORATION TIMES PRINT PARK ZAMBIA LIMITED ZAMBIA DAILY MAIL LIMITED THE ELECTORAL COMMISSION OF ZAMBIA ATTORNEY GENERAL 1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT 4th RESPONDENT 5th RESPONDENT Before Honourable Madam Justice H. Chibomba this 29“ day of October, 2008. For the Applicant For the 1st Respondent For the 2?d Respondent For the 3* Respondent For the4"'&SK Respondent . Mr K. F. Bwalya of KBF & Partners • Mr. P. Songolo, Legal Counsel, Zambia National Broadcasting : Mr^-Musonda, Assistant Legal Counsel, Tunes Print Park ' ^^Zu^Legat Counsel, Zambia Daily Mail Limited \ q Kombe, Acting Chief State Advocate, Attorney-General’s ^FpTamwi, Legal Counsel, Electoral Commission ofZambia Mukwasa, State Advocate, Attorney General’s Chambers • JUDGMENT By Orig*11311116 gumnion^he Applicant Antf-Riggmg Zambia Limited following reiief^fehntho 1st Respondent, Zambia (by Guarani) ^^g Corporation, the 2ud Respondent, Times Print Park National . Zambia I***’ 3*1 Respondent, Zambia Daily Mail Limited, the 4th J2 RspondenMhe Electoral Co™^ ^ttorney-General:- Respondent, the «/. 4 directive that the 1", Z"1 and 3* Respond^ balanced coverage to all political parties. * ““Public media must give equal and That the allocating of unequal public air time on radi a „ , particularly the opposition by thef Respondent is control Electoral (Code of Conduct) 2006. some Pol^“l Pities, 1to the provisions of section 13 of the 2. 3. 4. 5. Costs”. At the hearing of the Originating Summons, the Learned Counsel for the Applicant relied on the Affidavit in Support and on the Skeleton Arguments -filed on J O—October, 2008 on the Further Skeleton Arguments filed on 21st October, 2008. Paragraphs 3, 4, 5, 6 and 7 of the Affidavit in Support provide that and I quote:- “3. That the recent television and radio broadcasts by the 1" Respondent clearly show that the ruling party is given more campaign air time than any other political party, especially during News lime 4. S. 6. I and Peak broadcasting time. ... .. T, . .. That the recent publications y . . Unbalanced reporting of the receive more coverage than any other polinca p ny & marked KMS1 collectively. and Respondents in their Newspapers indicate Movement for Multi-Party Democracy seems to during this campa^period. See exhibits . a -r the same to be true that allpublic television, radio tdevision) radio and newspaper That I am advised by counsel and verity behev h and in newspapers publications should allocate equal. during any campaign period. ^eve the same to be true that all print and electronic That I am advised by counsel and verdy behove meduring the campaign period, media should give fair and balanced coverage to allpou , f . r the sameto betrue thaithef Respondent '^provisions of the Electoral (Code of Conduct) That I am further advised by counsel has a duty to ensure that every one 2006 which the 4h Respondent has so far failed to 0„ the other hand in opposing indents relied on their respective Affidavits in 0™“ sle|eton Arguments filed herein. PPOsthon and on the In accordance with the Affidavit in n ^maavit in Opposition filed by the 1st Respondent, the Respondent has adhered to the provisions of the Electoral . . w and its Code of Conduct and has put a premium on accurate, feir, impartial and provision of balanced information on the election. The 1st Respondent referred to the News Bulletins attached as Exhibit “MM2” to the said Affidavit as supporting the claim that it has complied with the provisions of Section 12(1) of Code of Conduct Further that Regulation 13(1) of the Electoral (Code of Conduct 2006) has also”been complied with and that all political parties are at liberty to purchase as much air time as they wish so long as they comply with the Code of Conduct. In the Further Affidavit in Opposition filed on 20th October, 2008, it is weired on behalf of the 1st Respondent that coverage of this election has been d«ne and that the Procedures for coverage of elections have been complied * as evidenced by Exhibits “MM1” to be said Further Affidavit which that the opposition political parties and candidates have been covered. On the other hand, the Learned Counsel for the 2”- Respondent relied «»<1= Affidavit in Opposition filed on 15* October. 200S. Paragraphs 5. ? thereof provide that and I quote ** Thht in response toparagraph 4 of Summons, the ^Respondent avers that it a rent’s Affidavit in Support of Originating J4 That in response to paragraphs 5 d Originating Summons, *1^Respondent Affidavit in Support of balancedreporting of campaigns, policies me^ ^"^aper has provided fair and registered political parties ^candidates durin^^^ of alt oj the newspaper. TenZr*^^^^ each president candidate 6. 7. The Learned Counsel for the 3" Respondent also relied on the Affidavit in Opposition filed on 15th October, 2008, Paragraphs 7, 8, 9 and 10 thereof provide that and I quote:- “1* That Paragraph 4 of the Affidavit in Support is hereby denied. The 3* Respondent has been fair to all political parties in its reporting. There has not been any unbalanced reporting of the campaigns as alleged 8. 9. 10. That all political parties are also freely allowed to pay and advertise as they wish in our Newspaper. The volume of these advertisements differ from one political party to another, {fJUS crea^ing a wrong perception oj unbalanced coverage. That with regard to Paragraphs 5 and 6 of the said Affidavit in Support, I an advised by Legal Counsel, and verily believe that there has not been any breach of the Electoral (Code of Conduct) 2006 by the 3? Respondent with regard to the rule on providing fair and balanced coverage or reporting of activities of political parties. That now shown to me and exhibited hereto marketed “GCl” are and reporting of political parties activities by the 3P Respondent, equal and balanced coverage to all parties”. examples of coverage The same show a fair, The Learned Acting Chief State Advocate for the 4 and 5 Respondents relied on the Affidavit in Opposition filed on 16th October, 2008 and on the Further Affidavit in Opposition filed on 21 October, 2008. Paragraphs 5, 6 and 7 of the Affidavit filed op 16* October, 2008 provide that and I quote:- "5. 6. That the f Respondent has abides by the provision of the Electoral Coa J , nut Us duty of ensuring that every one Conduct, Statutory Instrument No. 90 of publicizes the Code ofConduct thro Sj< condUions conducive to the observance J Cgde ^fiUmvs.- i J5 (a) by the publication and distrih^ including the media. °fthe Electoral Code of Conduct t „ J Conduct to all stakeholders By the sponsoring of programmes on ^bat'eT' M ihe md thf ^grammes ofthfr^.^ opinions, membership and support from voters The %‘rPobtK°l PaW and canvas freely for ZNBC and be shared equally by the candidates a^Spondent has purchased air time on the media while others have neglected to do so. d <hem haVe aPPeared on (c) By the holding of countrywide workshops for medint „ upholding of provisions of the electoral code n • Personne^ ,n relation to the < ■ , . Paragraphs 5, 6, 7 and 8 of the Further Affidavit in Opposition filed on 22nd October, 2008 provide that and I quote:- “5. 6. 7. 8. That the 4* Respondent has established conflict management committees at both National and District level to administer the Electoral Code of Conduct as required by Section One Hundred and Eleven of the Electoral Act, No, 12 of2006. That the National Committee of Conflict Management has heard and resolved three complaints brought to its attention by the Electoral Commission from different political parties during this election sad has other matters to resolve before the vciober,3(r Presidential elections. That district committees have also heard and resolved several similar cases and continue to do so. Now shown and produced are documents to that effect marked “DNK" collectively. Respondents.” As afore-stated, the teamed Counsel for the parties relied on arguments advanced in the Skeleton Arguments. These are on reeord. Arhole 76 of the Constitution which establishes the 4“ Respondent provides that and I quote.- . . i remission to supervise the registration hereby esta of voters, to conduct Presidential and Parhameut^ e constituencies into which Zambia is divided for the p P Prifliamentary t0 (he Natumal ASSembl3>'\ Regulation 4(2) of the Electora ( f , i/rode of Conduct) 2006 provides that 311(11 quote:- • "The Commission and any member of th \ J6 promote conditions conducive to the „h e Zamb'a Police shn„ , P Obse^ce of the Co^ enf°rce the Code and shall Regulation 12(1) provides that:- "12(1) AU print and electronic media shall;. (a) (b) Provide fair and balanced reportine of th press conferences ofaU registered politi^ campaigning.” POlicieS' meetin^ raUies and P “““parties and candidates during the periods of All public television and radio broadcasters shall no. political parties for their political broadcasts. ” i,. . . hcatepubl,<: alr ^“^‘y % all The Applicant’s contention is that the 1“, 2nd and 3" Respondents have failed to comply with the provisions of Regulations 12(1) and 13(1) and (2) of the Code as they have failed to comply with the above provisions of the Code by allocating much more air time and coverage to the ruling party and.its candidate than other political parties and that the unbalanced media coverage puts opposition candidates at a disadvantage----------------------- ----------- —— The Applicant argued that the 4th Respondent has failed to ensure that the Code of Conduct is adhered to as expressly provided under Regulation 4(2) and has so far failed to enforce these Regulations. The Applicant alleged that all the Respondents have no defence for failing to adhere to the Code other than fear of loss of their jobs. That a declaration by this court will therefore, protect the Respondents to do their jobs without fear or favour. On the other hand, the Respondents disputed the above allegations ‘«tadiug that they have complied with *= P™™011 °f ReSull,*On * 13(1) Md (2) of tke Code daiming that each has provided equd « « fair and „ repotting of all the campaign po ’"ies. Each of the Respondents attached Bulletins an u ic Compliance with the Code. n Section 3 of the Electoral Act No 17 nf o J J . ,C11 ' 12 °f2006 referred to in the 4* ^ s. Respondents Skeleton Arguments provides thatand I quote:- I ’ "(1) (5) (6) exercise of its functions underlie Con^titu^ ^eCommission'' Provided that in the committed committed under the Act m accordance with the Anti-Corruption Commission Act. : ,nvcstiBate and prosecute any corrupt practice The Zambia Police Force shall enforce law and order at a polling station and undertake any criminal proceedings, subject to subsection (2) in respect of any offence committed by any person in contravention of this Act or any regulations issued under this Act". Regulation 4(2) of the Electoral (Code of Conduct) 2006 provides that: “The Commission and any member of the Zambia Police Force shall enforce the Code and shall promote conditions conducive to the - observance of the Code.” :1scontended by some of the Respondents that the Applicant has not exhausted the remedies provided under the Act and the Code for dispute resolution as no complaint has been made to either the Commission oi the Committees established for this purpose by the Act and the Code. Section 3 of the Electoral Act provides that and I quote:- , , divine electoral disputes constitute such number of Reference was also made to Regulation 16(3) of the Electoral (Code of Conduct) 2006, Statutory Instranent No. 90 of 2006 which prowdes that and quote:- “All complaints arising during the election camp . and elections shall be made to any officer where the ccnduct complained against occurred ” J8 In the Further Skeleton Arguments filed bv the a r • • contended inter alia, the conflict resolution me h PP * * , °1UtlOn mechanisms established under the d 4 Act and the Code excludes the Annii^r e APPllc&nt as only political parties and AC candidates can use the mechanisms. Regulation 14(4) cited by the Applicant provides that and I quote:- ‘‘Any candidate or political party wishing to make a complaint of unfair treatment or the course of the election campaign shall send that complaint in writing to the Commission”. ' Further that since this matter involves interpretation of a Constitutional provision, namely; Article 76, the High Court is the appropriate forum. I have seriously considered this application together with the contents of the Affidavits filed herein on behalf of the parties hereto. I have also _ J zv ika roonan+iira _Q1za1nfz\n Armimania Wilfully I U>V1 UIXV CLL C*<* V €*AAV^Vi AAA U1V A V Jjy V VH I V M1VV1VVV11 A This action raises a number of serious issues pertaining to the role of the public media, both print and electronic during an election campaign period in Zambia as enunciated in the Electoral Act and the Code of Conduct. There is no doubt that by the provision of Regulation 12(1) of the Electoral Code of Conduct whose text I have given above, all print and electronic media is mandated to provide fair and balanced reporting ofthe campaign, policies, meetings, rallies and press conferences of political parties and candidates during the campaign period. Regulation 13(1) and 2) Provides that all public television and radio broadcasters shall oca e p . air-time equally to all political partie ,• their broadcasting and that a television or 1 • Political party shall not buy more than th y thirtv minutes air-time on television o radio in one week. J9 The Applicant has by this action complained that the 1", 2« and 3* ^pendents have not complied with the above provisions during this esmpaig" Pmoi The 4 Respondent is alleged to have failed to ensure compliance by the above named Respondents with the provisions of the Code The Applicant feels that a court Order as prayed in the Originating Summons would protect the Respondents’ members of staff from fear of loss of their jobs if they complied with the provisions of the Code. Although the Respondents in this matter did not raise the question of Locus Standi or indeed, challenge the mode of commencement of these proceedings by the Applicant, the manner in which this action has been couched as evidenced by the Applicant’s prayers in the Originating Summon raises the question of locus standi and indeed, the question whether an Originating Summons is an appropriate mode of raising constitutional issues as the Applicant has done in this matter. As afore-stated, the Applicant’s complaint is that the public media, both electronic and print, has not provided fair and balanced coverage of the political campaigns of the opposition political parties as the Ruling Party and its candidate have been given much more coverage during the campaign period for the Presidential By-Election to be held on 30,h October. 2008. It is ttgiied that this is contrary to Article 76 of the Constitution of Zambia and the Electoral Code of Conduct and the Electoral Act. It is also argued that as a result, the opposition political parties and their candidates have Advantaged in their campaigns. It is also alleged that the Electoral Mission of Zambia has failed to enforce the provisions of the Act and the CA of Conduct and that the Respondents have no defence to this action. J10 That therefore, the Applicant’s prayers in n • ■ J the Originating Summons should be granted. On the other hand, the Respondents have, of course, disputed the allegation argutng that they have complied with the provisions of the Electoral Act and the Code of Conduct. The Respondents relied on the Exhibits attached to their respective Affidavits in Opposition to Support their contentions that they have complied with the Law. The Respondents also claimed that this action is an abuse of the Court process as the Applicant did not exhaust the remedies established and provided for under the Act and the Code of Conduct for resolution of complaints of unfair treatment or coverage in the course of an election campaign as no complaint was made to either the Electoral Commission or to I the Committees established there-nnder against any of the Respondents.-—— The Applicant has however, argued that Regulation 14(4) has excluded i it from the mechanism provided for under Section 3 of the Act and the Code of Conduct for resolving electoral disputes as it is neither a political party: nor a candidate in this election. Further that since the dispute involves interpretation of a constitutional provision, namely, Article 76, the High Cpurt • ■' is the appropriate forum. J It can be seen from the provision of Article 76 of the Constitute under which the Electoral Commission of Zambia is established that one of the major factions of the Commission is to supervise elections in Zambia. It can *o be seen from the provision of Regulation 16(3) of the Electoral Code of C*ta that all complaints of unfair treatment or coverage during an election carnPaign must be sent to the Electoral Commission or a Confit JU Moment Committee established under Section 3 of the Electoral Act. In * case, the complaints allege violation of Regulations 12(1) and 13(1) and p; of the Electoral (Code of Conduct) of 2006 under which ail electronic and P* media are required to provide fair and balanced reporting of all political parties and their candidates during the campaign period. The complaints also allege unequal allocation of air-time by the 1“ Respondent which is one of the television and radio broadcasters in Zambia. On the question why the Applicant did not use the electoral dispute resolution mechanism established by the Electoral Act and the Code of Conduct, the Applicant’s contention that Section 3 of the Act excludes it from utilizing the mechanisms established under Regulations 16(3) of the Code of Conduct in my view, raises the question of the Applicant’s Locus Standi that I reterred to earlier. The question raised is: if the Applicant did not come under Section 3 of the Act and the Code of Conduct, then by what mechanism has the Applicant come? I pose this question because the Electoral Act and the Code of Conduct provide own mechanisms for resolving disputes arising there-under. The Applicant by its own admission did not apply this Mechanism in this matter before coming to Court. I find that the Applicant has no locus standi before me since a party who alleges breach of the electoral Mies during the campaign period must refer the complaint to the Commission “ to a Conflict Management Committee established under that Statute. It can therefore, be said that the Applicant did not exhaust the remedies provided for W that Statute and the Code of Conduct. If the law has excluded the *»licant as argued in this case, then the Applicant has n0 locus s“dl- The above finding inevitably raises the very question of jurisdiction Court over this dispute because if the APP^t cannot come under f J12 S^0” 3 Of 'he EI'CtOraI A« and the Code „f e „ Applicant, then under what Law or rule ha • by the br°Ught? If the Applicant has come under Article 76 of the caSe, then the Applicant has used a won/ /nStltUt'On as massed in this a Petition and not an Originating SummonsTth action as and determining constitutional constitutional issues by Originating Summons iLs^ ... .. A .. , fatal to the Applicant’s case. This nncihnn „ „ . . . . B mmons. This in my considered view is 'S P°S,tw” 1S ported by what the Supreme Court stated tn the case of Newjlastlndustries ys The „f Lands_and the Attorney-General ptlnttZRj;; at Mge 55 wher(. , held that:- are satisfied that the practice and procedure in the High Court is laid down in the Lands and Deeds Registry Act The English White Book could only be resorted to if the Act was silent or hot fully comprehensive. We therefore hold that this matter having been brought to the High Court by way of Judicial Review, when it should have been commenced by the way oj an appeal, the court had no jurisdiction to make the reliefs sought This was the stand taken by this court in Chikuta v Chipata Rural Council (1) where we said that there is no case in the High Court where there is a choice between commencing an action by a writ of summons. We held in that case that where any matter is brought to the High Court by means of an originating summons when it should have been commenced by a writ, the court has no jurisdiction to make any declaration. The same comparison is applicable here. Thus, where any matter under the Lands and Deeds Registry Act, is brought to the High Court by means Judicial Review when it should have been brought by way of an appeal, the court has no jurisdiction to grant the remedies sought On this ground alone, this appeal cannot succeed. It therefore becomes unnecessary for us to consider the ground of appeal which stated that the learned judge misdirected herself in law when she held that the procedure on appeal from the decision of the Registrar of Lands and Deeds is spelt out in section 89 of Cap 185. We uphold the learned trial judge on this issue as well”. The above applies in this case where I have been requested to determine a constitutional issue by way of Originating Summons when the law requires that a constitutional issue should come by way of Petition. It follows that I have no jurisdiction to grant the remedies sought. • As can be seen from the above, the Applicant has no locus standi in this matter as it is neither a political party nor a candidate in the J J13 forthcoming Presidential By-Election. Further, the Applicant has not pleaded infringement of any rights that it has suffered as a result of the Respondents’ perceived failures to comply with the cited provisions of the Electoral Act and its Code of Conduct. What has been pleaded is that the opposition political parties have been disadvantaged by the Respondents’ perceived wrongful acts or omissions. Yet, none of the opposition political parties is a party to this action nor did any file, an Affidavit to this effect. As stated above, the two issues raised are fatal to the Applicant’s case. The same is dismissed with costs to the Respondents. The same are to be agreed and in default of such agreement, to be taxed. Leave to appeal is granted. Delivered at Lusaka, this 29th day of October 2008. H. Chibomba JUDGE