Matildah Macarius Mutale v Mukuka and Anor (SCZ 8 279 of 2002) [2003] ZMSC 111 (17 September 2003)

IN THE SUPREME COURT OF ZAMBIA SCZ/8/279/2002 HOLDEN AT LUSAKA (Civil Jurisdiction) IN THE MATTER: THE ELECTORAL ACT, CHAPTER 13 SECTION 18(C), 19 AND 20 OF THE LAWS OF ZAMBIA ELECTION FOR: PARLIAMENTARY ELECTION FOR MALOLE CONSTITUENCY HELD ON THE 27T» DECEMBER, AND IN THE MATTER OF: AN ELECTION PETITION BY MATILDAH MACARIUS MUTALE BETWEEN: MATILDAH MACARIUS MUTALE Appellant AND SEBIO MUKUKA 1st Respondent ELECTORAL COMMISSION OF ZAMBIA 2nd Respondent Coram: Sakala CJ, Lewanika DCJ, Chirwa, Chibesakunda, Mambilima, Chitengi and Silomba, JJS On 17th September, 2003 and For the Appellant Dr. J. M. Mulwila of Messrs Ituna Partners For the 1st Respondents : Hon E. S. Silwamba of Messrs Eric Silwamba & Company and Mr. W. Ngwira of Messrs Libertas Chambers For the 2nd Respondents : No Appearance JUDGMENT Chitengi, JS delivered the Judgment of the Court. J 2 Authorities referred td:- 1. Levison Achitenji Mumba Vs Peter William Mazyambe Daka Appeal No. 38 of 2003 (unreported) 2. Mlewa Vs Wightman (1995/97) ZR 171 3. Electoral Act Chapter 13 of the Laws of Zambia Sections 18(2)(C), 18(4) 19 and 20 and Regulation 53 of the Electoral (General Regulations) 4. The Constitution of Zambia Article 72. 5. Harry Sinkala Vs The Electoral Commission of Zambia and Daudi M. Mukwasa Appeal No. 180 of 2002 (unreported) In this Judgment we shall refer to the Appellant as the Petitioner, the 1st and 2nd Respondents as Respondents, which is what they were in the Court below. On the 25th January, 2002 the Petitioner, who was an unsuccessful Parliamentary candidate in the Malole Constituency, filed a Petition challenging the election of the 1st Respondent as Member of Parliament for Malole Constituency. The Petition was grounded on Sections 18(C), 19 and 20 of the Electoral Act Cap 13 of the Laws of Zambia. Reduced to a narrow compass, for the purpose of this appeal, the facts of thisj^are briefly that the Petitioner contested the Malole Parliamentary Constituenc^in the 2001 tripartite elections on the ticket of a political party called patriotic Front. Among other persons who contested the Malole Parliamentary Constituency was the first Respondent who stood on the ticket of another political party called the Movement for Multiparty Democracy (MMD). J 3 The Petitioner and her witnesses testified that the first Respondent and the other candidates gave roofing sheets, money, food and footballs to the electorate. As a result of these gifts by the first Respondent and the other candidates, the electorate demanded that the Petitioner also gave them something. In Chewe village the Petitioner was told that the first Respondent had given K800,000 to the school and promised to give K3,000,000.00 more if he was elected. In Finshe Ward the Petitioner found a classroom full of roofing sheets given by the first Respondent. However, the Petitioner did not see the first Respondent put the roofing sheets in the classroom at Finshe Primary School. When the Petitioner addressed campaign meetings at Kalyafye in Makasa area and Mumba village she was told that the Petitioner had given K200,000 to Makasa Primary School and had also given out fertilizer and maize in Mumba/Butatu village and had repaired a teacher’s house at Mumba Primary School. The first Respondent and the MMD gave out roofing sheets in Chisangaponde, Numbuka and Chilombwe villages. The roofing sheets were for the school. Civil servants who were employees of Ministrjp?of Education and Agriculture and MMD supporters used to distribute the fertilizer and maize and roofing sheets. However, despite the distribution of fertilizer and maize in Mumba/Batatu area the Petitioner did better than the first Respondent. The first Respondent and his witnesses denied all the allegations leveled against the first Respondents. The first Respondent did not give the electorate the gifts and distribute fertilizer and maize as alleged by the Petitioner and her witnesses. According to the first Respondent and his witnesses, the distribution of fertilizer was a government exercise in which Nchinchiwababili Rural Development Project and Programme Against Malnutrition participated. No civic leaders were involved in this programme which has been going on since 2000. The District Disaster Management Committee was responsible for the distribution. The District J 4 Disaster Management Committee comprised representatives of the government, NGOs and the Community. The first Respondent as District Administrator was the overall boss of all the Government Departments. The K800,000.00 was formally applied for by Chewe Primary School PTA and approved by the Constituency Development Fund. The application was made in September, 2001 and the first Respondent was involved only in his capacity as Chairman of the District Development Committee. On this evidence the Court below found the allegation relating to the giving of K800,000.00 and promising of K3,000,000.00 more by the first Respondent^unfounded and, therefore, not proved. The only allegation the court below found proved was the distribution of maize and fertilizer in Mumba/Batatu Village. On the evidence the court below found that the distribution of fertilizer and maize was a Government programme. However, the Court observed the timing of the distribution of fertilizer and maize was bad; though the request was made in January 2001 the distribution took place in November, 2001 when the elections were coming in December, 2001. In consequence of this, the court below found that the distribution of fertilizer and maize in November 2001 was for campaign purposes and meant to influence the electorate and, therefore, tookr'advantage of the first Respondent. The court below also found the first Respondent having been in the key position of District Administrator, knew about the distribution of fertilizer and maize though the first Respondent did not do it personally. The Court below then posed the question to itself whether the distribution of maize and fertilizer amounted to a corrupt practice on the part of the first Respondent. J 5 From the lower Court’s reference to the case of Levison Achitenji Mumba’s caseW, a case in which we recently uphold the nullification of Mr. Mumba’s election, and her associating herself with the finding of the trial Judge in that case that what Mr. Mumba did amounted to corrupt and illegal practice, the Court below, in our view, found, in a round about way, that the first Respondent was guilty of corrupt and illegal practices. The Court below also found that the distribution of maize and fertilizer in Mumba village affected the election in Mumba village but that it did not affect the whole election as it was restricted to Mumba village only and that it was common cause that the Petitioner did better than the first Respondent in Mumba village despite the distribution of maize and fertilizer. Because the distribution of maize and fertilizer had no bearing on the results in the whole Malole Constituency the court below held that the distribution of maize and fertilizer could not warrant the rendering of the election of the first Respondent null and void. Consequently, the Court below declared the first Respondent duly elected Member of Parliament for Malole Constituency and dismissed the petition with each party to bear its own costs. The Petitioner now appeals to this Court against the Judgment of the court below. Dr. Mulwila, learned counsel for the Petitioner, filed two grounds of appeal on behalf of the Petitioner. He also filed written heads of argument and made oral submissions in support of the two grounds of appeal which he argued as one. The two grounds of appeal are these:- J 6 ul. The learned trial Judge having found as a fact that the distribution of maize and fertilizer in Murriba Village which was for campaign purposes and was done with the knowledge of the 1st Respondent, misdirected herself in law by not finding the 1st Respondent guilty of corrupt practice or illegal practice under the Electoral (General) Regulations 1991 (S. I. No. 108 of 1999). 2. The learned trial Judge erred in law when she refused to declare the election of the 1st Respondent as Member of Parliament for Malole Constituency null and void on account that the distribution of maize and fertilizer in the Constituency was limited to Mumba Village and did not have a bearing on the results of the whole of Malole Constituency.” The thrust of Dr. Mulwila’s submissions is that the court below misdirected itself by not declaring the election of the Petitioner null and void. It was Dr. Mulwila’s submission that the court below having found that the distribution of maize and fertilizer was for wooing votes and was done with the knowledge of the first Respondent, it erred in law by not finding the first Respondent guilty of corrupt practice and by not nullifying the election. Further, Dr. Mulwila argued and submitted that the court below was wrong when it contended that for the petition to succeed the Petitioner must show that the conduct complained of affected the whole result of the election. It was Dr. Mulwila’s submission that the judgment of this court in the case of Mlewa Vs Wightman^ made it clear that Section 18(2)(C) of the Electoral ActW is intended to penalize the candidate who engages in corrupt or illegal practices before , during or after an election. Consequently, Dr. Mulwila submitted, the conduct complained of by the Petitioner did not have to affect the result of the whole Malole Constituency for the election to be nullified. For J 7 purpose of nullifying the election it was sufficient to show that the first Respondent committed a corrupt practice or illegal practice. It was Dr. Mulwila’s submission that by Regulation 53 of the Electoral (General) Regulations the conduct of the first Respondent amounted to corrupt practice or illegal practice. Finally Dr. Mulwila submitted that Section 18(4) of the Electoral Act does not apply where the candidate himself is found to have committed an electoral offence. As authority for this statement, Dr. Mulwila referred us to the Mlewa case again. On behalf of the first Respondent, Hon. Silwamba, learned counsel for the first Respondent, filed heads of argument and also made oral submissions. He submitted that the grounds of appeal do praise any points of law and, therefore, in terms of Article 72 of the Constitution^, the appeal is incompetent. It was Hon. Silwamba’s submission that even the submissions by the Petitioners’ counsel do not raise any points of law. Hon. Silwamba argued and submitted that the court below was on firm ground in making the findings it did. Further, he submitted that the court below having found that the first Respondent did not personally distribute the maize and fertilizer, there was no basis upon which the court below could find the first Respondent guilty of corrupt practices. Hon. Silwamba observed that notwithstanding the untidy timing and the first Respondent’s knowledge the Petitioner did well in Mumba village. Consequently, Hon. Silwamba submitted, Section 18(4) of the Electoral Act applies. Finally, Hon. Silwamba submitted that Section 18(C) does not exist in the Electoral Act and that this petition is drafted in similar fashion as in Mukwasa case. J 8 In reply to all this, Dr. Mulwila submitted that the fact that the first Respondent knew of the distribution of maize and fertilizer was sufficient. As to the grounds of appeal, Dr. Mulwila argued that the grounds of appeal are sufficient in themselves and are based on points of law. The second Respondent did not appear to argue the appeal. At this juncture we wish to state that we are alive to the provisions of Article 72 of the Constitution that we can hear an election petition only on a question of law. We have looked at the grounds of appeal and the heads of argument and, contrary to Honourable Silwamba’s submissions, we are satisfied that the grounds of Appeal raise points of law. We have considered the evidence that was before the court below, the grounds of appeal and the learned submissions by counsel. We have also considered the judgment of the court below. As we see it this appeal turns on the question whether the first Respondent was guilty of a corrupt practice or illegal practice at all and if so whether the Petitioner pleaded corrupt practice or illegal practice. Dr. Mulwila attacked the Judgment of the court below on the ground that the court below erred in law when it did not find the first Respondent guilty of corrupt practice or illegal practice after finding that the distribution of the maize and fertilizer was done for the purpose of wooing voters in favour of the first Respondent and with the knowledge of the first Respondent. We have said above that from the way the Judgment of the Court below is couched, the court below indirectly found that the first Respondent was guilty of corrupt or illegal practice. The ground of appeal on failure J 9 by the court below to find the first Respondent guilty of corrupt practice or illegal practice must, therefore, fail. Of course if the first Respondent was guilty of corrupt practice or illegal practice then, as Dr. Mulwila submitted, the election should be nullified in terms of what we said in the Mlewa case. Before we deal with the issue of corrupt practice and illegal practice we propose to dispose of the issue whether the Petitioner actually pleaded corrupt practice or illegal practice warranting the nullification of the election in the Malole Constituency. The grounds upon which an election can be nullified are set out Section 18(2) of the Electoral Act. But the Petition was anchored on Sections 18(C), 20 and 21 of the Electoral Act. Section 19 deals with who may present a petition while Section 20 deals with reliefs which a Petitioner may claim in a petition. Section 18(C), as Hon. Silwamba rightly submitted, does not exist in the Electoral Act. At the hearing of the petition no amendment was made to the Petition for Section 18(C) to read Section 18(2)(C) to signify that the Petitioner was pleading corrupt practice or illegal practice as the allegations in the petition suggest. As we said in the case of Harry Sinkala Vs Electoral Commission of Zambia and Daudi M. Mukwasaf5), Section 18(2) having not been pleaded by the Petitioner and there being no amendment to the Petition it would be a drastic departure from the practice governing pleading to consider it now. However, not withstanding the bad pleading we have considered the question whether on the evidence the first Respondent was guilty of corrupt practice. As we have said above, the court below found in a round about fashion that the first Respondent was guilty of corrupt J10 practice. We must interfere with that finding as it is based on an insupportable view of the evidence. The facts of this case cannot be compared to the facts in the Mumba case or in the Mlewa case as the Court below did. Mr. Mumba personally took part in many activities which the learned trial Judge in that case found amounted to corrupt practice or illegal practice. Mr. Mumba, inter alia, opened a clinic that had been dormant for over five years and supplied an ambulance, a day before the election. After the election, Mr. Mumba withdraw the facilities. In the Mlewa case the Respondent was penalized for the corrupt practice or illegal practice of his party. In the instant case the court below found that the distribution of fertilizer and maize was a government project and that the first Respondent did not personally take part^in the distribution of the maize and fertilizer in Mumba village. However, the Court below found the first Respondent guilty of corrupt practice or illegal practice holding that the first Respondent as a District Administrator when the distribution of maize and fertilizer was done, the first Respondent knew about this distribution and that it was to his advantage. But the Court below did not find the first Respondent’s Party, the MMD, guilty of any wrong doing like was the case in the Mlewa case. Therefore, if the first Respondent is to be penalized, he is to be penalized for his knowledge that the maize and fertilizer were being distributed one month before the elections. But the Provisions of Section 18(2)(C) require more than mere knowledge for an election to be nullified. Leaving out what is not necessary Section 18(2) of the Electoral Act reads: - “18(1)................................ (2) The election of a candidate as a Member of the National Assembly shall be void on any of the following grounds JU which is proved to the satisfaction of the High Court upon trial of an election petition, that is to say: - (a) ................................. (b) ................................. (c) that any corrupt practice or illegal was committed in connection with the election by the or with the knowledge and consent or approval of the candidate or of his election agent or his polling agent.” It can be seen from the above provisions that mere knowledge of a corrupt practice or illegal practice is not enough. The candidate must also consent to or approve of the corrupt practice or illegal practice. In this case, court below only found that the first Respondent knew of the distribution of the fertilizer and maize. But according to the finding of the Court below the distribution of maize and fertilizer was a government project. According to the evidence of PW3, which evidence was not controverted, the programme had been going on since 2000. The question arises whether the first Respondent could stop a Government programme of this nature. The programme was a government programme which did not require the first Respondent’s consent or approval. On these facts we agree with Honourable Silwamba’s submission that although the timing was bad there was no basis upon which the court below could find the first Respondent guilty of corrupt practice or illegal practices warranting the nullification of the election of the first Respondent as Member of Parliament for the Malole Constituency, even if Section 18(2) of the Electoral Act was properly pleaded. J12 The issue, therefore, is not one of corrupt practice or illegal practice but one of the effect the distribution of fertilizer and maize had on the result in the whole Malole Constituency. On the evidence that was before the court below, we must affirm the finding of the Court below that the distribution of the maize and fertilizer by the government in Mumba village was restricted to that village and not wide spread and that it had no bearing on the result of the whole Malole Constituency and that the Petitioner in fact did better in Mumba village than the first Respondent. Therefore, as Honourable Silwamba submitted, the Provisions of Section 18(4) of the Electoral Act apply and the election of the first Respondent cannot be nullified. We find no merit in this appeal and we dismiss it. We declare that Sebio Mukuka was duly elected Member of Parliament for the Malole Constituency. Costs of this appeal will follow the event. Q h?