Harrison v Electoral Commission (Election Petition Cause 10 of 2019) [2019] MWHC 258 (20 December 2019)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRTY ELECTION PETITION CAUSE NO. 10 OF 2019 IN THE MATTER OF SECTION 114 OF THE PARLIAMENTARY AND PRESIDENTIAL ELECTIONS ACT AND IN THE MATTER OF THE 2157 MAY 2019 PARLIAMENTARY ELECTIONS FOR MANGOCHI WEST CONSTITUENCY BETWEEN: SIMEON HARRISON ..........:cssssscssssscessesscsessssecceecceccce. PETITIONER AND THE ELECTIRAL COMMISSION. .......ccceccceeceeee-... 1S" RESPONDENT MALAWI NATIONAL ASSEMBLY.....00...c00eee0006-.... 2X? RESPONDENT GEOFRREY MELEKA MARK CHIWONDO............. 38? RESPONDENT CORAM: THE HON JUSTICE MR S. A. KALEMBERA Mr Kossam, of Counsel for the Petitioner Mr Chimowa, of Counsel for the 1 Respondent Mr Chidothe, of Counsel for the 34 Respondent JUDGMENT Kalembera J 1.0The Petitioner brought this Election Petition (Petition) against the Respondents seeking the following declarations: 1.1A declaration that the 1 Respondent erroneously retained the 3"! Respondent as winner in the 21' May Parliamentary Elections in Mangochi West Constituency. 1.2A declaration that the 1‘ Respondent failed to direct its mind on correct results as duly and rightfully declared by its own agent, the Constituency Returning Officer at Thema Polling Centre on 24" day of May 2019 in Mangochi West Constituency. 1.3An order directing the 1‘' Resondent to reverse its decision it made to declare the 3" Respondent as the elected Member of Parliament for Mangochi West Constituency and properly declare the Petitioner as the winner as determined by number of votes obtained and rightfully declared by the Constituency Returning Officer at Thema Polling Centre in the Constituency on 24" day of May 2019. 1.4Costs of the Petition; and 1.5Any other Orders that the Honourable Court may deem just and fit to grant. 2.0This Petition is brought under section 114 of the Parliamentary and Presidential Elections Act (PPEA). It is supported various affidavits including one sworn by the Petitioner himself. The 18‘ and 2™ Respondents are opposing this Petition. There are several affidavits sworn by the 3"! Respondents as well as by witnesses for the 1“ and 3" Respondents. 3.0The brief facts of this matter are such that the Petitioner participated in the 21" May 2019 Parliamentary Elections for Mangochi West Constituency as an Independent Candidate. The 1‘t Respondent declared the 3" Respondent as the duly elected Member of Parliament for the said Constituency. The Petitioner was aggrieved with that declaration hence this Petition. 4.0As earlier indicated, there were several sworn statements filed by the Petitioner of his own and for several of his witnesses. It was the testimony of the Petitioner (PW I) that he took part in the Parliamentary Elections as an Independent Candidate for the position of Member of Parliament for Mangochi West Constituency which took place on 21*' May 2019. During the night of 21** May 2019, the counting and tabulation of results was suspended till the next day due to suspicious conduct or behaviour of the Constituency Returning Officer (CRO) one Mr Chigaga. Monitors had noted that he was uploading results which were tampered with using correction fluid; and he did not allow monitors to question how results were being uploaded by the data clerks. That it was discovered that the said CRO had erroneously entered 10 additional votes from Makunula Centre in favour of the 3 Respondent. As a consequence, the Electoral Commission, 1*t Respondent, replaced the said CRO with one Mr Maleka. 5. The new CRO tallied the votes from all polling centres and declared the Petitioner as the winner with 4518 votes against the 3"! Respondent’s 4517 votes. 6. In cross-examination by counsel for the 1% and 3" Respondents, the Petitioner reiterated that he was not present at the Tally Centre but got reports from his monitors. And that he had no documents with correctional fluid. He was not aware as to who prepared exhibit “SH 1A” and that his monitors did not sign exhibit “SH 1B.” He conceded that the total figure for the 3' Respondent also seemed to have been tampered. At Makunula his monitor recorded that he amassed 114 votes as opposed to 102 votes for the 3"! Respndent. 7. In re-examination he reiterated that his monitors were not given duplicate result sheets for Makunula Polling Station by the 1“ Respondent’s officers. 8. PW 2 was Enelesi Amidu. After adopting her sworn statement, she told the court that she was a monitor for the UTM Party at Makunula Polling Centre. And that at this Polling Centre the Petitioner got 114 votes and the 3" Respondent got 102 votes. In cross-examination she told the court that there were two streams and the 3" Respondent got 50 votes on one stream and 52 votes on the other stream, thereby having a total of 102 votes. The Petitioner got 114 votes. 9. PW 3 was Madalitso Makala. He was the monitor for Malawi Electoral Support Network (MESN). He adopted his sworn statement with attached exhibit “MM.” In cross-examination he informed the court that as MESN observer he observed the voting as well as counting of votes. He was observer at the Tally Centre, and saw the results from polling centres as were displayed on the Notice Board. He also got results from MESN observers at the polling centres. And managed to cross-check with Presiding officers (PO). He is the one who compiled exhibit “MM.” He further 3 informed the court that he prepared exhibit “MM” at the time they finished their work at the Tally Centre, the following day. The figures are the ones that were placed on the Notice Board. He did sign the final result sheets, and whatever he did not sign are not official results. 10. PW 4 was Daniel Singano. He adopted his sworn statement. It was his evidence that he was the monitor for the Petitioner at Makunula Polling Centre during the 21* May 2019 Parliamentary Elections. He captured the following results for the concerned parties: 3™ Respondent (102 votes); and the Petitioner (114 votes). That it was surprising that the returning officer captured the result for the station for the 3™ Respondent as 112 votes which is 10 votes more than the actual result. In cross-examination he told the court that one dubious thing was about the conduct of the presiding officer who did not show them the final results. However, he took down some results which were verbally announced. There was no chance to sign the final tally sheets. That exhibit “DS 3” was recorded by himself. He wrote it same day the presiding officer was explaining. 11. PW 5 was Raphael Kadango. He also adopted his sworn statement. He was a monitor for Malawi Congress Party (MCP) at Thema Tally Centre. Around 12 midnight, during tallying of results at the centre he noted that the then CRO one Mr Chigaga was giving them different figures for Sangadzi 2 School Polling Centre. According to Form 60 of Electoral Commission, for this centre, the 3"! Respondent got 117 votes, but on the result sheet he recorded 427. In cross-examination he told the court that the anomalies he observed were not only about Sangadzi 2. The issue about Sangadzi 2 was not resolved. When they were checking results from Sangadzi 2 Polling Centre, the 3' Respondent got 117 but on the board they put 427. Instead of giving them a complaint form, they changed the CRO. The new CRO did not resolve these problems. He further told the court that he signed on the final result sheet and not on exhibit “SH 2.” And that this was not produced at the Tally Centre. In re-examination he reiterated that as MCP monitor he signed that the Petitioner was the winner. They noticed that Mr Chigaga was changing figures, that is why he was removed. When the new CRO came they started counting and found out that Harrison is the one who won. 12. PW 6 was Francis Maleka. He adopted his sworn statement. He was appointed CRO for Mangochi West Constituency replacing one Mr Chigaga. That Mr Chigaga was replaced following serious electoral irregularities that happened under his watch. That in the final analysis he declared the results in the presence of everyone that the winner was the Petitioner with 4518 votes, seconded by the 3"! Respondent with 4517 votes. That he made a correction on the final result sheet in full view of all the monitors and security personnel present at this Tally Centre and monitors signed. He exhibited “FM 1” as the final results sheet as approved by the 1* Respondent. 13. In cross-examination he informed the court that when the POs brought the results, they would be handed over to him as CRO and he would count and then post them on the Board, and handover the result sheets to the IT people (data clerks). It was the IT people who entered the results in the computer. That when they noticed the apparent error in entering the votes, that is there was a difference with the votes on the Board, in that the 3"! Respondent it was indicated got 4527 votes and Petitioner 4518 votes. The IT personnel refused to correct the error. He further informed the court that he believed that both sets of results were sent to the main tally centre. 14. He further reiterated that he did not change the figures on his own, and that he was supposed to change with all the monitors who were supposed to agree to the changes. He conceded that “FM 1” was not signed by all monitors, and this was so because the other monitors were from polling centres, but only those who were supposed to be at the Constituency Tally Centre were supposed to sign. Out of 10 only three signed and he did not know why the others did not sign. Other candidates did not have monitors. 15. In re-examination he confirmed that he finalized the tallying of the results after replacing Mr Chigaga. One of the monitors identified the error where 10 additional votes were added to those of the 3™ Respondent. They gave the monitors available an opportunity to sign and several copies were made as a copy was supposed to remain with the monitors. 16. DW 1 was Evance Masakasa. He adopted his sworn statement. He was the PO for Makunula Polling Centre during the elections that took place on 21‘t May 2019. That results from the two streams indicated that the 3™ Respondent got 112 votes, ‘| and the Petitioner got 114 votes. In cross-examination he told the court that as PO his role was to see to it that the elections were conducted smoothly. There were monitors representing their candidates. He forgot to give them the official results, and they never asked for them. That his statement had no official results. He signed the results, so too the monitors only that he did not give them copies. He took the results to the Tally Centre at Thema 1. The IT personnel received the results. From IT the results would go to the CRO. He handed over the official results forms, and that they can go and recount at the 1‘ Respondent’s. At Thema 1 Mr Maleka announced the final results. He heard what he announced, that is, that the Petitioner was the one in the lead. 17. He further told the court that the results he entered for the 3‘ Respondent were 60 votes on the first stream and 52 votes on the second stream, making a total of 112 votes. The monitors confirmed these results. And these were the results submitted to the Constituency Tally Centre. He never got any complaints. The Petitioner told him that the computer was rejecting the 112 votes and recognizing 102 votes. In re- examination he conceded that there were monitors, and that the monitors were supposed to confirm the results he transmitted to the Tally Centre if they were satisfied with them. He knew the results announced by Mr Maleka, he announced false figures as regards Makunula results. That he was careless in that he failed to give the monitors duplicates. But on counting there was no carelessness. 18. DW 2 was Cliff Chigaga. He adopted his sworn statement. He was CRO for Mangochi West Constituency. That he did not alter any results using tippex or otherwise at any point. In cross-examination there were no problems with figures from Sangadzi 2. All monitors were allowed to take note of the results placed on the Board. He did not announce the results of this centre. His predecessor announced the results of the Constituency. The CRO was the in-charge and was required to enter results in Forms 70, 71 and 72, that is, Councillor, Parliamentary and Presidential. He was transferring the results from Form 66 which came with the PO after the results had been entered by data clerk. He had no authority to change anything, and he could not change whatever the data clerk had entered. 19. In re-examination he insisted that there were no complaints regarding results from Makunula during his time. No monitor asked him about the results of Makunula. He just heard about the results. As regards Form 71 for Parliamentary results, he conceded that it was filled by two people and that he entered part of the information. 20. DW 3 was Joyce Bai Chigaga. She adopted her sworn statement. It was her testimony that she was the PO for Thema 1 Polling Centre. That after receiving the results from the centre, they duly tallied and declared the results as appearing in exhibit “JBC 1,” and that the final results which she submitted to the 1*t Responded are as exhibited under “JBC 2.”She was not cross-examined. 21. DW 4 was Innocent Sozela. He also adopted his sworn statement. He was the Assistant Presiding Officer (APO) for Makunula Polling Centre. That they counted the votes for all the two streams that were at the centre and duly recorded the votes for all the candidates with the participation of the monitors representing the contestants and independent bodies that were there. The Petitioner got 114 votes and the 3"! Respondent got 112 votes. That all those saying otherwise are not truthful. In cross-examination he told the court that he was responsible for stream 2. That after counting they were giving the monitors Form 66 to sign. They forgot to give the monitors copies. It was incorrect not to give the monitors the results. They were wrong in not giving the monitors copies, but the same can be found at the 1* Respondent. Further, he informed the court that there was no complaint about the results. In re-examination he told the court that it was due to fatigue that they forgot to give copies to the monitors. 22. DW 5 was Geoffrey Meleka Mark Chiwondo, the 3"? Respondent. He also adopted his sworn statement, It was his testimony that he amassed 4527 votes whereas the Petitioner came second with 4518 votes. In cross-examination, he confirmed that indeed two CROs handled the Constituency. That due to misunderstandings with the monitors the ither one was removed in the middle of vote counting. He was surprised that the CRO said he did not win when all the results say he won. His monitors did not bring before court duplicates of final results announced by Maleka. He also had no chance to get the official results as the polling centre was in the Petitioner’s village. He signed his sworn statement on 26" July, he was aware that he would testify, but he had no authority to go to the 1S’ Respondent and ask for those documents. The changes in the documents were made in the absence of the monitors. He does not know that these results were on the Board at Thema Tally Centre. Official results are those signed by the CRO and monitors. The 7 Petitioner’s villagers threatened them that’s why he left on the advance from security officers. He further reiterated that he did not have the official results as sent to the 1‘ Respondent. In re-examination he reiterated that he won the elections as all the results indicated so. 23. DW 6 was Lyton Matewere. He adopted his sworn statement. He informed the court that he was a monitor for the 3" Respondent together with Golden Saini at the Constituency Tally Centre. In cross-examination he told the court he informed the court that he participated in the counting of the votes. Disagreements resulted in the removal of Mr Chigaga. He was removed to restore integrity. He was replaced by Mr Maleka. He worked with Mr Maleka until the end. The results were not announced and he does not know why, maybe it was because there was chaos. They were supposed to sign the final results sheet but as a monitor he did not sign it. If the results went then they went without others like him signing them. He told the 3" Respondent that according to his results he was leading. He did not sign on exhibit “FM 1.” He did not complain about not signing the final tally sheet. 24. In re-examination he told the court that he did not sign because the final tally sheet was not found. He was not given to sign. According to his counting the 3" Respondent got 4527 votes and the Petitioner got 4518 votes. 25. DW 7 was Lyson Mussa. He adopted his sworn statement. On the material day, he was monitor for Joyce Moses Chikumbu, an Independent Candidate. That it was not true to say that the 3"! Respondent scooped 102 votes at Makunula Polling Centre because what he saw in terms of the votes counted and the results sheet that he signed is that he got 112 votes. In cross-examination he reiterated that he was monitor for Joyce Moses Chikumbu, an Independent Candidate. He was present when counting of votes commenced. The results were posted on the chalk board. He was given an exercise book by his boss in which he also recorded the results. He forgot to attach his handwritten results to his statement. He signed the final results sheet. They were also trained to take a duplicate of the final results, but he did not take a copy. Together with other monitors and the PO, Mr Masakasa, they also forgot about a copy. There was too much work and he forgot to take a copy. There was no re- examination. 26. DW 8 was Charles Lapozo. He also adopted his sworn statement. In cross- examination he reiterated that he was a monitor for the the 3"! Respondent. He took part in the whole exercise from beginning to the end. The 3 Respondent got 112 votes and the Petitioner got 114. He got the results from the polling centre. The 3" Respondent was told the results from his rough paper on which he noted the results. His notes were not allowed to be brought to court. He couldn’t bring the rough paper but he memorized the results which he had noted on the rough paper. Despite being trained for the results he did not sign for them. Despite being trained to take a duplicate of the signed results, he did not take a copy because they were tired and he forgot. He was present when the PO, Mr Masakasa, took the results to Thema Tally Centre. There was no re-examination. 27. The main issues for the court’s determination are: a. Whether or not the 1** Respondent correctly declared the 3™ Respondent as the duly elected Member of Parliament for Mangochi West Constituency? b. In the alternative, if the answer to (a) above is in the negative, what is/are the appropriate order(s) for the court to make? 28. This matter was commenced by way of Judicial Review under sections 100 and 114 of the PPEA, and Counsel for the 1‘ Respondent objected to that mode of commencing these proceedings other than by way of Petition under section 114 of the PPEA. In its decision of 15" day of July 2019, this court ordered and directed that indeed this matter ought to have been commenced by petition under the said section 114. Thus this court ordered that this matter be converted to one commenced by petition, and it be taken as if it had been commenced under the said section 114 of PPEA. Section 114 of the PPEA provides as follows: “s.114 —(1) An appeal shall lie to the High Court against a decision of the Commission confirming or rejecting the existence of an irregularity and such appeal shall be made by way of petition, supported by affidavits of evidence, which shall clearly specify the declaration the High Court is being requested to make by order. (2) On hearing a petition under subsection (1), the High Court SSS a (a) shall subject to subsection (3), make such order or orders as it thinks fit; (b) in its absolute discretion, may or may not condemn any party to pay costs in accordance with its own assessment of the merits of the complaint. (3) An order of the High Court shall under subsection (2) not declare an election or the election of any candidate void except on the following grounds which are proved to the satisfaction of the court — (a) that voters were corruptly influenced in their voting contrary to any provision of this Act, or had their ballot papers improperly rejected, or voted mlre than once; (b) that persons not entitled to them were improperly ganted ballot papers; or (c) that persons entitled to them were improperly refused ballot papers: Provided that the court shall not declare an election void, afier proof of any ground in paragraphs (a), (b) or (c), if it is satisfied that the number of votes involved could not have affected the result of the election; (d) non-compliance with the Act in the conduct of the election: Provided that, if the court is satisfied that any failure to comply with this Act did not affect the result of the election, it shall not declare the election void: (e) that the candidate was at the time of his election a person not qualified for the election or that he was not properly nominated, or that a duly qualified candidate had his nomination improperly rejected by the returning officer. (4) The court shall have power to direct scrutiny and recounting of votes if it is satisfied, during proceedings on an election petition, that such scrutiny and recount are desirable. (5) At the conclusion of the trial of an election petition the court shall determine whether the member whose nomination or election is complained of, or any other and what person was duly nominated or elected, or whether the election was void, and shall report such determination to the Commission. Upon such report being given such determination shall be final. 10 || (6) No application shall be made to the High Court for an inunction or for an order restraining the holding of an election within fourteen days immediately preceding the date of the election. (7) Notwithstanding subsection (6), the High Court shall have power, subsequent to the holding of an election, to declare void the election if, upon hearing the petition referred to in subsection (1), the High Court is satisfied that there are good and sufficient grounds for declaring void the election.” 29. Thus the court directed that this matter be converted to one commenced by was way of petition because it was clear that the 1** Respondent made a decision on the Petitioner’s complaints, only that the said decision got to the Petitioner when the results had already been announced by the 1‘ Respondent. 30. I am thus mindful that this being an electoral petition, it is a civil matter and must be treated like one. I am also mindful that in a civil matter, the Petitioner as the one who alleges or asserts, bears the burden of proof. And the standard of proof in civil proceedings is proof on a balance of probabilities. In the case of Miller v Minister of Pensions [1947] ALL ER 372 at pages 373 and 374 Denning J had this to say: “Tf the burden is such that the tribunal can say; we think it is more probable than not, the burden is discharged, but if the probabilities are equal, it is not.” 31. And in the case of Mike Mlombwa t/a Countrywide Car Hire v Oxfam, Civil Cause No. 2343 of 2003, Manyungwa J had this to say: “A well settled law of ancient application is ‘ei incumbit probation qui decit non qui negat.” This essentially means that the burden of proof lies on the party alleging a fact of which correlative rule is that he who asserts a matter of fact must prove it but he who denies need not prove it...” 32.1 must agree with the submissions by Counsel for the 1° Respondent that in an election matter like this one, the burden of proof on the Petitioner goes beyond just proving that there were irregularities in the Parliamentary Elections in Mangochi West Constituency. The Petitioner must do more. The Petitioner must go further and actually establish that the alleged irregularity or irregularities affected the election result. In the case of Laston Thawale v Malawi Electoral Commission and 11 Phillipo Chinkhondo, Miscellaneous Civil Case No. 41 Of 2009 the Court held that: “It would not be enough to establish that an irregularity might have affected an election result for the court to declare the election result a nullity. The irregularity must in fact have affected the election result for it to lead to an annulment of the election. The burden is on the Petitioner to establish that an alleged irregularity affected the result of an election.” 33. Similarly in the case of Loveness Gondwe and Malawi Electoral Commission v Catherine Gotani Nyahara [2005] MLR 121 at p.121 the Supreme Court of Appeal had this to say: “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 not did affect the result of election.” The learned Justices of Appeal went on at p. 131 as follows: “The burden would be on the respondent as petitioner to establish that the alleged irregularity affected the election result, especially, as happened in this case, the irregularity could not be blamed on the 1* appellant. That burden has not been discharged by the respondent. ” 34. Thus, the Petitioner, in the matter at hand, bears the burden to establish and prove that there were irregularities, as he alleged, and that these irregularities affected the Parliamentary results in the said Mangochi West Constituency. It is my considered view that further to the established principles on the burden of proof, in matters like this one, where especially the 1‘' Respondent has a major role to play in the conduct of elections, once the Petitioner has satisfied his burden, or has established a prima facie case, the burden same shifts to, in this case, the 1‘t Respondent to establish that indeed the 3" Respondent was duly elected Member of Parliament for the said Mangochi West Constituency. 35. Section 96 of the PPEA provides as follows: 12 “s.96 —(1) The Commission shall determine and publish the national result of a general election general election based on the records delivered to it from the districts and polling centres. (5) Subject to this Act, in any election the candidate who has obtained a majority of the votes at the poll shall be declared by the Commission to have been duly elected.” 36. Thus it is my considered view that where the Petitioner establishes a prima facie case that there are irregularities which affect the election results, the burden shifts or ought to shift to the one who was mandated by law to conduct the election, and who in fact conducted the elections and declared the results, in this case the 1* Respondent. In that event the 18‘ Respondent would be required to prove that its declaration of the 3' Respondent as the duly elected Member of Parliament for Mangochi West Constituency was/is correct. The 1*' Respondent would thus be required to adduce credible evidence to prove that fact. 37. It undisputed fact that both the Petitioner , the 1‘' Respondent and others, participated in the elections which took place on 21*t May 2019, in Mangochi West Constituency, as Parliamentary candidates. Both the Petitioner and the 3" Respondent claim that they won the said Parliamentary race. The 1*' Respondent declared the 3'! Respondent as the duly elected Member of Parliament for Mangochi West Constituency. Both the Petitioner and 1‘ and 3"! Respondents brought several witnesses, plus exhibits to prove their respective positions. Other witnesses from both sides were cross-examined and others were not. While I have gone through and considered all the evidence submitted in this court, in determining this case, it has not been possible to comment on each and every piece of evidence before this court, of course without prejudicing any of the parties. Rather, to conclude that both sets of witnesses, were mostly partisan in their testimony. 38. As earlier observed one of the issues for the court’s determination is whether or not the 1** Respondent correctly declared the 3™ Respondent as the duly elected Member of Parliament for Mangochi West Constituency? The 1‘t Respondent declared the 3™ Respondent as duly elected Member of Parliament for Mangochi West Constituency with 4527 votes, as opposed to 4518 votes for the Petitioner. The evidence by the Petitioner’s witnesses is that that declaration was incorrect and 13 wrong. PW 2 and PW 3 have testified that this is wrong because at Makunula Polling Centre the Petitioner got 114 votes whereas the actual votes the 1*t Respondent got were 102 and not 112 as indicated by the replaced CRO, Mr Chigaga. That because of the wrongly added 10 votes, the 1S‘ Respondent got 4527 votes instead of 4517 votes. To that effect they exhibited exhibits “EA” and “DS 3.” PW 6 Francis Maleka, the new CRO, told the court that the Petitioner is the one who actually won the Parliamentary seat for Mangochi West Constituency, and that he got 4518 votes as opposed to the 3 Respondent who got 4517 votes. He exhibited “FM 1” which was duly signed by at least three monitors who were available, as the final results. DW 6 alleged that he did not sign the final results sheet because they could not be found. 39. Duplicate result sheets were not given to monitors by Presiding Officers, contrary to the requirements of the law. DW 1, Evance Masakasa, who was a PO and witness for the 1‘' Respondent confirmed to the court that indeed he did not give monitors duplicate results sheets, apparently due to tiredness, and that he forgot so to do. He is the one who delivered the final results sheet for Makunula Polling Centre to Thema Tally Centre when Mr Chigaga was still the CRO. No official result sheet signed by himself and monitors was exhibited. Even his handwritten notes, as an officer of the 1‘ Respondent, he did not tender them to prove and establish that the 3" Respondent got 112 votes and not 102 votes at this centre. Likewise, DW 4, Innocent Sozela, who was APO, again an officer of the 1*' Respondent, at Makunula Polling Centre, admitted that he did not give monitors duplicate results due to tiredness and forgetfulness, and that results were dictated to monitors and posted on flipcharts. Likewise DW 7 and DW 8 did not tender any documentation to show votes scored by the 3"? Respondent. 40. It is clear that the POs at Makunula acted contrary to section 93 (2), (3) of PPEA which provides as follows: “s.93 —(2) Representatives of political parties at a polling station shall be entitled to a copy of the duly signed summary of the final result of the poll at a polling station. (3) The presiding officer shall post at the polling station a copy of the duly signed summary of the final result of the poll at that polling station.” 14 Thus the provision most especially under subsection (2) was not adhered to. Those copies would have been the basis, among others, to confirm for the court and other parties the results in this Constituency. 41. The testimony of PW 3 and PW 4 corroborates that of DW 1, DW 4, DW 7, DW 8 and fortifies the assertion that duplicate result sheets were not given to monitors at Makunula PS. Further, DW 1, despite being a PO, confirmed that his sworn statement did not contain official results of Makunula PS. Now if the parties did not have or were not given the final result sheets, and the PO did not tender official results, is it surprising that both the Petitioner and the 3"! Respondent claim that the Parliamentary seat in the said constituency was won by either of them? Even the 3" Respondent who was declared winner admitted in this court that he did not have the official results, and he expected that the 1‘ Respondent would bring such results. Unfortunately, the 1‘t Respondent too did not tender final official parliamentary results for this constituency. So which results did the 15 Respondent use to declare the 3" Respondent the winner of the said Parliamentary seat? 42. Going through the evidence before me I find that the Petitioner has demonstrated that at Makunula Polling Centre the results were tampered in favour of the 34 Respondent which necessitated the former CRO to be replaced, and the new CRO, Mr Maleka, to correct the same to reflect what was understood to be the correct result. And it was this result which he announced. DW 6 did not sign these results because according to him they could not be found. However, it is clear that he did not sign because they reflected or showed that the Petitioner was the one who won, when according to him, the 3"! Respondent is the one who won the elections. If the 1° Respondent had conducted itself according to its mandate as provided for by law, we wouldn’t be in this situation. There would have been credible result sheets signed by all those who were so required to sign. The 1S‘ Respondent would also have been able to produce and tender the official results acceptable to this court, and therefore helping the court to come to a fair and proper determination of this Petition. 43. As it is, on the evidence before this court, it is my finding that the 1° Respondent failed to conduct the Parliamentary Election in Mangochi West Constituency, in a free and fair manner, and thus rendering the credibility of the said election and its results highly questionable. We have two CROs who at different times presided over this Constituency, on behalf of the 1 Respondent, giving contradictory 15 testimony. It is also very troubling that contrary to the provisions of the PPEA, the monitors were not given copies of the result sheets. Further, it is also clear on the evidence that votes were tampered with. It was even claimed, albeit a bit late, by the 3" Respondent, that in fact he should have been the one complaining as 40 of his votes at Mangombo School Polling Centre were wrongly removed. If the 1* Respondent and its officers had conducted the said Parliamentary Election as required and expected, there shouldn’t have been conflicting results from the 1“ Respondent and its officers. 44, Even the testimony of the Chief Elections Officer, through his deposition, failed to bring clarity and certainty as regards the Parliamentary results in issue herein. He failed to disclose the official results sheet that the 1*' Respondent used to declare the 3"! Respondent as a duly elected Member of Parliament for Mangochi West Constituency as requested. He did not even exhibit, as would be expected, computer generated documents, i.e. MEC POLL 66B, MEC POLL 71B, etc to substantiate his claim that the 3' Respondent was the legitimate winner of the said Parliamentary seat. His testimony was a clear manifestation of the failure by the 1*' Respondent to conduct the said Parliamentary election as required by law. The 1*' Respondent’s failings should not be expected to be corrected by the Petitioner. 44. All in all, I am satisfied that the Petitioner has demonstrated, established and proved to the required standard, that due to the irregularities observed herein, the results ought to and were affected such that, the Parliamentary results declared and announced by the 1* Respondent do not reflect the will of the people and electorate who participated in that vote. Thus, the Petitioner, has proved that the 1‘ Respondent incorrectly declared the 3 Respondent as the duly elected Member of Parliament for Mangochi West Constituency. Consequently, I nullify the Parliamentary results of the Mangochi West Constituency as declared and announced by the 1“ Respondent. Having considered, the irregularities and inconsistencies in the results, from same officers of the 1*' Respondent, I am left in no doubt that the fairness of this matter would not be in declaring the Petitioner, duly elected Member of Parliament for Mangochi West Constituency, but rather ordering a re-run of the Parliamentary election. I so order. As to who will contest in this re-run I leave it to the 1** Respondent. Thus the Petitioner’s petition succeeds with costs. 16 PRONOUNCED (this 20¢ day of December 2019, at the Principal Registry, Blantyre. S. A. Kalembera JUDGE 17