Chibambo v Electoral Commission (Election Petition 22 of 2019) [2019] MWHCCrim 5 (9 July 2019)

t Fe NX ' CAs ZG 1D FREED Se IN THE HIGH COURT OF MALAWI MZUZU REGISTRY ELECTION PETITION NO. 22 OF 2019 BETWEEN KAMUZU WALTER: CHIBAMBG ‘«, ss scsssacuscoceavaseayanmviaseren eens amans eens aan PETITIONER AND THE ELECTORAL COMMISSION ..........::cceceeeeeeeeeeeenenenee ener eeenenens 1ST RESPONDENT CATHERINE GOTANI NYAHARA ...... 0... cc ccc cee eceeeeee eaten eneneaenenes 2NP RESPONDENT CORAM: HON. JUSTICE T. R. LIGOWE P. Debwe of Counsel for the Petitioner W. Chibwe of Counsel for the 1 Respondent M. Chinkhuntha of Counsel for the 2"! Respondent F. Mwakhwawa Luwe, Court Clerk R. Luhanga, Court Reporter JUDGMENT Ligowe J Introduction 1 Kamuzu Walter Chibambo brought a petition before this court on 31°* May 2019, under section 100 of the Parliamentary and Presidential Elections Act, alleging the undue election of the 2"! Respondent into the position of member of the National Assembly for Mzimba North East Constituency during the tripartite elections held on 21‘ May 2019. I see that the petition has two limbs of allegations. The first limb are allegations against the conduct of the 2" Respondent and the second limb are allegations against the conduct, control and administration of the election by the Electoral Commission. The Petitioner alleges that the 2™ Respondent, her representatives and officials continued to campaign aggressively within 48 hours before opening of the polls, contrary to section 115 (b) (iii) of the Parliamentary and Presidential Elections Act. He alleges that they gave money and other items of property as an incentive to voters to vote for the 2"! Respondent in different areas within the Constituency, the night preceding the day of election. He also alleges alternatively, that after the close of the official campaign and on the actual voting day, the 2"! Respondent’s representatives and officials were distributing campaign materials, like party clothing, cash and t-shits marked with colours, symbols and emblems of the 2" Respondent’s political party, the Malawi Congress Party, within the Constituency. Concerning the Electoral Commission, the Petitioner alleges that the Commission has generally been negligent and unfair in its control and administration of the election of the member of the National Assembly for Mzimba North East Constituency, by failing to properly, efficiently and competently collate and transmit results as accurately as required by law; and failing to ensure that the relay of results from the polling stations was secure, accountable, accurate and verifiable. He also alleges that the Returning Officer at Ekwendeni was returning inconsistent tally sheets, for the Presiding Officers to rectify the records, for inconsistencies between the number of registered voters and actual votes cast per area, which was not the proper and credible procedure to dealing with such inconsistencies. This happened to Presiding Officers from 19 polling centres, some of which were, Ngazi, Zombwe, Emvuyeni and Matheni. The Petitioner also alleges that the Electoral Commission grossly and unjustifiably failed to discharge its constitutional duty when it failed to respond to his letter of 24" May 2019 demanding all candidates whose conduct materially affected the outcome of the election to be disqualified or the election to be nullified. The Petitioner states in the petition that specific instances of irregularities are set out in 87 sworn statements of persons who witnessed them, and that the sworn statements are in a bundle filed and marked “KC4.” The Petitioner seeks:- (a) a declaration that the non-compliance, irregularities and improprieties in the May 2019 election to the office of the Member of Parliament for Mzimba North East Constituency were substantial, significant and that they affected the result thereof; (b) a declaration that the failure by the 1 Respondent to remedy the non- compliance, irregularities and improprieties in the conduct of the aforementioned election, amounts to a gross and unjustifiable breach of section 76 of the Constitution and renders the whole election in the said Constituency a nullity; (c) a declaration that Catherine Gotani Nyahara was not validly elected as a member of the National Assembly for Mzimba North East Constituency and that the 1*t Respondent’s declaration is null and void; and (d) an order that costs of the petition be for the Petitioner. The Evidence 7 The evidence in this case has been by way of sworn statements. The statement of Kamuzu Walter Chibambo sworn on 3% June 2019 verifies the contents of the petition. The statement of Peter Nsini sworn on 31‘ May 2019 states that he was the monitor for the Petitioner’s political party, Peoples Transformation Party, at different polling stations within the Constituency. He states that after the closure of the official campaign period, Olipa Muyaba, a candidate for UTM went around Enyizini distributing footballs to Nuclear Enyizini Socials and Kachenga football teams respectively. That the 2" Respondent used to move around the polling stations including Enyizini area within the Constituency, influencing voters to vote for her. That the 2" Respondent was distributing campaign materials i.e. t-shirts and zitenje on 19" May 2019 after the closure of the campaign period. Harold Saka of the Democratic Progressive Party was distributing campaign materials on 10 11 the polling day and was later arrested by the Police. And, the 2"4 Respondent distributed food to voters as Emsizini before they went to cast votes, Owen Chavula was also a monitor for the Petitioner. He states in his statement sworn on 31% May 2019 that the Presiding Officer for Ekwendeni Community Day Secondary School was following and aiding voters, and consequently deciding candidates for voters, when they entered the polling booth. He also states that Ben Kalua and Shupo Kumwenda, members of Malawi Congress Party, used to guide voters by coercing them to vote for the Malawi Congress Party candidate and that they ran away when queried. He also states that he observed inconsistencies in the counting of votes and recording of the same at Ngazi polling station. The total votes for Edgar Tembo, a candidate for the Democratic Progressive Party were recorded as 887 in number on the records sheet instead of 880. The sworn statements of Kamuzu Walter Chibambo, Peter Nsini and Owen Chavula were filed together with the petition on 31*t May 2019, but the bundle marked “KC4” containing sworn statements of 87 people was not filed together as the petition purports to portray. During the hearing, Counsel for the petitioner withdrew from bringing the said KC4 anymore and any reference to it in the petition. The petitioner filed supplementary sworn statements sworn by Dygress Zgambo, the Petitioner’s monitor at Chimbongondo Primary School polling centre and George Kamthagwara Jere, another monitor at Ekwendeni CCAP School polling centre. Dygress Zgambo deposes that Catherine Gottani Nyahara invited chiefs and their subjects and she dished out money to them. That Catherine Gotani Nyahara ferried people, patients and guardians from Ekwendeni Hospital to Baula and Mlimo polling centres on the polling day. And, that the MCP Constituency Chairman for Mzimba North East was telling voters to vote for Catherine Gotani Nyahara. The copy of George Kamthagwara Jere’s sworn statement on the court file was not attested by any Commissioner for Oaths. I suppose the one that was served was duly attested, because Counsel for the Respondents did not raise any issue with regard to it. In the sworn 12 13 14 statement George Kamthagwara Jere deposes that the Presiding Officer for Stream 1 at Ekwendeni CCAP School was directing voters to vote for Catherine Gotani Nyahara by telling them to vote for the light-complexioned lady who was putting on a duku. And, that some people such as Thlupo Kumwenda and Ben Kalua were dishing out money to voters to induce them to vote for Catherine Gotani Nyahara. The Respondents rely on the statement sworn by Gerald Mkandawire on 12" June 2019, the statement sworn by McMillan Matewere, Gerald Dube and Ronald Mwale on 10" June 2019, the statement sworn by Ben Kalua and Shupo Kumwneda on 10" June 2019 and the statement sworn by Catherine Gotani Nyahara on 13'" June 2019. Gerald Mkandawire states that he was the Constituency Returning Officer for Mzimba North East Constituency and he was responsible for: - (a) receiving the results from the Presiding Officers from all polling stations within the Constituency; (b) handing over the results to the Auditors appointed by the 1“ Respondent for verification and approval; (c) instructing the Presiding Officers to announce the result for the specific stations or polling centres they were managing; (d) ensuring that the Presiding Officers account for the electoral materials that were in the specific centres; (e) instructing the Data Officer to enter the data from the respective polling stations; announcing and thereafter posting final results of the Constituency on Notice Boards at the Tally Centre in Ekwendeni; and (f) entering the final results in Form 71b and 72b for onward transmission to the Main Tally Centre in Blantyre. Gerald Mkandawire further deposes that he was based at the Tally Centre set up at Ekwendeni, where all the results for the 43 centres within the Constituency were being submitted by the Presiding Officers. The procedures employed were that: (a) It was the duty of the Presiding Officers of the respective centres to bring the results to the Tally Centre accompanied by the respective security personnel of those centres. (b) The Presiding Officers would deliver Result Tally Sheets sealed in plastic carrier bags directly to him. (c) He would then verify that the carrier bags had not been tampered with by ensuring that the seals were intact, in the presence of party/ candidate representatives and all observers at the Tally Centre. (d) Once satisfied, the carrier bags would be handed over to the Auditors appointed by the Electoral Commission who also cross checked that they had not been tampered with. oO (e) When satisfied, the Auditor was opening the carrier bags and inspect the result sheets (Form 66b) prepared by the centre. The Auditor was checking whether the Tally Sheets had been balanced or not. If balanced they would proceed to hand over the sheets to the Presiding Officers to read out the results to the entourage present at the Tally Centre. But if a Tally Sheet did not balance, the Auditor would return it to the Presiding Officer concerned to balance it. Balancing was by comparing the number of ballot papers received, with the number of unused ballot papers, the number of cancelled/ spoilt ballot papers, the number of null and void votes and the total number of valid votes. (f) Once the Presiding Officer has read out the results to the people present at the Tally Centre, which included the observers, the media and _ party o representatives, and there has been no queries from the party representatives, the Tally Sheets were given back to the Returning Officer to send to the Data Officer for scanning and transmission to the Main Tally Centre in Blantyre. (g) The Returning Officer would then prepare Form 71b and 72b which would as well be sent to the Main Tally Centre in Blantyre with copies to the various monitors present at the centre. The monitors would also sign on the said Forms. 15 Gerald Mkandawire further deposes that he was at the Tally Centre for three days during which the 43 Tally Sheets from the 43 polling centres of the Constituency were processed without any queries from the party representatives. During these three days, the petitioner’s monitors were hardly in the centre despite having been duly accredited to be there. Gerald Mkandawire further states that some Result Sheets were returned to Presiding Officers by Auditors because they could not balance. Some of them were from Negazi, Zombwe and Emvyuyeni polling stations. These were stations which had more than one stream, which made it difficult for the respective Presiding Officers and Assistant Presiding Officers to balance. The Electoral Commission had set up a system that ensured that all ballot papers received at a particular centre balanced with the number of unused ballot papers, the number of cancelled/ spoilt ballot papers, the number of null and void votes and the total number of valid votes. The Presiding Officers were supposed to fill in the particular rows in the Tally Sheets provided for inserting figures for (i) the number of unused ballot papers, (ii) the number of cancelled/ spoilt ballot papers, (iii) the number of null and void votes and (iv) the total number of valid votes. The total of the figures on these rows were supposed to balance with the figure on the row provided for the number of ballot papers received. Gerald Mkandawire states that the stated rows, as much as they were on the same form, did not in any way affect the actual results the various candidates got at the respective polling stations. Such that, the balancing exercise did not in any way affect the results of each candidate at a particular centre. After the Tally Sheets that were returned had been properly completed by the Presiding Officers in full view of various monitors and observers, they were again read out aloud by the respective Presiding Officers before being sent to the Data Officer for scanning and transmission to the Main Tally Centre in Blantyre. This was done to ensure that the initial results which had been verified were the same as on the now, balanced Tally Sheets. Gerald Mkandawire deposes that after all results were verified, the official results for the Parliamentary Election in Mzimba North East Constituency were as follows: 2] 22 CANDIDATE PARTY VOTES Golden Highpower Tennyson Chakwera UDF 262 Kamuzu Chibambo PETRA 5 320 Olipa Myaba Chiluba UTM 5 688 Catherine Gotani Hara MCP 9 529 Stanley Kenneneka Ngwira Independent 106 Martha G Nyangulu PP 115 Kelvin Inkosana Sato Independent 488 Edgar Tembo DPP 8 101 The 2™ Respondent was declared winner of the election and Gerald Mkandawire exhibits Forms 71b and 72b marked ““GM2” and “GM3” respectively. McMillan Matewere, Gerald Dube and Ronald Mwale state that they were the candidate representatives for the 2" Respondent at the Mzimba North East Constituency Tally Centre at Ekwendeni. Their duty was to verify that: (a) Tally Result Sheets, also known as Form 66b, from all the 43 centres reflected the correct information of results from each of the centres; (b) all ballot papers used and unused at the various centres were properly accounted for by the Presiding Officers from the respective centres; and (c) all information regarding the electoral process was properly recorded and transmitted to the Main Tally Centre at COMESA Hall in Blantyre. MeMillan Matewere, Gerald Dube and Ronald Mwale repeat the same procedure for receiving and managing results as given by Gerald Mkandawire. On their part they depose that they specifically ensured that the carrier bags for the results were delivered sealed and intact. And, once opened, they would cross check the results with what was sent to them by the Malawi Congress Party monitors at the respective centres. They were also at the 8 23 24 Tally Centre for three days and during this time, all the 43 Tally Result Sheets from the polling centres, tallied with the copies of the Tally Result Sheets obtained by their monitors from the respective centres. They also state that the Auditors returned some Tally Result Sheets for polling stations like Ngazi, Zombwe and Matheni, which they were surprised about, but they were satisfied that the balancing exercise did not affect the results for each candidate at a particular centre. Regarding the evidence given by Owen Chavula about Edgar Tembo’s votes at Ngazi polling station, they say that the Tally Sheet they inspected, verified by Masautso Banda, the MCP monitor at the station, shows that Edgar Tembo got 887 votes. They exhibit the Duplicate Tally Results Sheet marked “AB1” and point out that it was actually also signed by the monitor for Peoples Transformation Party (PETRA). The original of “AB1” was brought for inspection at the hearing and this court confirmed that it records that Edgar Tembo got 887 votes, and three representatives of PETRA signed for it, one of whom, whose name is very legible is Flyton Nyirenda. Ben Kalua and Shupo Kumwneda depose in their sworn statement that they were roving observers for Malawi Congress Party in the Mzimba North East Constituency, duly accredited by the Electoral Commission, to visit and monitor the electoral process at all 43 centres in the Constituency. They depose that they were also campaign directors for the 2"4 Respondent and were with her at all campaign trails in the Constituency. Their campaign involved distributing Malawi Congress Party regalia including caps, t-shits and raw cloth (chitenje) at rallies within the Constituency. But by 14" May 2019, they had run out of the regalia. Their new consignment of regalia had been impounded by Malawi Revenue Authority, over issues of declaration of duty, until 20" May 2019 when it was released. So, it was not possible for the 2"? Respondent or any of her representatives to distribute such regalia as claimed by Peter Nsini in his sworn statement. They state further that the 24 Respondent went back to Mzuzu after the close of the official campaign on 18" May 2019. She only came back to vote at Baula polling centre escorted by Shupo Kumwenda and went back to Mzuzu. She did not interact with any supporters or voters by organizing meals for them as alleged or at all. 25 26 27 28 Ben Kalua and Shupo Kumwenda further state that no person by the name of Harold Saka was arrested by the police. They received a report from MCP monitors at Ekwendeni CCAP Primary School polling centre, that a Mr Munthali had been arrested for trying to influence voters at the centre by distributing DPP t-shirts. They took the man to police where he was cautioned, but their investigations afterwards revealed that there was no tangible evidence against him and they informed the police and he was released. Regarding the Presiding Officer at Exwendeni Community Day Secondary School, they state that this is where Ben Kalua registered and voted, but they saw nothing suspicious about the Presiding Officer and did not receive any report of any activity by the Presiding Officer as raised by Owen Chavula in his sworn statement. They further argue that if there was any such activity Owen Chavula would have lodged a complaint but he did not. Ben Kalua and Shupo Kumwenda further contend that Owen Chavula did not appreciate their roles as roving monitors, that they were simply observers and that they did not at any point coerce any voters to vote for any particular candidate or even interact with them. No one could dare do that with the system and the security that was in place. Owen Chavula has not stated the number and the names of the voters that were so influenced. Catherine Gotani Nyahara states in her statement that during the whole campaign and voting period she conducted herself within the law and strictly adhered to the rules and regulations the Electoral Commission had set in order to have a free and fair election. She repeats the fact that, as of 14"" May 2019, she had run out of her party regalia and the only other regalia she was expecting was what Malawi Congress Party had ordered from China but had been impounded by the Malawi Revenue Authority in Lilongwe and only released on 20"" May 2019 around lunch hour. The materials were plain and needed to be screen printed with the party logo before anyone distributed them. She or any of her representatives could not distribute such regalia after the campaign period was closed on 18" May 2019. 10 29 30 31 32 33 34 Catherine Gotani Nyahara also denies distributing any money to any person to influence them to vote for her during the campaign period or after. She states like Ben Kalua and Shupo Kumwenda that after the campaign period was closed on 18" May 2019, she went to Mzuzu and only came to Baula on 21*' May 2019 to vote and went back to Mzuzu. She or her representatives did not distribute any meals to voters. Kamuzu Walter Chibambo purportedly swore a statement on 17" June 2019 in reply to Ben Kalua and Shupo Kumwenda’s sworn statement and another statement in reply to the 2™4 Respondent’s sworn statement. This court noted that the deponent’s signature was different from the signature in the sworn statement of 3" June 2019 and so doubted they were also signed by Kamuzu Walter Chibambo. Counsel made private inquiries with his clients and then decided to withdraw both sworn statements in reply. The petitioner also filed a statement in reply sworn by Peter Nsini on 17" June 2019. He refers to the 2"! Respondent’s sworn statement in opposition and states that the 2"4 Respondent was declared winner without the Electoral Commission resolving irregularities in the Constituency. For the most part of the sworn statement he makes no comment to various paragraphs of the 2" Respondent’s sworn statement and then asserts that she was distributing money to voters after closure of the official campaign period. The petitioner also filed a statement sworn by Owen Chavula on 17" June 2019 in reply to the 2" Respondent’s sworn statements in the same terms as the statement sworn by Peter Nsini in reply. The petitioner also filed a statement sworn by George Kamthagwara Jere on 17" June 2019 in reply to the 2" Respondent’s sworn statements in the same terms as the statements sworn by Peter Nsini and Owen Chavula in reply. And he filed a statement sworn by Dygress Zgambo on 17" June 2019 in reply in exactly the same terms as the statements sworn by Peter Nsini, Owen Chavula and George Kamthagwara Jere in reply. That is all about the evidence upon which this petition has to be decided. 11 The Arguments 35 36 Counsel for the petitioner adopted the sworn statements in support of the petition and in reply to the Respondents’ sworn statements in opposition, as well as his skeleton arguments filed on 17" June 2019. In the skeleton arguments he outlines the law as provided in sections 56 (1), 57, 115 (b) and (g) and 118 (1) of the Parliamentary and Presidential Elections Act. Counsel argues that in the present case, the 2" Respondent, her representatives and officials continued to aggressively campaign within 48 hours before opening of the poll and/ or on the actual day of voting which is contrary to section 57 of the Parliamentary and Presidential Elections Act. He argues alternatively, that after the close of the official campaign period and on the actual voting day, the 2"! Respondent’s representatives and officials were distributing campaign materials. He further argues that there is extensive evidence that voters in different areas with the Constituency were given money and other items as an incentive to vote for the 2" Respondent, after the close of campaign and the night preceding the election day. Counsel further argues that inconsistent Tally Sheets were being returned by the Returning Officer at Ekwendeni in respect of 19 polling centres, including Ngazi, Zombwe, Emvuyeni and Matheni, for Presiding Officers to rectify inconsistencies between the number of voters and actual votes cast per area, which was not the proper procedure for dealing with such inconsistencies. Lastly Counsel argues that campaigning within 48 hours before opening of the poll on the first day is an offence and prays for the reliefs sought by this petition. Counsel for the Respondent also filed skeleton arguments and adopted them. In his arguments he first tackles the burden of proof, arguing that the party who asserts the affirmative of an issue has the burden to prove it. He cites Commercial Bank of Malawi v. Mhango [2002-2003] MLR 43 at 45 where the Supreme Court of Appeal said:- “Ordinarily, the law is that the burden of proof lies on a party who substantially asserts the affirmative of the issue. The principle was stated in the case of Robins v. National Trust Co., (1927) AC 515, 520 that the burden of proof in any particular case depends on the circumstances in which the claim arises. In general, the rule is Ei qui affirmat non qui negat incumbit probatio which means the burden of proof lies on him who alleges, and not him who denies. Lord Megham, again, in 12 37 38 Constantine Line v. Imperial Smelting Corporation (1943) A. C. 154, 174 stated that it is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons. The judge said that the rule is adopted principally because it is but just that he who invokes the aid of the law should be the first to prove his case because in the nature of things, a negative is more difficult to establish than an affirmative.” Counsel for the Respondents further submits that the standard of proof required in election matters seems higher than the balance of probabilities in ordinary civil cases, citing Dr Kiiza Besigye v. Yoweri K. Museveni, Supreme Court Election Petition No. 01 of 2001 (Uganda) where it was held that the proof must never leave the court in doubt as to what is sought to be proved, though it should not be beyond reasonable doubt as is the case with criminal matters. He also cites Patrick Kamkwatira v. Electoral Commission and another [2014] MLR 249. Counsel also outlines other principles the court has to follow when faced with a prayer to annul an election, as follows: - (a) (b) (c) "Elections should not be lightly set aside simply because there have been informalities and errors." Gunn v. Sharpe [1974] Q. B. 808 "The non observance of the rules or forms which is to render the election invalid, must be so great as to amount to a conducting of the election in a manner contrary to the principle of an election by ballot, and must be so great as to satisfy the tribunal that it did affect or might have affected the majority of the voters, or in other words, the result of the election." Woodward v. Sarsons (1875) L. R. 10 at 733 "An election is not to be upset for an informality or for a triviality. It is not to be upset because the clock at one of the polling booths was five minutes too late or because some of the voting papers were not delivered in a proper way. The objection must be something substantial, something calculated really to affect the result of the election." Grove J in Hackney Case, Gill v. Reed and Holms (1874) 2 O'M&H 77. 13 39 40 41 42 (d) "An election will be invalidated if the irregularity, mistake or error complained of did affect the result of the election." Gondwe and another v. Gotani-Nyahara [2005] MLR 121 (SCA), Electoral Commission and another v. Makandawire [2011] MLR 47 (SCA). Looking at the evidence before this court Counsel for the Respondents contends that the petitioner has failed to substantiate his allegations that there was any campaigning by the 2™ Respondent after close of the official campaign period and that there were irregularities concerning the counting of votes at the polling centres in the Constituency. Peter Nsini does not mention the name of the person who was giving out the t-shirts and the cash and the people who received. He does not even give the number of the people who were affected by the exercise. Counsel further argues that Owen Chavula does not mention the voters and the name of the Presiding Officer of Ekwendeni Community Day Secondary School who guided the voters and which candidate he told them to vote for. He also does not mention the voters Ben Kalua and Shupo Kumwenda coerced to vote for the 2™ Respondent and how many they were. None of the said voters were brought to testify before this court. Regarding inconsistencies on the Tally Sheets Counsel argues that none of the petitioner's witnesses has testified on this. Owen Chavula only makes an assertion with regard to the votes of Edgar Tembo at Ngazi polling station which cannot stand in the face of the evidence given by McMillan Matewere, Gerald Dube and Ronald Mwale. Every _ party and candidate had monitors at all the polling stations in the Constituency but the petitioner has not brought his monitor at Ngazi to testify. Counsel further contends that the evidence of Gerald Mkandawire has not been challenged by the petitioner that the results of all the polling centres were not affected in any way. Counsel finally argues that the petitioner has not only failed to substantiate his allegations in the petition as against both the Ist and 2nd Respondents but also how they would affect the result of the election in the Constituency. 14 43 Oo 44 Q 45 The Law It is true that section 57 of the Parliamentary and Presidential Elections Act allows political parties to campaign in public for a period of two months closing forty eight hours before the opening of the poll on the first polling day and that campaigning within the said 48 hours is an offence under section 115 (b) (iii), punishable with a fine of K500 000 and imprisonment for two years under section 118 (1). Section 118 provides for the general penalty for all offences under the Parliamentary and Presidential Elections Act. Section 118 (2) further provides that: - “In addition to the penalty under subsection (1) the court may make an order — (a) where applicable barring the convicted person from performing the duties of his office in connection with the election; (b) suspending the right of the convicted person to vote in the election or annulling the vote cast by such person; and (c) having regard to the nature of the activity constituting the offence, giving such directions as the court considers to be warranted in the circumstances.” Section 115 provides for offences in subsection (a) in relation to the registration of voters; in subsection (b) in relation to campaigning for elections; subsection (c) in relation to voting, subsection (d) in relation to the signing of nomination papers; subsection (e) in relation to the handling of any document relating to the election; subsection (f) in relation to submitting complaints and responding to them and questioning decisions thereon by a competent person or body in bad faith; and subsection (g) offences relating to neglecting to fulfil obligations imposed by the Act without justification. Section 100 of the Act provides that :- (1) A complaint alleging an undue return or an undue election of a person as a member of the National Assembly or to the Office of the President by reason of irregularity or any other cause whatsoever shall be presented by way of petition directly to the High Court within seven days including Saturday, 15 Sunday and a public holiday, of the declaration of the result of the election in the name of the person — (a) Claiming to have had a right to be elected at that election; or (b) Alleging himself to have been candidate at such election. (2) In proceedings with respect to a petition under subsection (1), the Commission shall be joined as a respondent. (3) If, on the hearing of a petition presented under subsection (1), the High Court makes and order declaring- (a) that the member of the National Assembly or the President, as the case may be, was duly elected, such election shall be and remain valid as if no petition had been presented against his election; or (b) that the member of the National Assembly or the President, as the case may be, was not duly elected, the Registrar of the High Court shall forthwith give notice of that fact to the Commission which shall publish a notice in the Gazette stating the effect of the order of the High Court. (4) Pursuant to an order of the High Court under subsection (3) (b) declaring that the member of the National Assembly or the President, as the case may be, was not duly elected, a fresh election for the seat of the member of the National Assembly or to the office of the President, as the case may be, shall be held in accordance with this Act. (5) A declaration by the High Court under subsection (3) (b) shall not invalidate anything done by the President before that declaration. 46 My observation is that the issues raised by the present petition could as well be offences under section 115 of the Act. However, the fact that sections 115 and 118 provide for the manner of dealing with such offences, does not preclude any petition under section 100 alleging an undue return or an undue election of a person as a member of the National Assembly or to the Office of the President on grounds that constitute offences under the said section 115. A petition under section 100 may be brought on grounds of irregularity or any other cause whatsoever. All that is required is that the irregularity or other reason 16 47 48 49 50 must have affected the result of the election, for the court to get to order that the member of the National Assembly or the President, as the case may be, was not duly elected. The Supreme Court of Appeal stated in Gondwe and another v. Gotani-Nyahara [2005] MLR 121 at 126 following Gama v. Omar and Malawi Electoral Commission MSCA Civil Appeal No. 24 of 1999 that:- "The law in this country with regard to disputed elections is simple. It goes like this: An election will be invalidated if the irregularity, mistake or error complained of did affect the result of the election.” Needless to say that the party alleging the undue return of the election or the undue election of the member of the National Assembly or the President has the legal burden to prove it. The Supreme Court of Appeal held in Electoral Commission and another v. Mkandawire [2011] MLR 47 unlike the case of Dr Kiiza Besigye v. Yoweri Museveni (op cit) that the standard of proof is on a balance of probabilities. It is the same standard the High Court used in Patrick Kamkwatira v. Electoral Commission and another [2014] MLR 249. Proof on a balance of probabilities means to show to the court that what is claimed is more probable than not. See Msachi v. Attorney General [1991] 14 MLR 287 and Suleman v. National Insurance Co. Ltd [1996] MLR 68. In this case the petitioner alleges aggressive campaign by the 2" Respondent, her representatives and officials within 48 hours before opening of the polls and on the actual polling day. I have carefully considered the statements sworn by Peter Nsini, Owen Chavula, Dygress Zgambo and George Kamthagwara Jere as against the statements sworn by Ben Kalua and Shupo Kumwenda and Catherine Gotani Nyahara. | find no sufficient proof that the the 2"? Respondent moved around Enyizini area influencing voters to vote for her, or that she distributed campaign materials after close of the campaign period. | also find no sufficient proof that Ben Kalua and Shupo Kumwenda coerced voters to vote for a Malawi Congress Party Candidate, or that the Malawi Congress Party Constituency Chairman for Mzimba North East told any voters to vote for the 2"4 Respondent. 17 51 52 53 54 The petitioner also alleges that the 2™ Respondent, her representatives and officials gave money and other items of property to voters in the Consituency the night before the election. I have also carefully considered the statements sworn by Peter Nsini, Owen Chavula, Dygress Zagmbo and George Kamthagwara Jere as against the statements sworn by Ben Kalua and Shupo Kumwenda and Catherine Gotani Nyahara. I also find no sufficient proof that the 2" Respondent distributed food to voters before they went to vote or that she invited chiefs and their subjects and dished out money to them. There is also no sufficient proof that Shupo Kumwenda and Ben Kalua dished out money to voters to induce them to vote for Catherine Gotani Nyahara. Owen Chavula mentions of Ben Kalua and Shupo Kumwenda guiding voters and coercing them to vote for the candidate for Malawi Congress Party. Dygress Zgambo also mentions of the 2" Respondent ferrying patients and guardians from Ekwendeni Hospital to Baula and Mlimo polling centres. I doubt if this is in any way connected to campaigning after close of the official campaign period or giving handouts. They were not pleaded in the petition and no sufficient proof has been given about them. The petitioner alleges that the Electoral Commission was generally negligent and unfair in its control and administration of the election of the member of the National Assembly of Mzimba North East Constituency, by failing to properly, efficiently and competently collate and transmit results as accurately as required by law. He also alleges that the Returning Officer at Ekwendeni was returning inconsistent tally sheets, for Presiding Officers to rectify inconsistencies between the number of registered voters and actual votes cast. This happened to Presiding Officers of 19 polling centres including Ngazi, Zombwe, Emvuyeni and Matheni and it was not the proper way to dealing with the inconsistencies. I have carefully considered the sworn statements of Kamuzu Walter Chibambo, Peter Nsini, Owen Chavula, Dygress Zgambo and George Kamthagwara Jere as against the sworn statements of Gerald Mkandawire, McMillan Matewere, Gerald Dube and Ronald Mwale and Ben Kalua and Shupo Kumwenda. None of the Petitioner's witnesses has 18 J 56 a7 58 59 disputed the process for handling results explained by Gerald Mkandawire. I find no sufficient proof that the Presiding Officer at Ekwendeni Community Day Secondary School decided any candidate for any voter he or she assisted. The name of the Presiding Officer was not mentioned or the voters he or she assisted, how many they were and which candidate he or she decided for them. I also find no sufficient proof for any inconsistencies in the counting and recording of votes at Ngazi polling centre. The reliable evidence before this court is that Edagr Tembo got 887 votes and not 880 votes claimed by Owen Chavula. There is also no sufficient proof that the Presiding Officer at Ekwendeni CCAP School directed voters to vote for the 2nd Respondent. Not even the number of voters who were so directed. The petitioner also alleges that the Electoral Commission grossly and unjustifiably failed to discharge its constitutional duty when it failed to respond to his letter of 24"" May 2019 demanding all candidates whose conduct materially affected the outcome of the election to be disqualified or the election to be nullified, but the Petitioner has brought no evidence with regard to this. None of the Petitioner's allegations has been sufficiently proved, let alone how the same affected the result of the election in this case. I therefore have no reason to make any of the declarations sought by the petitioner. The petition is dismissed with costs. Delivered in open court this 9" day of July 2019. 19