Himuzowa v Phiri and Anor (Petition 14 of 2021) [2021] ZMLGEL 15 (27 August 2021)

4 THE REPUBLIC OF ZAMBIA IN THE LOCAL GOVERNMENT ELECTIONS TRIBUNAL AT THE SUBORDINATE COURT REGISTRY HOLDEN AT LUSAKA (Constitutional Jurisdiction) IN THE MATTER OF: AND IN THE MATTER OF: AND THE LOCAL GOVERNMENT PETITION RELATING TO CHAISA WARD 23 ELECTIONS HELD ON 12™ AUGUST, 2021 ARTICLE 159 OF THE CONSTITUTION OF ZAMBIA, THE CONSTITUTION OF ZAMBIA ACT IN THE MATTER OF: SECTION 81, 82, 83, 84, 86, 87, 89, 91, 92, 94,96, 97, 98,99,100 AND 110 OF THE ELECTORAL ACT NO. 35 OF 2016 AND IN THE MATTER OF: BETWEEN: - FRED HIMUZOWA AND RUTH PHIRI ELECTORAL COMMISSION OF ZAMBIA (ECZ) 2nd RESPONDENT ELECTION PETITON The Petition of FRED HIMUZOWA of House No. 234/50 Chaisa Compound in the Lusaka District and Province of the Republic of Zambia SHOWETH that: 1. Your Petitioner FRED HIMUZOWA is a person who was a candidate in the Local Government Election in the CHAISA WARD 23 of Mandevu Constituency situate in the Lusaka District of the Lusaka Province of the Republic of Zambia having been adopted and sponsored by the UNITED PARTY FOR NATIONAL DEVELOPMENT (UPND) and having been validly nomination on the 19th day of May, 2021. 2. And your Petitioner states that the Election was held on the 12th August, 2021 when the returning officer declared RUTH PHIRI of PATRIOTIC FRONT (PF) as being duly elected. 3. Your Petitioner states that in the Election referred to in paragraph 2 hereof the following were the candidates, namely: i. PETITIONER UNITED PARTY FOR NATIONAL DEVELOPMENT (UPND) ii. iii. iv. v. 1st RESPONDENT PATRIOTIC FRONT (PF) CHISENGA LAZARUS PEOPLE'S ALLIANCE FOR CHANGE (PAC) CHIPANDWE DENIS DEMOCRATIC PARTY (DP) MPONGO BUSIKU SOCIALIST PARTY (SP) 4. Your Petitioner will aver that the said Election was conducted by the 2nd Respondent, an independent and autonomous Electoral Management Body created by the Constitution of Zambia Chapter 1 of the Laws of Zambia the 2nd Respondent herein. 5. The 2nd Respondent through its returning officer MR. CLIFFORD CHIRWA declared the results on 16th August, 2021 of the said Local Government elections as follows: i. ii. iii. iv. V. RUTH PHIRI FRED HIMUZOWA CHISENGA LAZARUS CHIPANDWE DENIS MPONGO BUSIKU 5225 Votes 2789 Votes 184 Votes 112 Votes 110 Votes 6. Your Petitioner will contend that the declaration of the 1st Respondent as duly elected Member of the Lusaka Council for CHAISA WARD 23 was invalid by reasons of the non-compliance with provisions of the Constitution and the non­ compliance of the provisions of the Electoral Process Act No. 35 of 2016 and the procedure prescribed and the said Act. PARTICULARS OF FAILURE TO COMPLY WITH THE CONSTITUTION OF ZAMBIA AND THE ELECTORAL PROCESS ACT. i. On 15th June, 2021 the 2nd Respondent suspended all manners of Political campaigns for Patriotic Front (PF) and United Party for National Development (UPND) from 15th June to 28th June, 2021. ii. Despite the aforementioned suspension of all manners of Political Campaigns, the 1st Respondent herein and his party Patriotic Front (PF) continued with campaigns activities thereby disadvantaging the petitioner as well as interfering with the independence or impartiality of the Electoral Commission of Zambia. iii. During the gazetted campaign period herein, the 1st Respondent and his party cadres or agent without lawful authority destroyed, mutilated, defaced or removed all campaign posters, billboards for the petitioner and his party thereby misrepresenting the facts and inducing or procuring in the minds of the voters that the petitioners was not a serious contender and therefore not entitled to votes at the election. iv. On different days but during the campaign period, the 1st Respondent was seen bribing voters through the distribution of mealie meal and by giving voters money on the voting day in exchange for votes thereby corruptly and fraudulently obstructing voters either at the polling station or on that voter’s way thereto from voting for a candidate of his or her. v. There was wide spread issuance of fake Gen-20 Forms that contained fake and different figures and the same were swapped with the legitimate Gen- 20 Forms during counting. On the polling day the 12th August, 2021 or soon thereafter, the 1st Respondent and his party cadres or agents were seen changing figures at the Totaling Centres (Olympic Youth Development Centre) for Mandevu Constituency whilst working with some officials from the Electoral Commission of Zambia. This brought about a fracas amongst voters and as a results the Petitioner’s Polling Agents were assaulted and driven out of the Totaling Centres. This left the 1st and 2nd Respondents’ Agents at the said Totaling Centre and when the figures were announced, they were totally different from those earlier verified by the Petitioner’s Agents. vi. There was widespread intimidation and violence by the 1st Respondent’s cadres or agents during campaigns and as such the Petitioner and his team could not go out to campaign for fear of being attached/assaulted by the lsl Respondent’s cadres. vii. The 2nd Respondent gave directives to all the participating candidates that the campaigns in forms of Political Rallies and Road shows (except on car and loud Speaker) were banned as a measure to minimize the spread of Coronavirus disease (COVID-19). The door to door campaigns was allowed to the extent of two persons per group. viii. with respect to the paragraph vii above, the Zambia Police Service arrested all UPND members who were found conducting campaigns in respect of the above paragraph and UPND could not conduct Road Show through one loud speaker for fear of violence by the 2nd Respondent’s cadres or agents. ix. The 1st Respondent continued with Political rallies, group road shows and group door to door campaigns thereby disadvantaging the other candidates. x. Further, on the voting day 12lh August, 2021 or soon thereafter, one of the Petitioner’s monitors was abducted and taken to the unknown place. The said monitor is still missing up to date. 7. Your Petitioner states that as a consequence of the aforesaid illegal practices committed by the 1st Respondent herein and his agents, the majority of the voters’ in CHAISA WARD 23 and/ or polling stations were prevented from exercising their freedom in electing the candidate in whom they preferred. 8. In the circumstances, the petitioner contends that the 1st Respondent was not duly elected in terms of the Constitution and the provisions of the Electoral Process Act. THEREFORE, YOUR PETITIONER PRAYS THAT THE COURT MAY GRANT HIM THE FOLLOWING REMEDIES: i. A declaration that the election of the 1st Respondent as a Member of the Lusaka Council for CHAISA WARD 23 is null and void. ii. An Order that the declaration that the winning of the 1st Respondent was null and void and must be set aside. iii. A declaration that the election is invalid by the reason of Non-compliance with the constitution and with the Electoral Process Act and the procedure for the conduct of the election prescribed by the Electoral Commission of Zambia pursuant to the provisions of the Electoral Process Act No. 35 of 2016. iv. An Order that the 1st Respondent be disqualified from being a candidate in the bye­ election for not complying with the provisions of the Constitution and the Electoral Process Act. v. vi. An Order that the 1st Respondent bears the Costs in this cause. Any other relief the Court may deem fit. Dated at Lusaka this.................... day of..................................................... , 2021. SIGNED BY: FRED HIMUZOWA Per:_______ 1 PC Mesdames Mushipe & Associates Plot 14/100, ©ff American Embassy Road Ibex Hill Cell: 0977-879964/231188 Email: mushipe@vahoo.com LUSAKA ADVOCATES FOR THE PETITIONER