Mubanga v Chitonge and Anor [2007] ZMSC 189 (19 August 2007)

lst Respondent: Mr M. Chitabo of Chitabo Chiinga and Associates fof the 2nd Respondent: Mr M. Mukwasa-State Advocate preferred to: Michael Mabenga Vs Sikota Wina and others [2003] Z R no Mazoka and others Vs Mwanawasa and others [2004] Z R 138 Lewanika and others Vs Chiluba [1998] Z. R. 79 Legislation referred to: Constitution of Zambia, Cap 1 - Art. 129 Electoral Act No. 12 of 2006 - SS. 82(1) and 93(2)(a) Electoral (code of-conduct) Regulations (S. 1.90 of 2006 - Regs. 4, 6, 7 and 10 JUDGEMENT Mushabati, JS., delivered the judgment of the Court. judgment, respondent as t it as .the [petitioner, !^ tons:: " .both the petitioner and the 1st Respondent were candidates * undisputed facts of this case are tha ncy E|ections which were held on 28th September, Mwansabombwe Parliamentary Consti ue Movement for Multiparty Democracy Party The petitioner contested under the tic inland the lst ResPondent was candidate for the Patf r Jolted the Mwansabombwe seat but did not petitidn'S'i/’’ Were °ther Candidates Respondent was declared the winner of the Mwansabombwe polled more votes than any other of the contesting candidates. Parliamentary Constituency seat Thepetitioner in this case pleaded a number of maloractico*; tn tkn e । attributed to Mwata Kazembe, and these were verified bv in affinor* tu h al1 .... ^mbe were that he actively took part in politics, indirectly or directly, as 1st Respondent's agent. He . ^vermea by an affidavit. The allegations against Mwata . p act,cesinthe said elections which were mainly empaigned for the lst Respondent by telling the MMD party officials not to campaign and vote for the MMD in general and the petitioner in particular. He used intimidation against the petitioner's supporters and some were physically assaulted by him in the presence of the lst Respondent. Other allegations against the Mwata were that he threatened to remove any Headman who did not support his preferred candidate, namely the 1st Respondent. Some teachers were threatened with transfers from his kingdom if the Patriotic Front lost. As for the MMD supporters they were threatened with expulsion from the Mwata's Kingdom. The 1st Respondent and his agents were also accused of engaging themselves, during the campaign trails, in acts of intimidation, violence and bribery. The verification affidavit showed that the 1st Respondent and his part the Patriotic Front, through their agent, His Royal Highness Mwata Kazembe, were engaged in bribery, giving gifts, intimidation, threats and violence against the petitioner and his MMD supporters as proved by exhibits which were Actively marked as "MM1". The second Respondent failed to curb the illegal and immoral campaign tactics used by the lst Respondent and his supporters. Tk Petitioner's case rested on the ev.dence o f civ witnesses including himseltTheir evidence can be ' ^^^.tdl^court that he was one ^^aS:®toyvs, PW1 Maybin. KabambaMubang . y Parliamentary Elections on Elections on. - was an IndependenLcandidate. During ./ ^-tlYJ’atriotjc Front and National Penlo/radCs|g°^o’rt: ' ^e-^ P.a.triqticJrron ^^ySSertgLa.l CommissiMwH%hbwielded great iij and violence on.hls ndent and actively campaigned for the 1st *ence in the area, acted as an agent of the s when he wanted t0 pay a C0Urtesy call on ^Pondent. The Mwata even refused to mee > He was quoted in the Post Newspaper of Sth Aug 2006 as having declared openly his support Fr°nt PartV and that nOt W3nt the P^er tostand , Mwansabombwe Constituen !othwere told that the Mwata did not want the MMD and the petition 1^^^ ^hishila was .further told to inform his subjects in the village to vote for a change as the Mwata did not want President Mwanawasa and the Petitioner. P. W.l paid the fines for his supporters, who, after being assaulted by the Mwata, were detained by the Police and ordered to pay K30.000 admission of (Oiltfines. P. W.l lodged a complaint, both to the Police and District Secretary, of the assaults on his supporters. p. W.2 Cynthia Kasanda, told the court that on 10th September, 2006, whilst campaigning with others for the Petitioner, met Mr George Chilumanda at the market. He told them that if they wanted to see him they could find him at a Guest House called Dikurusi. When they went to the said Guest Hose, they were met by a Mr Mutiti who offered to take them where Mr Chilumanda was. They were instead taken where the Mwata was. The Mwata told them that he did not want any people who mentioned the MMD, the petitioner and Mr Mwanawasa. He warned them that if they were not careful some of them were going to die. The Mwata then closed the door and began to physically assault P. W.2 and her friends. The Mwata was joined, in beating them, Mr Mutiti and Mwape Kabungo. They only managed to escape or run away after the door was opened by the Guest House workers who realized that some property was being damaged. P. W.2 and berfriends, except for Kapensi, who was apprehended when the rest ran away, were summoned back to Guest house by one Kapanshya, the Mwata's messenger. On arrival at the Guest House, they still Mthe Mwata and was then in company of Mutiti, Pepe, Kapondo Superior and the> 1stRespondent. *Mwate-addressed them agamst.campaigning for the^tloneca-UI. he -dent. He t^p u^ duaresseu wen 59 t fq their houses wer^mg^he =^®2ffid£H w ArF^TFi FFSTiTZT ies1 I I I W U • ' Chishala Joseph Kabotolo, a det rone bv^ata Kazembe to his palace th.uugh h.s m ed Village Headman, told the court that he was summoned Kapanshya. As P. W.3 had Just arrived from wrehe had E°ne and felt tired' he Went to the Palace late n= "explained why he was late after which he was told why he hadT d g°ne there late' .instructed that he and his fellow Headmen were to tell th • uSUmmoned t0 the Palace- He ^ent and Mr Sata. Anyone who was to act X 1 1 Sh0Uld f°r the led away. P. W.3 told the Mwata that he (P. W 3) had no * 6 lnstructlons< he/she was to be wanted just in the same way he could not tell them to leavelh What , the Catholic Church. This annoyed Mwata Kazembe whor eir resPective Churches to join him in lhs woofthem was a slave. When P. W.3 answered that he did not .. t v r c ,. 1 nG aid not know, the Mwata said Don't you know thatthe life of chicken is in the hands of its keener and 1 am u . Keeperand! am the one who keeps you and your well being {hal J is in my hands. So have the right and power to do anything to you. As God is the Creator and I am the 'Who retorted by asking P. W.3 who between the . . ., । »,u Y , onewho destroys. Since you have disobeyed me I will sent you to my court so that they can order you to pay two goats and four chickens and remove you from being Headman". Indeed, P. W.3 was later summoned to he Chief's Traditional Court where he never went. He was instead followed to his house where he was informed of his removal from his post as Headman for disobeying the Chief. He was further told that after the elections, he would be chased away from his village so that he could go where the petitioner and President Mwanawasa would be. He denied the allegation that he was removed from his post because he had disobeyed the rule of keeping cleanliness in the village. P. W.4, Mwila Paul Mukeya, told the lower court that when he went to see his mother, who lived 5 kilometres away, he found her away. He followed her to Kasese Community School where she had gone fora Patriotic Front Party meeting under the chairmanship of the 1st Respondent. Whilst at Kasese Basic School, he was called by Beatrice Daka, who, apart from being the Headmistress of the School, was the Presiding Officer for Kasese Polling Station. Beatrice Daka enquired about the health of the people at Kasengu Village after which he was asked as to which party he supported. P. W.3 told Beatrice Daka that he supported MMD On hearing this, Beatrice Daka asked him whether he had not heard of the Mwata's instructions that he (the Mwata) did not want anybody to vote for the Petitioner and President Mwanawasa. The Mwata wanted the people to vote for Patriotic Front Party candidates; namely, the 1st Respondent and Mr Sata. He was told to relay this information to the people of the village of wh ch he did. On 27th September 2006, P. W.4 was given a letter in which the Mwata instructed h.m to inform 51 votSSo vote early . Eventually, P. W.4 was scared of continuingwi^his campaigns Wtold that lybodVwh^aHoTeTummoned to the^ ^Sl^ll^LMw^n s a , s ^d j^ was questioned by - : A^s^006 he was summoneCCQ.fMMwa a Mwanawasa, the petitioner and the MMD Mwata himself why he was campaigning ^ard Councillor whom the Mwata did not wan. Pe°Ple or else he would be made to run mad Thus mg ^ga-phone, he was using for campaigning, o ordered to stop his campaigns for the three . p w5 and as a result he handed the ,„s Gardner Ketty Kabobwa, the last petitioner's ^abombwe Ward, received a report that some ^ansabombwe Police Station. On going to the Police Post P w 6 fo d °hK * police custody. He was informed of how they were beaten and late h hT police Officers confirmed to him that his cadres were taken there bv th m people, in all ten of them were detained out of w c vone h a P°''Ce' n , * ° T d th f T am°Unt' P-W'6 SVmP3thiZed With some °f the — -^0 had children and he paid the fines for them to be released. P. W.6 then made a formal report to the Police r wn ch onlVone had paid a fine of K30,000. The rest n»vtho«m ab0Ut the assault on the detamed cadres by the Mwata. The Police declined to take any action because the Mwata was involved. The 1st Respondent called five witnesses, including himself. The 1st Respondent was the first defence witness. The 1st Respondent told the court that he was a candidate for the Mwansabombwe Parliamentary Constituency on the PF ticket. The seat was contested by three other Political Parties, namely, MMD, UDA and NDF and the fourth candidate stood as an independent. The candidate for the NDF Party was Prince Diuru, the Mwata's own brother. He further testified that he was well versed with the code of conduct for people and parties taking part in an election. They were not allowed to give any gifts during the campaigns. Campaigns were expected to close at 18:00 hours. He denied the allegations made against him by the petitioner that he was always found in the company of the Mwata. On the evidence of P. W.2, Cynthia Kasanda, the Respondent denied being with the Mwata when she and others were summoned by the Mwata and that in fact the Mwata was not his agent. His campaigns were peaceful, devoid of any intimidations and violence. He only learned of the alleged assault on P. W.2 through a Press Article in the Post Newspaper which he saw after the elections. He was the winner of Reseat with 6,818 votes as against 2,400 for his nearest rival. He denied any involvement in the assault of the MMD cadres by the Mwata and also in the removal of P. W.3, Headman Kabotolo, from his post as vil^ge Headman. Neither did the 1st Respondent prevent or stop P. W.6 from carrying out campaigns for Mosen candidate. As for the letter MM1 dated 29th September, 2006 (27th September, 2006) from Mrs Beatrice Daka to P. W.4the 1st Respondent said he had nothing to do with j^as,his^me was not . ^°hediherefnlii^$ad nbbearing on theelections. -• gBB8St« »’•- s n/ V^^SX^mmonv and in this regardith existed a Mwata with powers to cha.r meetings for village nvem lofthe Kah Was even commended by Jos p , |i Ss in his village. Kabotolo's village was erv'sited for inspection but Headman Kabotolo was not ,, and so the villagers were fined a chicken each u/k went to Kabotolo's viHage. on arrival, t^^^ — D. W.2 and rej t0 disperse by Headman Kabotolo Chishishi! the villagers waiting for them but they were vened but it was adjourned because o t0 ~* adman Kabotolo, a!so referred to a ^ce and was subse.uent.y Sat for the SeCOnd P s V|llage Headman because of his insulting and insubordmate behaviour towards his fellow Headmen and the Lunda Royal Establishment D W 2 knrHinatp hphaviour tnu/nrri k- r " ^Zte^ ‘0 the 1St R* and Mr Sata. Neither did he tell them to vote for his own brother Prince Diuru. D. W.3, Prince Diuru Kabeya, one of the losing candidates for the Mwansabombwe Parliamentary Constituency in the elections under review and a Senior Induna of the Mwata, told the court that Headman Chishishila, otherwise also known as Joseph Kabotolo, was removed from his post for insubordination. This was after Headman Chipota (DW.2), Ntumbila and Nfwalo made a complaint against him. When he was removed from his post his subjects were happy. The Mwata had nothing to do with Kabotolo s removal. D. W.3 further said he was not aware of any call made to Headmen by the Mwata on 28th August, 2006. D. W.4 (R. W.4), was Carol Kasanda, one of the women in the group that went to Dikurushi Guest House where they wanted to meet George Chilumanda. As they were going to Guest House, they were singing praise songs about the petitioner. On arrival at the Guest House, Mr Mutiti came to ask them what they wanted. They told him that they were looking for Mr George Chilumanda. When Mr Mutiti told them that George Chilumanda was not there they insisted on seeing him. They were then ushered in and found the Mwata inside. The Mwata ordered the door to be closed so that he could beat them. They, however, managed to escape without any of them being beaten. They were later summoned back to Dikurushi Guest House where they still found the Mwata in Company of two young men and one lady. The 1st Respondent was not there. P. W.2 was also missing as she did not go back with the others when they were summoned by the Mwata. They were summoned to the Palace on 11th September, 2006. ; Whilst at the Palace they were informed, by themessengers, to go-tothe-Police. They toldthe Police: I *Wyfed^S^ eventually fined provokedjthgiyi.wata . - - - g t° the Guest House, The Mwata ordered him to G-St Hc-e with the - _ ndWhat those people wanted. They were looking for Mr George ChHumanda, t e-r campaign ^er. He told them that he was not there but they did not bebeve him. They continued sing,ng the Guest House. On reaching where the Mwata was, he ordered the "^to be C|“XX^ could be apprehended and taken to the Police Station. Those people snn ° ^peredaround and managed to escape _ f Station. ept f°r one man. The apprehended man was taken to the following morning when he (D. W.5) went back to the Police Station, he found that some ladies had been apprehendBd and charged with conduct likely to cause breach of peace, for which they were fined. These are the summaries of the evidence presented before the trial court. The learned trial judge made the following findings of fact in this case. That both the petitioner and the 1st Respondent contested the Mwansabombwe Parliamentary Constituency Seat on MMD and PF tickets, respectively. That the Mwansabombwe Parliamentary Constituency was within Mwata Kazembe Royal Establishment It was also found as a fact that Mwata Kazembe wielded great powers and influence among the people in his Chiefdom. The court made a further finding of fact that the Post Newspapers published some articles in which the Mwata declared that MMD would be leaving his Chiefdom that year and that the Petitioner wo go whether he liked if or not. The articles in question were contained In the lssues ° * Newspapers dated 1st September, 2006 and Sth October, 2006. It was also an ebh h d fact, as^ article oflst September, 2006, that the Mwata had in fact appointe j six man __ ^c§§paig^^ Patriotic Front Party-of-Mr- The lower court further found as a fact that the Mwata had whipped MMD cadres who chanted slogans in support of President Mwanawasa and the MMD Parliamentary Candidate, Maybin Mubanga. I his was contained in the Post Newspaper Issue of 13th September, 2006. It was further established fact, In the „p article that the Mwata, himself, took some nf thD Jiice Officer on duty asleep and the Mwata blasted that^fl^ ’ m the same article the Mwata was quoted as havino hprof Parliament for the said am g ^at the appellant has failed to perform as a Member of Parliament the sa.d area and asked why he should be given another mandate. The court still found as a fact that the MMD cadres or supporters who had gone to Dikurushi Guest House on 10th September, 2006 found the Mwata there and that the Mwata was in fact the proprietor of the said Guest House. Finally, the court stated that it was a fact Headman Chishishila was removed from his post during the campaign trails. The court then analyzed the evidence on record and made some findings of fact. One of such facts was that she did not believe D. W.4's testimony that the cadres were not beaten. On the contrary, she was satisfied that they were beaten or whipped because they showed disrespect to the Mwata and not on political grounds. The court also found that the Headman Kabotolo/Chishishila was removed from his post on the ground that he refused to attend court sitting and not because he disobeyed the Mwata .... „ „ . , nptition because the Mwata did not say he supported Mr in a , the court below rsmiss .^nge, the Patriotic front P^ , a|| that he said he was merely expressing his personal was exercising his rights pursuant» |n l-am lever 11 isiaiMiggf longetdf- ^appellant was dissatisfied with the aPPeal. These are: lower court's decision: hence this appeal. He filed five grounds of I The learned tr'al judge erred in law and in fact and misdirertoH h w « Lot po^rs and influence upon the people in his chiefdom" and yet d“d not fusion of declaring the election of the Respondent null and void. The learned trial judge erred in law and fact and misdirected herself by finding that "That Chief ^firmed his dislike of Mubanga in the Post Newspaper Article: and yet failed to declare that the election of the Respondent was null and void. 3. The learned trial judge erred in law and fact and misdirected herself in establishing that -supporters of MMD went to Nakabanda (D. Kurushi) Guest House and found the Chief, later the supporters were detained and fined" when there is no law which prevents supporters to campaign at night. The learned trial judge erred in law and fact and misdirected herself in holding that "the Chief whipped them (the MMD supporters) not for political reasons but because they did not respect him "when in the same judgment the learned trial judge said" I therefore find that the Chief did say what has been published" in the Post Newspapers that the people of Mwansabombwe should not vote for the appellant. 5. The learned trial judge erred in law and fact in finding that "the Chief wanted change" and yet concluded in the judgment that "I am satisfied that the chiefs utterance published in the Newspaper about MMD and the Petitioner did not adversely affect the parliamentary elections in Mwansabombwe Constituency" the judgment of he Hon. Trial Judge is full of contradictions. These grounds were buttressed with written heads of argument and oral submissions. Grounds one and two were argued as one. The gist of the arguments was that the court below misdirected itself when it failed to appreciate the special position enjoyed by the Chiefs and Headmen in the rural areas in general and in their Chiefdoms and villages in particular. Article 129 of the Constitution of Zambia forbids Chiefs from engaging themselves in partisan politics. Though accepting this provision of the law; the court below found otherwise when it ruled that Mwata Kazembe had not breached t is Article despite d him hyrPnst Newspaper articles. The court below - • ^Tof appeal when it said "when I analyse tfle extract irt'c decisiorr-was thereto^ "seLurgeOiis -court to determine the fart nof^ifly^hgag^ ^found as a fact at page J5^ _ P ci&P,ni.the ^Mwata did not rontgver^^ up to 2006 generalilections „Hs 3 4 and 5 were also argued as one. It was argued that thnm e- J 6roun° a r annual were shocking and • pounds of appeal w re shocking and agamst the spirit of democratic election. The finding that the t the court s findings as outlined in the Mtl0supporters ought not have campaigned after 18.00 hours was not supported by any evidence The court below, however, disbelieved D. W.4 (R. W.4) when she said the MMD cadres were not i)h.pped. she made a specific finding that the MMD supporters were whipped for showing disrespect to tbe Mwata and not for political reasons. The learned counsel for the Petitioner wondered how the court below knew everything that the Mwata Was thinking even if there was no such evidence on record. He posed two questions on why the evidence by the Petitioner s witness on the Mwata's violent conduct was avoided and why the court below concluded that the Chief s utterances, as published in the Post Newspaper about the MMD and the petitioner, did not adversely affect the parliamentary elections in the Mwansabombwe Constituency. Mr Bwalya argued that the Mwata was not an ordinary Chief but a Senior Chief of the Lunda people with sub-Chiefs under him as evidenced by the testimony of D. W.3 Prince Diuru Kabeya. The argument that the Chief was entitled to his opinion as per Regulation 6(1) of the Electoral (code of conduct) Regulations was a wrong interpretation be'eause this pre-supposed that Article 129 of the Constitution, which forbids Chiefs from joining active partisan politics, was subordinate to the said Regulation 6. He urged this court to find that Mwata Kazembe acted and spoke politics when he condemned and whipped the MMD cadres. The Mwata's conduct must render the elections in Mwansabombwe Constituency as not being free and fair and so the respondent's election must be declared void. He, therefore, urged this court to up-hold the appeal. hhis oral submission Mr Bwalya repeated more or less what is already contained in his written heads of argument. He addressed the court on the content of Regulations 4(1) and (2) and 7(l)(a)(e) and (i) of the Electoral (Code of Conduct) Regulation. He said Regulation 4 Imposed a duty on every citizen to be sponsible and maintain peace during the election campaign period so as to render the elections free W. On Regulation 7, he argued that the Electoral Commission and the Police had a duty to see to .t £«the Electoral (Gode of Conduct) Regulations were observed ' '■:C/eme'ntofthe <Wwata in elections under mv. <Tagainst^ by.the.coui ^ejmKisXhTefS t0 have court below found as a fact that the Chief's voice-w; considered the effect oif- hisinflueji^had on the elections’ itW J’Oespoind^ iefduring the= . ecited the case of Mabenga Vs *ence. Sikota Wina(l) in support of his argument relating to the Chief's u. netitioner was refused access to the Mwata for him tn n=„ k IheP ^nmnl.int A^in^t tho M * tl 'm to paV h°™Be. The Police failed to act on the win cadres complaint against the Mwata. The Policp into in Hw and nr<4 j j failed to maintain law and order, rendered thp 1 ct ' being the agents of the 2nd Respondent who 1st Respondent selection, as Member of Parliament, h3dfa a nullity. The rest of submissions were a repetition of the written heads of argument. f, , . . □ , in response to the petitioner's written heads and oral submissions Mr Chitabo filed in written heads and made a brief oral submission. The grounds of appeal were globally argued. Mr Chitabo argued that the burden and standard of proof required in cases of this nature was high as laid down by this court in the case of Mazoka and others Vs Mwanawasa and others(2). He urged us to consider the question whether voters in Mwansabombwe were or may have been prevented from electing the candidate of their choice. He said there was no such evidence. On the participation of the Chief and Headmen in the campaign, Mr Chitabo submitted that it was not the duty of the 1st Respondent but that of the 2nd Respondent to see that they did not get involved in the electoral process. In his oral submissions Mr Chitabo said reference by Mr Bwalya to Regulation 4 and 7 was wrong because these were not alluded to in the memorandum of appeal. On the removal of Headman Kabotolo from his position, he argued that the court coneclly dire^ j M-when it held that he was dismissed cloved by the Chief's Councilformdisciphne; He then - to lodge his complaint to theDist^ Iwas no evidence on-record to suggest that the votersin- maction<tlie c.r-;,: t:.: by Kor-ity "I n-a ny case/h ersub m itted^he^^Rgsp^ ® punished for the Mwata swr ’ ’ , ( ctjnga candidate of their choice as required by Mwansabombwe Constituency were prevented from electing Se«ion 93(2) of the Electoral Act. tearned counsel for the 2nd Respondent did not file anv writton n , £ Th« tear tthnnah tho oral submisslon th t though the Mwata m.sconducted himself, no complaint was reported against him wr|tten heads of argument but made a brief to the District Conf^ Management Comm.ttee. On the report to the Police by the MMD cadres, Mr MuWasa submitted that the court had disbelieved the Petitioner's witness. On the contrary there was evidence on record that the Mwata had gone to the Police to report the MMD cadres for the offence of conduct likely to cause a reac of peace. In view of all that transpired, the 2nd Respondent could not be blamed for failing to action against the Chief. In reply to the Respondent s submissions, Mr Bwalya said the essence of his submission in relation to Section 93(2) of the Electoral Act was on the general atmosphere prevailing during the campaigns. It was not conducive to fair and free elections. He reiterated that there was no dispute that the Mwata had given interview to the Post Newspapers in which he said he did not want the MMD in his Chiefdom and that he did not want both the Petitioner and his Presidential candidate. The Chief further confirmed that he had whipped the MMD cadres. As it will be noted, the Chief picked on the MMD alone, out of all the contesting parties, for his attacks. Though the lst Respondent had indicated in his pleadings that he would call the Mwata as a witness, he did not do so and such failure was self destruction of his defence. On the 2nd Respondent, Mr Bwalya argued that it could not plead ignorance of what was obtaining on the ground during the campaigns. It ought to have been pro-active rather than to being re-active. These are the summaries of the submissions by all learned counsel. I He considered the submissions by all learned co^l andje judgment appealed against m the i^ftthe evidence on reeond.sT3j££ig8i^ SSg to the Mwansabombwe Parliamentary Constituency. °n 2Sth |ti , . f this appea| will depend on the view that we hold as regards sc ear to us that the success or failure ot tnis app 16 sieged conduct of Mwata Kazembe. on the totality °f evidence and submissions, we find that the following facts were of common cause to bothpart'es* That Mwata Kazembe, as the most Senior Chief of the powers and influence among his subjects. Lunda people of Luapula Province, wields a lot of We are also satisfied that ten or so MMD cadres were subjected to physical assault by Mwata Kazembe after which they were reported to he police where they paid admission of guilt fines of K30,000 each. It is also not in dispute that during the run up to the said elections, Headman Kabotolo alias Headman Chishishila of Chishishila village of Mwata Kazembe's Chiefdom, was relieved of his post as Headman just before the elections. As to the reasons why he was removed, we shall allude to them in the course of our judgment. The court below found as a fact and which fact was accepted by both parties that Mwata Kazembe did express what was termed as his personal opinion for his support for a particular candidate and a Political Party. The main issues to be resolved are: W Were the Chiefs conduct and utterances purely personal and a mere expression of his democratic right as a citizen? W Could the Chiefs involvement in the campaigns have influenced the out come of the Parliamentary results .in Mwansabombwe Constituency? and if so did his conduct have any influence on ^ectioh^hd^bspondent as a Member-of Parliament for the Mwpnsabo^bwe Parliamentary - r. .. ........................ ."•srzssn- ^sar., •' '’^aviewtothatoTthe Mwata? : views, from~i~ iTheiK.ar^— f. lrst and foremost we wish to comment on "Ot^de to Regulations 4 and 7 of the Electoral (Code Mr ch|tabo's argument that the memorandum of appeal did Conduct) Regulations as argued by Mr iva Our reaction to this is that points of law are not included in x rc.ihmi«ions MrChitahn'e ded ln the memorandum of appeal. These otters for submissions. Mr Ch.tabo s argument has therefore not basis. |ndealing with appeal, we shall globally consider all the grounds together because they are interrelated. We shall first consider the Mwata's conduct and utterances. Did he act within his democratic rights? This was argued under the combined first ground and second ground of appeal. Mr Bwalya said the Mwata's conduct and utterances were partisan and for that reason he was precluded by Article 129 of the Constitution of Zambia from conducting himself in that manner. He was further under Regulation 10(i) of Electoral (Code of Conduct) Regulations expected as a traditional leader not to exert any undue or excessive influence on his subjects to support a particular political party or a candidate. For ease of reference, we reproduce Article 129 of the Constitution of Zambia and Regulation 10(i) of the Electoral (Code of Conduct) Regulations (S. I. No. 90 of 2006). Article 129 reads: A person shall not, while remaining a Chief, join or participate in partisan politics. Regulation 10(1)(i) of the Electoral (Code of Conduct) Regulations reads: The commission shall where reasonable and practicable to do so: Ensure that traditional leaders, such as Chiefs and Headmen, do not exert undue influence on their subjects to support a particular political party or candidate. It was argued on behalf of the 1st Respondent and found by the court below that the Mwata was only Freising this democratic right in whatever he was doing during the run up period to the elections. we nave to consider the above argument in thejignr or uie -------- -------- T—r- Sii^iSTeht of the law cited above. Mwata Kazembe was; forbids Chi, of 2 '°n of the E eC °ra h t tradition leaders, Chiefs and Headmen, do not exert undue infiT*'3'Where P°SSib'e't0 any particular political party or candidate. This directive under the . I /mde of Conduct) places an obligations the Electoral Commission ^ul^i^XThltcSs and Headmen are not expected to use their positions to exert their ic,|.!«»»»» I"»«« .to enshrined in !!(„ „ ,hc Th|S section reads: |1> Na person «! d|^ „ i-t^ (a) make of or threaten to make use of any force violpnrn nr • a. ' oience or restraint upon any other person; (Hl |nflict or threaten to inflict by oneself or by any other person, or by any supernatural or non- natural means, any physical, psychological, mental or spiritual injury, damage, harm or loss upon or against any person; and (c) do or threaten to do anything to the advantage of any person; In order to induce or compel any person (i) to register or not to register as a voter; pi) to vote or not to vote; (iii) to vote or not to vote for any registered party or candidate; (iv) to support or not to support any registered party or candidate; or (v) to attend and participate in, or not to attend and participate in, any political meeting, march, demonstration or other events; (d) interfere with the independence or impartiality of the commission, any member, employee or officer of the commission; (e) prejudice any person because of any past, present or anticipated performance or a function under this Act; (f) advantage, or promise to advantage, a person in exchange for that person not performing a function under this Act; or fe) unlawfully preventing the holding of any political meeting, march, demonstration or other Political event. l^agThis was not dfspCgej r. aign rules was that peop e w therefore credit that part of testimony and find that it hours every day and "reasonable and unaccep supposed to be sleeping and others just relaxing or suPPorters did at night when some people were supp toying peace. It was wrongful to campaign after 18.00 hours. ■c dear from the above that the court below was iustifvina^ z ltl$c 4-kfho Flprtnral Art Nn 19 of nnnr- 'Y ng the Mwata s action against the MMD's jrp$ Both the Electoral Act No. 12 of 2006 and the Flprtnrai c o cadre . ..... e sectoral (Code of Conduct Regulations S.l. 90 of do not have a prohibitive or restrictive provision on time for understand where the learned trial judge derived the above conclusion. □ u ^1. vision on time for campaigns. We do not, therefor P. W.3, Headman Chishishila, told the lower court that when he was summoned by the Mwata he was instructed to go and inform his subject in the village to vote for the 1st Respondent and Mr Sata and was warned that those that would resist this directive were to be banished from the area or village. When P. W.3 refused to comply, he was told that "the life of a chicken was in the hands of its keeper and p. W.3's life and well being were in the Mwata's hands? It did not take long before this witness was dethroned from his post as a Headman. Given the above incidents, we do not believe that these were mere coincidences of victimization of the people who supported the MMD in general and the petitioner in particular. We perceive the Mwata's conduct as being partisan and in his stance, he did not like the MMD and the Petitioner. His conduct went beyond the exercise of his democratic rights as a Chief. By his conduct, he breached Article 129 of the Constitution of Zambia and Regulation 10(l)(i) of the Electoral (Code of Conduct) Regulations. We wish briefly to look at the assault on the MMD cadres and removal of Headman Chishishila from his post as Headman. We have already said above that it was not a mere coincidence that both the assaulted cadres and the dethroned village Headman belonged to the Petitioner's camp, so to say. They ^re punished because of the political view they held which were in conflict with those of the Mwata. .^walyasubmittecSfethis was done inordert^tth^poli^ band, it was argued on behalf of the respondentW whipping ■----------------- eTac1 Asf ’ ’ • Or p. W.3, the argument was that e had the summons for his appearance before the whipping of the cadres was not in contention but Traditional Court. As we said above tn ,he ^son giving rise to the punishment meted out. .p time the cadres were punished, the Mwata was not alnne c Atth MthA Police to rpnnrt the ; Really g°t0 tbe ^ort the lncident after the cadres had been beaten? Obviously his Ot alone-So was !t really necessary for him to W3S Th MM es h T °f P°liC6 hiS WOng doinS b* P™aili"S over the t0 have the MM D cadres charged with the offence of conduct likely to cause a breach of peace. Roth the petitioner and P. W.6 made attempts to formally report the assault by the Mwata but the Police took no action. The Petitioner and P. W.6 may not have reported the matter to the District Conflict Management Committee but we believe that a formal report was made to the Police. We find that Mwata Kazembe's conduct was not of a Senior Chief but that of a politician despite the provisions of Article 129 of the Constitution of Zambia which forbid Chiefs from taking part in partisan politics. What we have said above still brings us to the conclusion we made elsewhere above that the Mwata's conduct was politically motivated. We now come to the last issue. This is whether the Mwata's conduct influenced the voters in Mwansabombwe Parliamentary Constituency to vote in a particular way. The court below found as fact that the Mwata had used very strong language against the MMD and the petitioner. The court, in so finding observed as follows: I must say that the Chief used very strong language when he said "you will prove me right or Mr Mubanga right. Whether he likes it or not he is going". The court below however, viewed such evidence as not being enough for a reasonable mind to accept it as being adequate to support the petitioner s contention. ^t^oh-thraetffiat wfiaHhe Cfflefis quoted to hm sphere cannot be looked at jn| the ist Responded (also/ ata>al1 of Patriotlc ron ’ iandPW5 Webby Mwansa. P. W.4, Mwila Paul Mukeya, was lals° known as Headman Chishishila) and P.w.s, we y r,“en a letter in which he was urged to vote ,o tn vote for the 1st Respondent. I Wh asneaama , have no doubt that the Mwata's conduct and utterances 1^^ „ * partisan and supported the 1st Respondent and Mr Sata His act ° Lely exercising his democratic rights which in a matter like this 00^7^ mere ’ ■ cp|f as a voter and casting a vote on the polling rhv hi^35 campaign for or openly support one particular candidate. , . .. „ lne P01l|ng day, for a candidate of his choice, but not to e IKe tnis ought to be restricted to registering registering Mr Bwalya argued that the findings of the trial judge were against the weight of her finding on what the mwata was quoted to have said in the Newspaper. This is what the court below said; when I analyse the extract from the Newspaper on page 1 of the petitioner's bundle of documents, it is clear that the Chief spoke strongly against the M MD and the Petitioner in particular. The court accepted the fact that the Chief spoke strongly against the MMD and the petitioner. It is surprising that the court below, despite making a finding of fact that the Chief spoke strongly against the MMD in general and the petitioner in particular, when he (the Mwata) said he was disappointed that the MMD had failed to develop his Chiefdom, still found that he was not being partisan but merely exercising his democratic right under Rule 6(1) of the Electoral (Code of Conduct) Regulations. This Regulation states: Every person shall subject to Regulation 7 have the right to: (a) (b) express political opinions debate the policies and programmes of political parties. The learned trial judge addressed her mind to the constitutional provision under Article 129 of the institution, which Mr Bwalya said was superior to the Regulation 6(1) of the Electoral (Code of induct) Regulations. She, however, failed to appreciate its o^gdin^ 0^>^hishisinconflirt^^ .........® in his area P. W.2. P. W/.3,TSV:43hd;' p„,. L^ffiiland the petitioner for.fear of victimization by the Mwata. Both ■ -5 stopped campaigning for t^e. where they were ta|ked t0 by the Mwata P'W'5 ^/""the MMD and the petitioner. P. W.5 was warned that if he did not eIf against campaigning for the iv """Plv with the instructions he would run mad. .fence, the 1st Respondent merely said he could not speak for the chief , r • ./mild call the Mwata as a witnocc k + u jofpnce would can tne iviwaia as a witness but he was nnt Tko he Chief. In fact it was indicated that ^political party or candidate. ' ""°n their *t0 in the submission regarding the Mwata's influence on his subjects, we were referred to our earlier decision in the case of Mabenga Vs Wina(l). In that case, the appellant had ferried some Indunas for a secret meeting to boost his election campaign. The appellant had, however, disputed this allegation but was disbelieved. We did say it is clear that the Indunas were collected at his instance, certainly to be partisan. This was a secret meeting organize by the appellant for the purpose of soliciting them and their subjects' support in the election." In the instant case before us, we are not dealing with an ordinary Induna; but a Senior Chief. If we can hold that mere Indunas are capable of influencing their subjects in one way or the other; what will make the Senior Chief fail to do so? In this case, we are satisfied that the removal of the Headman Chishishila from his post by the Indunas was influenced by the Mwata, though he, himself, as a Headman should also not have involved himself h partisan politics. We have no doubt that the Mwata's active role in partisan politics in this case disadvantaged the petitioner who was the target of his (Mwata's) vicious campaign against him in Particular and MMD in general. it. , 1 *s also clear in our mind that the Mwata s condu ^wted-from freeiv^ind fa riy choosing or electing a cano care o, u «i niuui , J T nJedto illegal c^gicesMag^^ -; —— such that a.good numbcr_ofyo.te^ own choice.-. The Mwata's ————- whose •jecis-. .. t ' jous pieces of legislation; namely: Article 129 of the e ^Wata acted in total disregard of the varl°^ f 2006 and Regu|ation 7(l)(a)(c) and, (e) of >«Kod. of conduct) ” »< “ X Vlfe have no doubt the high standard of proof cast on .. W, therefore, declare that the elections in Mwansabombwe Parliamentary Constituency were not free and fair and we are therefore bound to disturb the lower court's findings of both law and fact. We, therefore, declare the election of the lst Respondent as Member of Parliament for the Mwansabombwe Constituency as void, though we find no wrongdoing on the part of the 2nd Respondent in the conduct of the elections. The Judgment of the High Court is set aside. The appeal is allowed. Costs shall follow the event, in default of agreement, they shall be taxed. E. L. Saka la CHIEF JUSTICE D-K. Chirwa SUPREME COURT JUDGE Chitengi SUPREME COURT JUDGE c$. Mushabati “MU‘l °™N« ANO ELECTORAL COMMISSION OF ZAMBIA 5UPREME court Sakala, Ch, Chirwa, Mumba, Chitengi and Mushabati; JJS. On 10th July, 2008 and 12th August, 2008 SCZ APPEAL NO. 66 OF 2008 Flynote Parliamentary election petition-effects of a chief's involvement in active politics, under influence on voters through threats of evictions from the kingdom.' Headnote The senior chief in the constituency had a preferred candidate and ordered his subjects to vote for that candidate. Voters were threatened with evictions and some were physically assaulted for disobeying the °^er to vote for the candidate and his political party. actively partici Appellants: Mr K. F. Bwalya of KBF and Partners