Mutale v Mukuka and Anor (Appeal 45 of 2003) [2003] ZMSC 178 (23 December 2003)

yjggEME COURT OF ZAMBIA —-Hi ” H^[atl^^ ' APPEAL No, 45/2003 „ MATTER: THE ELECTORAL ACT, CHAPTER 13 SECTION. IN TH11' 18(C), 19 AND 20 OF THE LAWS OF ZAMBIA EbEG rT1ONFOR: PARLIAMENTARY ELECTION FOR MALOLE CONSTITUENCY HELD ON THE 27th DECEMBER, D in THE MATTER OF: AN ELECTION PETITION BY MATILDAH MACARIUS MUTALE - $ BETWEEN: • MATILDAH MACARIUS MUTALE Appellant * AND SEBIO MUKUKA Respondent ELECTORAL COMMISSION OF ZAMBIA 2nd Respondent . Coram: Sakala, CJ, Lewanika, DC J, Chirwa, Chibesakunda and Chitengi JJS On 17th September, 2003 and 23rd December, 2003 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._rjgwira of Messrs Libertas "T’ ; Chambers L ~^=4ppe^ JS, delivered the Judgment of the Court. " j Levison Achitenji Mumba Vs Peter William Mazyambe Daka Appeal No. 38 of2003 (unreported) 2 rflewa 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. to a narrow compass, for the purpose oLthis appeal, the facts of - ' - 'r~‘~--- ; briefly that the Petitioner, contested the Malole tripartite elections orf^?tfcket^ ; • I -S&ted i Party person^wh^ -------- - .• t-- _ • __ * - Malole. _Parliamentary Constitwency -was the- first . : " U ' Stood“on the ticket of anotherpolitical party called the f°r Multiparty Democracy (MMD). ...........‘OnCr nCr teStified that the first Respondent and 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 Qlso give 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 givdn 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 the Ministry 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 Respondent. The first Respondent did-npt^e the . electorate the gifts and distnbute .’.nit. -—J fertilizer and maize as alleged-by the ____ ARespondent andhis ■ Accorymg. ^ich^ghinc^^ ^nst Mainutrit^ of ~TZZ” pnral Deyelppn^t’^roject^and^Programme No civic leaders were involved in this Programme which has bee ^^agement Committee was respo iblc for distribution. The. District Management Committee comprised repres NGOs and the Community. The Hmt Respo„dent as ^istrator was the overall boss of al! the Government Departments fM KSOO,000.00 was formally applied for by Chewe Primary Sehoo! PTA md 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 that 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 coining in December, 2001. In tonsequence of this, the court below found that the distribution of fertiliser and maize in November 2001 was for campaign purposes and meant to influence the electorate and, therefore, to the advantage of the tat Respondent. The court belp»jl.s«»d •»“ ““ - been key position of^trirt^ Sv- < d'stributi^ f^ it personal||||^^ Respondent did not —..... , h question to itself of whether the e Court below then PoS amoUnted to a corrupt practice on the dlstribution of maize and fertilize of the first Respondent. ,..... 1VWC1 quarts reierenep . . ease .„ which we to ca>se of Levison Achitenfi Mumba s e echon, and her associating herself with the Ending of the trial judge in that case that what Mr, Mumba did amounted to corrupt and iHegal practice, the Court below, i„ „ur &und, in a „und 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. .1 -------- ~ T :b35CO£noS® : «ha argued as ihe. The two grounds of apperd are these.- ‘1, The learned trial Judge having found as a fact that the distribution of maize and fertilizer in Mumba 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 practise under the Electoral (General) Regulations 1991 (SJ. 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 eigetjonQ?^ "mad^clear^that^^ 18(2)(c) tftheEtectgratA^ to : engages in corrupt or illegal practices before , during or after an election. Consequently, Dr. Mulwila submitted that conduct complained of by the Petitioner aiu r . tMitinner did not have to affect the result of the whole Malole Constitu y ; X for the election to be nullified, yuiIlcient t0 S|1qW 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 not raise 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 Petitioner’s 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._____ Electoral. Act-appfies^^ spbmittg^^ does^/^i^S^ this petition is drafted in similar fashion as in MuJcwasa case. ~ ur. ™lla submitted that the fM ae &st indent knew of the distribution of marie and ferlitar was sutr,dent. As to the grounds of appeal, Dr. Mulwfla 8„unds 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, tills 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 gunty. ofccorrupt practice or illegal practice after-finding that the -.... distfcU-of the maize^nO^^^^ ^^^rs^Respprndent. - • ———.. Wa Z have~said above that from me w j . r^m the way the Judgment of the Court below u Is couched, the court below indirecuy i indirectly found that the first Respondent guilty of corrupt or illegal pracuc nractice. The ground of appeal on failure , -.......... 7......... ° UUU LnC UrSt indent guilty of corrupt practice or illegal practice must, therefore, fail. Of course, if the first Respondent was of 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), 19 and 20 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 m said in the ease of Harry Sinkala Vs Electoral Canonist nf Zambia ant DauHl SraUon wuld be a drastic departure Iron, the JSSMiaSO! M W^errilmbw. - ”• - H°WeWnot-^ ~:---•-------- bad pleading,wehavegonsiderecFthe ' Nation whether on Uie evidence the first Respondent was guilty of C0l^Pt practice. As we have said above, the court below found in a r°und about fashion that the first Respondent was guilty of corrupt insupportable view of the evidence. d °n an ’^rtere with that finding as'it is ha a The facts of this case canno t'be compared to the facts in the Mumba case or in 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. 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 withdrew 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 party 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. Dut the Court below did not find the first Respondent’s Parly, the MMD, guilty of any wrong doing Ife was the case in the Mlewa case. = Therefore, if the first Respondent isto be penalized, he is to be penalized ^Orhis knowledge-that-the maize and fertilizer were bgi^^MJute^ne, SSjo.nth bcforc f-^ ^Ore than mere knowledge^ ......... " ‘ ' ....................... ..... - -■ ..riwg i Sectjonl8(c) require- -------- -r” ■“ - be nullified^ d^aying^^ ■ is notnecessaiy. Section :18(2).-^ Act readsF^^^ .... (2) The election of a candidate as a Member of the National Assembly shall be void on any of the following grounds « provea co trte satisfaction of the High Court upon trial of an election petition, that is to say: - W................................... W.......................... (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, the 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 which did not require the first Respondent’s government programme consent or approval. these facts, 4ve agree with Honourable.®^ that ^^otigh thetiming. was bad there was..no -basis_uf^ni^zhich^he.c.ourt.^.: J^coul&Kave^dd'lhe ^st Respondent ^^&raBgfewSriting the nullification of first ' ~ Section 18(2) of the Electoral Act was properly pleaded. of the effect of the distribution'^^ T “ rssult ,•„ the whole Mal* Constituency. “ 0» fte evidence that was before the court below, we „™st off™ 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 e Constituency. Costs of this appeal will follow the event and to be taxed in default of agreement. D. M. LEWANIKA DEPUTY CHIEF JUSTICE ^ L. P. CHIBESAKUNDA SUPREME CQ^RT. JUDGE - ......... n'TOcHIRWA SUPREME COURT JUDGE