Christabel Ngimbu v Kakoma Charles Wahuma and Anor (APPEAL NO. 019/2013; SCZ/8/244/2012) [2013] ZMSC 95 (10 October 2013)

J1 IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 019/2013 SCZ/8/244/2012 IN THE MATTER OF: AND IN THE MATTER OF: Article 72( 1) of the Constitution of the Republic of Zambia Sections 63, 81 to 86 and 93 of the Electoral Act No . 12 of 2006 AND IN THE MATTER OF: Zambezi West Parliamentary Elections held in Zambia AND IN THE MATTER OF: The Electoral Petition Rules No. 426 of 1968 on 20th September, 2011 BETWEEN: CHRISTABEL NGIMBU APPELLANT AND KAKOMA CHARLES WAHUMA ELECTORAL COMMISSION 1 ST RESPONDENT 2ND RESPONDENT CORAM: Chibesakunda, Ag. CJ, Mwanamwambwa, Phiri, Wanki and Muyovwe, JJS on 21 st May, 2013 and 10th October, 2013 FOR THE APPELLANT: FOR THE 18 T RESPONDENT: A. D. L Mumba of AD Mwansa Mumba and Associates. E. Phiri of Lesa Lungu and Associates. JUDGMENT Chibesakunda, Ag. C. J., delivered the Judgment of the Court. • Cases referred to: 1. Matildah Macarius Mutale v. Sebio Mukuka and Another, Appeal No. 45/2003; 2. Michael Mabenga v. Sikota Wina and Others, (2003) Z. R 11 O; 3. Josephat Mlewa v. Whitman (1995-1997) Z. R 171; 4. Mubita Mwangala v. lnonge Mutukwa Wina, Appeal No. 80 of 2007; 5. Nkhata and Others v. Attorney-General, (1966) Z. R 24; 6. Akashambatwa Mbikusita Lewanika and Others v. Fredrick Jacob Titus Chiluba, (1998) Z. R 79; and • ,. .. ., I J2 7. Reuben Mtolo Phiri v. Lameck Mangani, SCZ Judgment No. 2 of · 2013. Legislation Referred to: 1. The Constitution of Zambia, Chapter 1 of the Laws of Zambia; 2. The Electoral Act No. 12 of 2006; and 3. The Electoral (Code of Conduct) Regulations, 2011. This is an appeal from the decision of the High Court dismissing the election petition commenced by the Appellant against the election of the 1st Respondent as Member of Parliament for Zambezi West Constituency . The history of this matter 1s that the Appellant was a candidate in the Zambezi West Parliamentary Elections which were held on 20 th September, 2011. The Appellant was sponsored by the Patriotic Front (hereinafter referred to as "the PF"). Other candidates in the aforesaid elections were the 1st Respondent, who stood on the United Party for National Development (hereinafter referred to as "the UPND") ticket, and Prisca Kucheka, who contested the elections on the Movement for Multiparty Democracy (hereinafter referred to as "the MMD") ticket . The Returning Officer declared the 1st Respondent as duly elected Member of Parliament for Zambezi West Constituency. The results as declared by the Returning Officer were as follows: • • 1st Respondent Prisca Kucheka Appellant UPND MMD PF 2,675 votes 1,647 votes 535 votes J3 Dissatisfied with the declaration of the 1st Respondent as duly elected Member of Parliament for Zambezi West Constituency, the Appellant commenced an election petition in the High Court. In the said petition, the Appellant prayed for the following reliefs: • (i) a declaration that the election of the 1st Respondent as Member of Parliament for Zambezi West Parliamentary Constituency was null and void; (ii) a declaration that the 1st Respondent was not duly elected; (iii) a declaration that the illegal practices committed by the 1 st Respondent and/ or his agents materially so affected the election result that the same ought to be nullified; and (iv) an order that the costs occasioned by the petition be borne by the Respondents. The Appellant's petition contained 7 allegations which were outlined in paragraph 4 of the petition (see page 82-83 of the record • of appeal). In this judgment, we will not reproduce all the 7 allegations. We will only replicate the allegations on which the findings of the learned trial Judge have been questioned by the Appellant in this appeal. These allegations are contained in paragraphs 4(c), 4(d) and 4(g) of the petition. J4 In paragraph 4(c) of the p etition, the Appellant claimed that between 18th August, 2011 and 20th September, 2011, the 1st Respondent, at a public rally in Sachala area of Zambezi West, gave out, to local farmers , a Water Pump which was a government property and clearly labeled "Gender-in-Development". The evidence to support this allegation came from the Appellant and PW6. The Appellant's evidence on this allegation was that when she went to Sachala area, she found a Water Pump which had been donated by the 1st Respondent. That the Pump was labeled "Gender-in-Development". With regard to PW6, his testimony, was that on 21 st August, 2011, he attended a meeting at Sachala area which was addressed by the 1st Respondent. That at that meeting, the 1st Respondent announced that he had bought a Water Pump for the people of Sachala area. That the 1st Respondent then called on the people to vote for him. • On the allegation contained in paragraph 4(d) of the petition, the that between 18th August, 2011 and 20th Appellant alleged September, 2011 , the 1st Respondent, at a public rally in Chinyingi area of Zambezi West, promised the electorate that if they voted for him, he would give them a Hammer Mill. That the 1st Respondent has since delivered the Hammer Mill to Chinyingi area. The evidence to support this allegation was adduced from the Appellant herself, PW3 and PW4. JS The Appellant's evidence on this allegation was that she attended the 1st Respondent's campaign rally which was held at Chinyingi area on 20th August, 2011. That at the said rally, the 1st Respondent informed the people that he had bought them a Hammer Mill using his own money. That the 1st Respondent further told the people that he had bought the Hammer Mill for them so that they could vote for him. That the 1st Respondent told the people that the Hammer Mill was at the Zambezi Barna and that • they could collect it any time. That after the rally, some members of the community followed the 1st Respondent to Zambezi Barna and collected the Hammer Mill. That she was part of the group that went to collect the Hammer Mill from Zambezi Barna. That the Hammer Mill was taken to the house of a Mr. Zorn bela. That the Hammer Mill stayed at Mr. Zombela's house from 13th September, to 20th September, 2011 , when it was finally taken to Chinyingi area. • The evidence of PW3 and PW4 on the allegation contained in paragraph 4(d) was very similar. The gist of the testimonies of the two witnesses was that on 20 th August, 2011 , they attended a campaign rally at Chinyingi High School. That this rally was addressed by the 1st Respondent. That at the said rally, the 1st Respondent informed the people that, although they hated him, he had bought them a Hammer Mill. That the 1st Respondent then asked the people to vote for him. PW3 added that he was one of the members of the Chinyingi community, who went to Zambezi Barna to collect the Hammer Mill J6 on 13th September, 2011. That they kept the Hammer Mill at Mr. Douglas Zombela's house and only collected it on 20 th September, 2 011. Coming to the allegation contained in paragraph 4(g) of the petition, the Appellant asserted that between the 18 th August, 2011 and 20 th September, 2011, the 1st Respondent gave out a Payphone for public use at a campaign rally held in Likungu area. To buttress this allegation the Appellant testified on her own behalf and called PW2. The evidence of the Appellant was that when she went to Likungu area, she found a Payphone at Likungu Basic School. That she asked PW2, the Headmaster of that school, about the Payphone and PW2 told her that the Payphone was a gift from the 1st Respondent. That the Payphone was donated to the school on 25 th August, 2011. With regard to PW2, his evidence was that he was the School • Manager for Likungu Middle Basic School. He told the trial court that on 25 th August, 2011 , the 1st Respondent addressed a campaign rally at t h e school. That at the said rally, the 1st Respondent donated a Payphone to the public. That after making the said donation, the 1st Respondent . even signed in the school's visitors' book. In response to the allegations contained in the petition, the 1st Respondent filed an answer where he denied all the allegations. In J7 denying the allegations, the 1s t Respondent testified on his own behalf and also called 19 other witnesses . With regard to the allegation under paragraph 4(c) of the petition, the evidence in answer came from the 1st Respondent and RW5. The 1st Respondent's evidence was that he never gave a Water Pun1 p to people at the rally he held at Sachala area. That the people at Sachala area had applied for a Water Pump from Cabinet Office . That at that rally he only explained to the people that their • application had succeeded. It was his further testimony that he had no hand in purchasing the Water Pump. That the Water Pump was purchased by the Government through Gender in Development at Cabinet Office. • As for RW5 , his testimony was that his area, Sachala, applied for a Water Pump through the office of the 1st Respondent, who was area Member of Parliament at the time. That on 18th July, 2011 the community got a response from the 1st Respondent informing them that the Water Pump was at the 1s t Respondent's office. That the community collected the Water Pump on 20 th July, 2011. In answer to the allegation under paragraph 4(d) of the petition, the 1st Respondent testified on his own behalf and called RW3 to buttress his evidence. In sum , the evidence by the 1st Respondent was that the women of Chinyingi, through the Chinyingi Women 's Club , applied for a Hammer Mill from Cabinet Office, Gender-in-Development J8 Department. That the said application was successful and Gender in Development gave the women a Hammer Mill, in June, 2011. That he never told the people that he had bought the Hammer Mill with his own money. That all he told them was that the Hammer Mill was in Zambezi and that they should arrange to pick it. • As for RW3, her evidence was that she was a member of the Chinyingi Women's Club. That her club applied for a Hammer Mill through the office of the Zambezi West Constituency Member of Parliament. That the Chinyingi Women's Club requested the organizer of the 1st Respondent's rally, at Chinyingi, to tell the 1st Respondent to address the issue of the application for the Hammer Mill. That consequently, the 1st Respondent informed the women that the Hammer Mill was in Zambezi and that they could go and collect it any time. • The 1st Respondent answered the allegation contained in paragraph 4(g) of the petition by giving evidence on his own behalf and calling RW6 and RW7 to support his evidence . The evidence of the 1s t Respondent was that he collected the Payphone from Ministry of Community Development in July, 2011. That he then gave someone to take it to Chikungu Clinic. That when he visited the clinic, during his campaigns, he found that the Payphone was not at the clinic. That he was told by RW7, the Chairperson of the clinic, that the Phone had been taken to Likungu Basic School. It was his further testimony that he was worried about the manner in which the Phone had been moved from J9 the clinic to the school without keeping a record of that movement. That accordingly, after his campaign meeting at Likungu Basic School, he wrote in the school's visitors' book that he had donated the Payphone because he wanted to place on record that this was a community Phone which was to be administered by the school. The evidence adduced by RW6 and RW7 on the allegation relating to the donation of the Payphone was very similar. They both told the learned trial Judge that the Payphone was not donated at the rally held at Likungu Basic School. The evidence of the two witnesses was that it was RW6 who collected the Phone from Zambezi and brought it to RW7, who was Chairperson of Likungu Clinic. That because there was no one operating at the clinic, it was decided that the Phone should be taken to Likungu Basic School. That accordingly, the Phone was taken to the School and handed over to, PW2, the Headmaster of the School. That all this was done in July, 2011 and not during the campaign period. RW7 added that during the campaign rally at Likungu, the 1st , Respondent only talked about the Phone in response to a question from people who wanted to know whether the Phone had come. On the evidence before her and submissions by Counsel for both parties, the learned trial Judge found that none of the allegations contained in the petition had been proved to the required standard to warrant the nullification of the 1st Respondent's election. She held that some allegations, like the donation of the Payphone, less than a month before the election and the diversion of a Hammer JlO Mill, were valid but could not form the basis for the nullification of the 1st Respondent's election. In her view, she could not nullify the election because the Appellant had not adduced evidence to show that the proved allegations had prevented the people of Zambezi West Constituency from electing a candidate of their choice as a result of the proved acts. The learned trial Judge, accordingly, held that the petition was unsuccessful. She dismissed it and declared the 1st Respondent duly elected Member of Parliament for Zambezi West Constituency. Dissatisfied with the Judgment of the learned trial Judge, the Appellant appealed to this Court raising four grounds of appeal which are: 1. The court below misdirected itself and erred in law and in fact by relying on the case of Matildah Macarius Mutale v. Sebio Mukuka and Another which was distinguishable from the matter in casu; 2. The court below misdirected itself and fell into error when it failed to distinguish between the case in casu and the cases of Mubita v. lnonge Mutukwa Wina and Mlewa v. Wightman on which it erroneously relied; 3. The court below erred in law and in fact when it found as a fact that the 1st Respondent committed illegal acts of donating a Payphone at a campaign rally during the campaign period and diverting a Hammer Mill to Chinyingi a week before the elections to boost his popularity but I .• J11 refused to nullify the resultant election of the 1st Respondent; and 4. The judgment of the court below was manifestly biased in favour of the 1st Respondent and against the Appellant and was against the weight of the evidence before the court. In support of the above grounds of appeal, Counsel for the Appellant, Mr. A. D. L Mumba, relied on his filed heads of argument. In ground one, Counsel was of the view that having found that the 1st Respondent, in Matildah Macarius Mutale v. Sebio Mukuka and Another<1J, did not involve himself in the government program of distributing maize and fertilizer, the learned trial Judge should have distinguished the facts of that case from the facts of the instant case. That in the case now before this Court, the 1st Respondent actively involved himself in the donation of the Payphone and diversion of the Hammer Mill. Counsel submitted that because the donation was done after the dissolution of parliament, the trial court should have questioned the capacity in which the 1st Respondent participated in this government program when he was no longer Member of Parliament for Zambezi West Constituency. Counsel concluded arguments in support of ground one by submitting that since the trial court had found that the illegal practices had been proved, the court should have gone further to nullify the 1st Respondent's election under section 93(2)(c) of the Electoral Act No. 12 of 2006 (hereinafter referred to as "the Act"). To " J12 buttress the foregoing arguments, Counsel cited our decisions in Michael Mabenga v. Sikota Wina and Others{.2l and Josephat Mlewa v. Whitmanf3J. Coming to ground two, Counsel submitted that the court below erred when it found that the act of donating the Payphone at a public rally held at Likungu on 25 th August, 2011, did not amount to an illegal practice. Counsel argued that it was illegal for the 1st Respondent to make a donation of a government property long after the 1st Respondent had ceased to be Member of Parliament for Zambezi West Constituency. Counsel contended that having found that this illegality was committed, the trial court should have invoked section 93(2)(c) of the Act. It was Counsel's contention that it was wrong for the learned trial Judge to invoke section 93(2)(a) of the Act which requires that the majority of voters in the constituency should have been prevented from electing a candidate whom they preferred before a parliamentary election can be nullified. In support of arguments under this ground, Counsel relied on this Court's decisions in the Josephat Mlewa Casef3J and the Michael Mabenga Casef2 J. Counsel combined his arguments on grounds three and four. Counsel's arguments on these two grounds were that when the court found that the 1st Respondent had committed at least three illegal practices, the learned trial Judge ought to have gone further to hold that the 1st Respondent's election was a nullity. I • J \ J14 campaign rallies on the progress made 1n securing the Hammer Mill. With regard to the donation of a Water Pump at Sachala and a Payphone at Likungu, Counsel agreed with the learned trial Judge that the 1st Respondent could not stop a government program. Counsel was of the view that there was nothing to show that the 1st Respondent was an active participant in moving the Hammer Mill to Chinyingi. That the court below found as a fact that the Hammer Mill was collected from Zambezi Barna by people of Chinyingi and not by the 1st Respondent. On the issue of diverting the Hammer Mill from Mwange to Chinyingi, Counsel argued that the record showed that the 1st Respondent, as Area Member of Parliament, had power to do this diversion (see page 176, line 30 of the record of appeal). Counsel ended his submissions, on ground one, by arguing that on the evidence before the trial court, there was no corrupt or illegal practice or misconduct committed in connection with the elections by the 1st Respondent. That in the alternative , the alleged infractions were not such that they would affect the outcome of the elections because they were confined to specific areas and were on going government programs, which the 1st Respondent had no power to stop. In responding to ground two of the Appellant's grounds of appeal, Counsel argued that the trial court merely restated this Court's holding that, for an election to be nullified , a corrupt or an JlS illegal practice must have affected the majority of voters in a Constituency. Counsel contended that the donating of a Payphone at Likungu could not be said to have been of a scale or type that adversely affected the elections. On ground three , Counsel adopted his arguments in relation to grounds one and two. Coming to ground four, Counsel was of the view that the Judgment of the learned trial Judge was not biased in favour of the 1st Respondent and was not against the weight of the evidence. In conclusion, Counsel urged this Court to dismiss this appeal with costs, contending that the appeal wholly lacked merit. We have considered the evidence in the court below, the judgment appealed against and the submissions by Counsel for both parties. In our view, ground four of the Appellant's grounds of appeal must fail. This is because it is not supported by any of the arguments advanced by Counsel for the Appellant. Counsel says he has combined arguments in support of ground four with arguments in support of ground three. However, a carefi-\ study of the submissions made by Counsel under the two grounds of appeal clearly shows that these submissions only relate to ground three. Counsel has not substantiated his contention that the judgment of the court below was biased in favour of the 1st Respondent and . -. J13 Counsel further submitted that it was wrong for the 1st Respondent to distribute government assets after the dissolution of Parliament because he had ceased to -be : a Member of Parliament. Counsel was of the view that the distribution of the said government property should have been left to civil servants . In Counsel's view, the 1st Respondent failed to allow civil servants to distribute the government assets because the 1st Respondent wanted to use these assets to boost his popularity in the constituency. On the basis of the foregoing submissions, Counsel urged this Court to allow this appeal and nullify the 1st Respondent's election. In response to the grounds of appeal and supporting arguments by Counsel for the Appellant, Mr. E. Phiri, Counsel for the 1st Respondent entirely relied on his filed heads of arguments. In response to ground one, Counsel submitted that the court below did not err when it relied on the Matilda Macarius Mutale Casef1J. Counsel argued that it was wrong for the Appellant to argue that the 1s t Respondent involved himself in government programs after the dissolution of Parliament. It was Counsel's submission that the 1st Respondent collected the Hammer Mill from Cabinet Office on 23 r d June , 2011 and that this was way before the dissolution of Parliament. Counsel also contended that the evidence on record showed that after the collection of the Hammer Mill the 1st Respondent had nothing to do with it. That the only thing the 1s t Respondent did was to respond to a question asked on one of his e I l J16 against the Appellant and also against the weight of the evidence before the trial court. We have looked at the judgment of the learned trial Judge and the evidence that was before her. We do not agree with Counsel for the Appellant that, in the analysis of her evidence, the learned trial Judge was biased against the Appellant and in favour of the 1s t Respondent. We, therefore, hold that ground four must fail. As for ground one and ground two , it is our considered view that these two grounds should not have been raised as substantive grounds of appeal but should have been made part of arguments in support of ground three. In our view, the learned trial Judge came to the conclusions attacked by ground three on the basis of her reliance on the Matildah Macarius Mutale Casef1J, Mubita Mwangala v. lnonge Mutukwa Winaf4J and Josephat Mlewa Casef3J. It is our firm op1n1on, therefore , that the only substantive ground of appeal is ground three. We will, accordingly, consider arguments raised by Counsel for the Appellant in support of ground one and ground two as being part of arguments in support of ground three. In our view, there are three things involved in ground three . These are: 1. the Water Pump; J17 2. the Hammer Mill; and 3. the Payphone. We will start with deciding on the issues relating to the Water Pump and the Hammer Mill. The evidence on record, relating to these two items, shows that they were collected by the 1st Respondent, as part of the Government programme, dating back to 2010 (see pages 8-17 of the supplementary record of appeal). In particular, page 9 of the record of appeal shows that the 1st Respondent collected the Hammer Mill from Gender in Development Division, on 23 r d June, 2011. On that date , ten other Members of Parliament also collected Hammer Mills for their respective Constituencies. As at 23 rd June, 2011, the 1st Respondent was still a Member of Parliament as Parliament was only dissolved in July 2011. It is our view, therefore , that the program relating to the Water Pump and the Hammer Mill was a Government Developmental project. This Court has already held that Government Developmental projects are a philanthropic activity; and as the law stands now, are not petitionable. According to the Oxford Advanced Learner's Dictionary (7 th Edition), a philanthropic activity is the practice of helping the poor and those in need, especially by giving them money and services. In Zambia, it is trite law that philanthropic activities include developmental projects. In 1998, this Court established, 1n the Akashambatwa Mbikusita Lewanika Case<6J that, philanthropic activities , even when they had J18 an influence on the voters, did not constitute corruption or an illegal practice, and hence are not petitionable. We said the following in the Akashambatwa Mbikusita Lewanika Casef6J: "There was evidence from some of the petitioners who complained that various Ministers and the respondent donated public funds to public causes, which donations were widely reported in the media. The donations have taken place before the elections, during and since. They continue to date. We have anxiously examined the Regulations in which various kinds of conduct or misconduct is prohibited or made an offence. We have tried to see where the allegation in the petition and in the evidence of various political leaders donating to community projects might fit in, without success. The timing of such public philanthropic activity must have had some influence on the affected voters yet the Regulations are silent on such matters and on any possibly improper donations when not directed at individual benefit. As at the present movement, public philanthropic activity is not prohibited by the Regulations and we can do no more than to urge the authorities concerned to address this lacuna so that there can be a closed-season at election time for an activity suggestive of vote buying .... " From the time we decided the Akashambatwa Mbikusita Lewanika Casef6J 1n · 1998, the electoral law relating to J19 philanthropic activities , has not changed. This can be seen from our recent decision in Reuben Mtolo Phiri v. Lameck Manganif7J, where we said that: "Philanthropic activities were not petitionable in 1998, despite the wording of Regulation 7( 1) (L) of the Electoral (Code of Conduct) Regulations, 1996. They are not petitionable in 2011, despite the wording of Regulation 21 (1) (K) of Statutory Instrument No. 52 of 2011. In our view, the boreholes in this matter, being an ongoing developmental project, fell under philanthropic activities. Reference to them and use of them, by the Appellant, in his campaign, is not an illegal or corrupt practice under the Electoral Act, 2006. Hence, it is not a petitionable ground." The evidence on record , in the instant case , shows- 1. that the Hammer Mill and the Water Pump were kept at the Constituency Parliamentary Office, at Zambezi; 2. how the two items arose at campaign meetings in 2011; 3. who collected them from the Parliamentary Office and delivered them to the beneficiaries; and 4. how and why the Hammer Mill was diverted from Mwange to Chinyingi. The foregoing issues are covered at pages 1, 2 , 3 , 4 and 6 of the 1st Respondent's heads of argument, as follows: J20 (a)At page 1, paragraph 4: "On the other hand, the 1st Respondent states that, acting on a request from the Chinyingi Women's Club to his office, he collected the Hammer Mill from the Gender-in Development Department at Cabinet Office on 23rd June 2011. This Hammer Mill was originally destined for Mwange but was diverted to Chinyingi by the 1st Respondent because, as he asserted, Mwange already had one and he had authority to determine the destination because the letter from the Government stated that the M. P. could identify the clubs in need of one. In answer to a question from the audience at a rally on 20th August 2011, the 1 st Respondent announced that the Hammer Mill was at the Boma. The Court found as a fact that the 1 st Respondent collected the Hammer Mill from Gender-in-Development at Cabinet Office on 23 rd June 2011 and the allegations that he bought it using his resources as being baseless. The Court also found that the 1st Respondent talked about the Hammer Mill at a rally on 20th August 2011. The Court further found that the Hammer Mill was collected on 13th September 2011 from the Boma and taken to Zambela's house, where after it was transported by Brother Kawanga to Chinyingi." (b) At page 2, paragraph 5: .. J21 "(ii) The Appellant further alleges that the 1st Respondent at page 3, line 7 of the Appellant's Heads of Argument 'committed the corrupt or illegal practice or misconduct in August, 2011 '. We argue that all that happened on 20th August 2011 was that the 1st Respondent responded to a question from the crowd by announcing that the Hammer Mill was at the Boma. We opine that this was not an offence neither was it in contravention of the Electoral Code of Conduct. The Court found as a fact that the Hammer Mill was collected by the 1st Respondent from the Gender-in-Development Division at Cabinet Office on 23rd June 2011. It never reached Chinyingi by August, 2011. The question the Appellant has neglected to answer is what the 1st Respondent's status was when he collected the Hammer Mill on 23rd June 2011 and whether he had lawful authority to do so." (c)At page 4, paragraph 2: "(iv) On diverting of the Hammer Mill from Mwange to Chinyingi, the 1st Respondent states at page 176 line 31 of the Record of Appeal that, 'I had the power because in the guidelines that are contained in this letter which has been referred to me in the Bundle of Documents it said the area Members of Parliament were to identify the club so I had power to identify the club'. The rationale for the 1st Respondent's decision to divert the Mill is found at page 175 line 30 of the record of appeal when he states, 'At Mwange, I J22 discovered that they already had a Hammer Mill so it was going to be a duplication so I decided to give it to Chinyingi. My Lady, if it is so for the purpose of winning I also needed to win in Mwange but it was purely for assisting women to solve the problem'." (d)At page 6, 1st paragraph: "With regard to the donation of the Water Pump, the evidence did not meet the required standard of proof as the trial Court could not establish when and where it was donated from. At page 63 (J52), line 12 of the Record of Appeal, the trial Court stated and I quote: 'it is unclear when the Water Pump was collected and it is also unclear when it was given to the people of Sachala. Paragraph 4(c) of the Petition alleges that it was between the 18th of August and 20th of September 2011. P. W 6 the only eye witness alleged it was on 21 st August. The 1st Respondent contended that it was in July. I therefore find that the allegation that it was given at a rally in August or during the campaign period has not been proved to the required standard and is thus dismissed '." On the foregoing evidence, the learned trial Judge found as follows:- "I find that the distribution of the Water Pump at Sachala and Hammer Mill at Chinyingi did not amount to bribery or illegal practice by the 1st Respondent, being done in pursuit of Government programme." J23 In our view, on the evidence and authorities referred to above , the learned trial Judge was on firm ground in finding as she did and in refusing to nullify the election of the 1st Respondent on the basis of the Water Pump and the Hammer Mill. Coming to the Payphone, which was allegedly donated by the 1s t Respondent to the people of Likungu area, a careful analysis of the judgment of the learned trial Judge shows that the Judge found as a fact that the 1s t Respondent donated the Payphone at Likungu Basic School on 25 th August, 2011, which was during the campaign period. The finding of the court below was as follows (see page J60 of the learned trial Judge's judgment): "indeed page 21 of the first Respondent's Bundle of Documents confirms that the payphone was collected by the (1 st Respondent) on 21 st July, 2011 from the Ministry of Community Development as he had testified. Unfortunately this does not prove that it was taken to Likungu in July as testified by (the 1st Respondent), RW6 and RW7. It is the (1 st Respondent's) written statement which confirms PW2's testimony that the same was donated on 25th August, less than a month before the election. I thus find that the (Appellant) has proved this allegation. Again distinguishing the Matildah (Macarius) Mutale Case, not only did the first Respondent have knowledge of the programme but was involved in donating the same at a rally less than a month before the election." J24 Contrary to her finding as above, and after distinguishing the facts of the instant case from the facts of the Matildah Macarius Mutale Casef1J, the learned trial Judge went on to say, at pages J62-J63 of her judgment, that: "(the 1st Respondent) collected and distributed the items to benefit people in his constituency. He could not stop the government programme nor stop the distribution a few months before the election date as was noted by the Supreme Court in the Matildah (Macarius) Muta le Case". It is our firm view that the learned trial Judge fundamentally erred when she relied on the Matildah Macarius Mutale Casef1J in dismissing this allegation. In her judgment, the learned trial Judge had earlier distinguished the facts of the Matildah Macarius Mutale Casef1J from the facts of the instant case. It was, therefore, wrong for her to rely on a case whose facts she had found were distinguishable from the case now before us. We have looked at this Court's decision 1n the Matildah e Macarius Mutale Casef1J and we are of the view that that case is clearly distinguishable from the instant case. In brief, the facts of the Matildah Macarius Mutale Casef1J were that the Appellant, Matildah Macarius Mutale, filed a petition challenging the election of the 1st Respondent, Sebio Mukuka, as Member of Parliament for Malole Constituency. One of the allegations contained in the petition was that the 1st Respondent and his political party, the MMD, gave out fertilizer and maize to • 7_, J25 people in Mumba village. The learned trial Judge found as a fact that the distribution of fertilizer and maize was a government programme. However, the trial court observed that the timing of the distribution of the fertilizer and maize was bad. That although the request was made in January, 2001 , the distribution took place in November, 2001 when the elections were coming in December, 2001. So the court below found that the distribution of fertilizer and maize in November, 2011 was for campaign purposes and meant to influence the electorate and, therefore , to the disadvantage of the 1st 9 Respondent. The court below also found that the 1st Respondent, having been in the key position of District Administrator, knew about the distribution of fertilizer and maize , though the 1st Respondent did not do it personally. Although the learned trial Judge found that the 1st Respondent had committed a corrupt practice , the Judge refused to nullify the election on the ground that the corrupt practice had not been widespread . On appeal to this Court, we said that: "As we have said above, the court below found in a round- - about fashion that the 1st Respondent was guilty of corrupt practices. We must interfere with that finding as it is based on an unsupportable view of the evidence. The facts of this case cannot be compared with the facts in the Mumba Case or the Mlewa Case as the court below did. Mr. Mumba took part in many activities which the learned trial Judge in that case found amounted to corrupt practice or illegal practice .... In the instant case, the court J26 below found that the distribution of fertilizer and maize was a government project and that the 1st Respondent did not personally take part in the distribution of the maize and the fertilizer in Mumba village." Clearly, in the Matildah Macarius Mutale Casef1J, we found that, contrary to the learned trial Judge 's finding, the 1s t Respondent was not guilty of an illegal practice. This was so because although the maize and the fertilizer were distributed during the campaign period and the 1st Respondent was aware of this programme, he did not personally take part in the programme. The position in the present case is completely different. In the instant case , it was proved, as a fact, that the 1st Respondent collected the Payphone from the Ministry of Community Development on 21 st July, 2011 . That the 1st Respondent did not take the Payphone to Likungu area until 25 th August, 2011 , when he purported to donate it at a public rally held at Likungu Basic School. This purported donation was done after Parliament had been dissolved and less than a month before the elections. Thus , at the time the 1st Respondent donated the Payphone , he had ceased to be a Member of Parliament for Zambezi West Constituency; he was an aspiring parliamentary candidate for that Constituency. In his testimony, he admitted that he was in Likungu area for his campaigns for two days during which period he responded to queries from members of the community relating to the Payphone. That on 25 th August, 2011 , he addressed a campaign J27 rally at Likungu Basic School. That at that rally he explained to the gathering on issues surrounding the Payphone and clarified who was entitled to use it. That after the rally, he endorsed 1n the schools visitor' book that he had donated a Payphone to the community (see page 172 of the record of appeal). In our view, the foregoing evidence, from the 1st Respondent himself, clearly shows that he used the Payphone to his advantage, during the campaign period. The capacity in which he purported to donate the Payphone was very questionable. In our considered opinion, the 1st Respondent purported to donate the Payphone as an aspiring parliamentary candidate for Zambezi West Constituency. He could not have purported to donate it in the capacity of area Member of Parliament because he was no longer a Member of Parliament at the time. The Payphone was a government property which the 1st Respondent, having ceased to be a Member of Parliament, should have left to an appropriate civil servant to administer. Further, it was wrong for the 1st Respondent to pretend to donate the Payphone which was not his property but a government property. Accordingly, we are of the firm opinion that the 1st Respondent talked about the government Payphone at his campaign rally and, after the rally, purported to donate it, in order to boost his popularity as a parliamentary candidate. J28 -~ - - -~W~ e , therefore, holo7: e -f st R~spon ________ _ _ _ as_an. ___ _ illegal practice contrary to regulation 21 (k) of the Electoral (Code of - - - - Conduct) Regulations, 2011. The said regulation provides that- "21( 1) A person shall not- (k) use Government or parastatal transportation or facilities for campaign purposes .... " Apart from the foregoing holdings by the learned trial Judge, 9 1n dismissing the Appellant's allegation relating to the Payphone, the Judge also said, at pages J60-J61 of her judgment, that: "I am fortified by the Supreme Court's decisions in the election petition cases of Mubita Mwangala v. Inonge Mutukwa Wina, supra, also referred to by Mr. Muleza, that "it is clear to us that the corrupt or illegal practice or any misconduct must affect the majority of voters in a constituency so as to affect the majority of the voters" and in Mlewa v. Whitman, supra, it was held "the scheme of the law appears designed to protect the electorate and the system itself by providing for the nullification wherever there is wrongdoing which the court fee ls satisfied, perhaps because of the scale or type of the wrongdoing, has adversely affected an election." The learned trial Judge then went on to say that "Accordingly, I am inclined to find that the donation of the J29 - - -~aY-R one was confiiie"~ :Ciltungu_ an_d--lJius_no_t_ ori~ a_ i c_ale~ - - sufficien t to warrant nullification of the election." It is quite apparent from the foregoing that after finding that the illegal practice had been proved under section 93(2)(c) of the Act, the learned trial Judge erroneously went further to hold that - the proved allegation was not on a scale that would warrant the nullification of the 1st Respondent's election. In other words, she applied paragraph (a) of section 93(2) which requires that for a 9 parliamentary election to he nullified, under that paragraph, the petitioner must prove that the majority of voters in the constituency were prevented from voting for the candidate whom they preferred. In our view, it was wrong for the learned trial Judge to bring in the requirement of the illegality having prevented the majority of voters in the constituency from electing the candidate whom they preferred. On the facts of this case, it was sufficient to show that the illegality had been committed per son ally by the 1st Respondent. The learned trial . Judge should have subjected the proved allegation only to paragraph (c) of section 93(2) of the Act. W c have held in numerous cases that the four paragraphs of section 93(2) of the Act are separate and distinct. Proof of an allegation just under one of the four paragraphs is sufficient to warrant the nullification of the election in issue . For the sake of clarity, we will reproduce s ection 93(2), w hich is couched in the fallow ing m a nner: • J30 93 Z ~ Tlie- ele ction - of a canalaa'fe- as - a -member of f e - - - -- - National Assembly shall be void on any of the following grounds which is proved to the satisfaction of the High Court upon the trial of an election petition that is to say: - (a)that by reason of any corrupt practice or illegal practice - committed in connection with the election or by reason of other misconduct, the majority of voters in a constituency were or may have been prevented from electing the candidate in that constituency whom they preferred; (b)subject to the provisions of subsection (4), that there has been a non-compliance with the provisions of this Act relating to the conduct of elections and it appears to the High Court that the election was not conducted in accordance with the principles laid down in such provisions and that such non-compliance affected the result of the election; (c)that any corrupt practice or illegal practice was committed in connection with the election by or with the knowledge and consent or approval of the candidate or of his election agent or of his polling agents; or (d) that the candidate was at the time of his election a person not qualified or a person disqualified for election ." (Em phasis ours) • ... J \ t I J31 _ Evidently,~ction 93(2) has four grounds upon - which a ---= parliamentary election can be nullified. These grounds are under paragraphs (a), (b), (c) and (d). These paragraphs are separate and distinct and proof of an allegation under any one of the four paragraphs is sufficient to nullify a parliamentary election. It is clear that the paragraphs a re i11depen o ent. of each other because they are separated b y the disjunctive "or". Further, the subsection only requires proof of "any" of the four grounds listed under that subsection . In the Josephat Mlewa Case (3 I (where we considered section 18 of the Electoral Act of 1991 which was similar to section 93 of the Act) we said that: "Subsection (2) of section 18 in our view sets out four clear grounds upon which an election of a candidate as a member of the National Assembly shall be held void once each is independently proved to the satisfaction of the High Court. Proof of one of the grounds is enough for a court to nullify an election. We are satisfied that subsection 2 of section 18 sets out four independent and separate grounds which if any of them is proved to the satisfaction of the High Court then the election of a candidate as a member of the National Assembly shall be nullified." On the basis of the foregoing, we hold that the learned trial Judge misdirected herself when she found that the illegal practice J32 committed by the 1st Respondent when he purported to donate the Payphone to Likungu area had been proved but went on to hold that she could not nullify the election because this proved illegality did not affect the majority of voters in the constituency. In the circumstances , we hold that ground three succeeds on the issue relating to the Payphone. In conclusion, therefore, we hold that the 1st Respondent was not validly elected. We declare the election of the 1st Respondent nullified . We order each party to bear their own costs both here and in the court below. L. P. CHIBESAKUNDA ACTING CHIEF JUSTICE ~---~·.-;~~, SUPREME COURT JUDGE SUPREME COURT JUDGE .............•..••.........•.......•....• E. C. MUYOVWE SUPREME COURT JUDGE