Mhone v Electoral Commission and Another (Election Petition 11 of 2019) [2019] MWHCCiv 12 (16 September 2019)

IN THE HIGH COURT OF MALAWI MZUZU REGISTRY ELECTION PETITION NO. 11 OF 2019 BETWEEN RAPHAEL JOSEPH MHONE ..........0.cccccssscscsesevevesevenestsesereseeceeseeeeeeeeees PETITIONER AND THE ELECTORAL COMMISSION ........cccescccssesceseeeeeeceseerseeeeseseee 1S" RESPONDENT SYMON VUWA RAUNDA co cacaewsssexeusingasmeadyseawuceaisesrearermaeeeresn 2ND RESPONDENT CORAM: HON. JUSTICE T. R. LIGOWE W. Mwafulirwa and B. Kondowe of Counsel for the Petitioner W. Chibwe of Counsel for the 1*t Respondent L. Mbulo of Counsel for the 2"! Respondent F. Mwakhwawa Luwe, Court Clerk J. Chirwa, Court Reporter JUDGMENT Ligowe J Introduction l Mr Raphael Joseph Mhone, the Petitioner, Mr Symon Vuwa Kaunda, the 2"! Respondent and others, contested for the election of member of the National Assembly for Nkhatabay Central Constituency in the tripartite elections that took place on 21*' May 2019. The Electoral Commission returned that the Petitioner got 6407 votes while the 2" Respondent got 6415 votes and declared the 2"! Respondent winner of the election. The Petitioner contests the election alleging undue return of the 2"! Respondent as the winner on three grounds. ty (a) The result sheets for Chisu, Msinjiyiwi and Msani polling stations are discrepant and the discrepancies are of such a magnitude as to go beyond the difference in votes between the Petitioner and the 2"! Respondent so that it is necessary to examine form 066b and declare the Petitioner winner of the election. The petitioner asserts that the result sheet for Chisu shows the 2" Respondent got 393 votes when it should be 303 votes. The result sheet for Msinjiyiwi shows that the results for the 2"! Respondent were altered to read 130 votes instead of 30. And the result sheet for Msani shows the petitioner got 223 votes when it should be 225. (b) The Petitioner’s monitors were not given result sheets or allowed to sign for the results in at least three centres so that it is necessary to conduct a recount of the votes and verify the results. It is alleged that the monitors were barred from witnessing the counting and were not allowed to sign result sheets for Chisu, Bwikiti and Sanje polling stations. It is alleged further that the Petitioner and his supporters were barred from collecting result sheets for Sanje polling station and were beaten by the 2™ Respondent’s supporters. (c) The ballot box for Sanje polling station came to the Constituency Tally Centre without being sealed. The Petitioner seeks the court to declare him winner of the election or alternatively order a recount of the votes for the whole constituency or at least the discrepant polling stations or order a rerun of the election under the powers vested upon the court by s. 114(4) of the Parliamentary and Presidential Elections Act. Sworn statements in support and in opposition to the Petition The Petition is supported by sworn statements of Raphaele Joseph Mhone, Welman Chirwa, Elucy Sanga, Maggie Manda and Geoffrey Chimaliro filed on 31 May 2019. The 2" Respondent was first to respond with sworn statements in opposition sworn by Symon Vuwa Kaunda, Anderson Felix Sisya, Checkson Phiri and Ekwania Vwatapu Chirwa filed on 10" June 2019. Thereafter, the 1‘ Respondent filed sworn statements in opposition sworn by Ankton Swaya, Bonster Lungu, Gaster Kamanga, Aticken Nyirongo and Raphael Mwasi on 17" June 2019. The petitioner replied with Raphael Joseph Mhone swearing a statement in response to Gaster Kamanga’s statement and another in response to Ankton Swaya’s statement on 18" June 2019. He also on the same day filed sworn statements in reply sworn by Welman Chirwa, Maggie Manda, Elucy Sanga and Geoffrey Chimaliro. There are also on record sworn statements in response by the Petitioner filed on 11" June 2019 sworn by Welman Chirwa, Raphael Joseph Mhone and Elucy Sanga. The Respondents gave notice to cross examine the deponents for the sworn statements in support of the petition and so Raphael Joseph Mhone, Maggie Manda, Welman Chirwa and Elucy Sanga were cross examined. The Petitioner sought to cross examine Aticken Nyirongo and he was cross examined. Maggie Manda and Welman Chirwa were cross examined on the record log book for Chisu polling station, some pages of which were exhibited to the sworn statement of Aticken Nyirongo filed on 17" June 2019. Later, on 24" July 2019 I allowed the Electoral Commission to amend Aticken Nyirongo’s sworn statement so as to exhibit the whole record log book with a view for the court to make a just decision regarding the log book, fully knowing its contents and significance. I also allowed the Petitioner to file a sworn statement in reply to the log book if need be. The amended sworn statement was filed on 24" July 2019. I notice that on 30" July 2019 the Petitioner filed a sworn statement in response to the application to amend Aticken Nyirongo’s sworn statement and skeleton arguments it response to the application. By this the Petitioner missed the point. I had already allowed the amendment on 24" July 2019 and what was needed is evidence in reply to the facts showing in the record log book if necessary. 10 12 Preliminary Issues I allowed the legal practitioners for all parties to make final written submissions after hearing of the matter. Counsel for the Electoral Commission first raises that it is not clear whether the present petition was brought under s. 100 or 114 of the Parliamentary and Presidential Elections Act. He argues that if it were under s. 114 it would have been an appeal against the decision of the Commission confirming or rejecting the existence of an irregularity. There being no such decision made in this case, the petition is premature. Counsel cites the case of Limbikani Kalilani and 8 others v. Electoral Commission and 10 others, Electoral Case No. of 2019, where the court found a petition brought under s. 114 misconceived and dismissed it because it was brought without the Electoral Commission having made a decision confirming or rejecting the existence of an irregularity. In his submission counsel for the Petitioner insists having brought the petition under s. 114 because the Electoral Commission declared the 2"! Respondent winner of the election despite the Petitioner’s complaint made on 22"4 May 2019. I notice however that although the petitioner states that his complaint was not formerly responded to by the Electoral Commission in his sworn statement on 18" June 2019, in response to Gaster Kamanga’s statement, he also states he heard the Chairperson of the Commission stating at a Press Conference that investigation had been made and upon recount of the votes it was found that the 2"! Respondent won the election by eight votes. This issue will be resolved by the manner the petition has been couched and argued before this court. It is clear when you read it that it is not an appeal against any decision of the Electoral Commission confirming or rejecting any irregularity complained by the Petitioner or anyone. I quote :- “Your Petitioner humbly submits that there was an undue return of the 2" Respondent as the winner of the Parliamentary elections for Nkhatabay Central Constituency and prays that the court should declare me as winner based on votes counted or alternatively order a recount of the Parliamentary votes for the whole constituency or at least in the discrepant polling stations or a rerun under powers 13 14 15 vested upon it under section 114(4) of the Parliamentary and Presidential Elections Act. ...” Section 114 (4) gives power to the court to direct scrutiny and recounting of votes if satisfied during proceedings of an election petition that such scrutiny and recount are desirable. It is not the enabling provision for lodging an election petition to court. The enabling provision is s. 114 (1) and it states that:- (1) An appeal shall lie to the High Court against the decision of the Commission confirming or rejecting the existence of an irregularity and such appeal shall be made by way of a petition, supported by affidavits of evidence, which shall clearly specify the declaration the High Court is being requested to make by order.” The language of the petition and the approach the parties have taken in arguing it, is not commensurate with s. 114 (1). It is rather the language and approach of s. 100. The same provides that: - (1) A complaint alleging an undue return or an undue election of a person as a member of the National Assembly or to the Office of the President by reason of irregularity or any other cause whatsoever shall be presented by way of petition directly to the High Court within seven days including Saturday, Sunday and a public holiday, of the declaration of the result of the election in the name of the person — (a) claiming to have had a right to be elected at that election; or (b) alleging himself to have been candidate at such election. I therefore hold that this is in essence a petition under s. 100 of the Parliamentary and Presidential Elections Act. Let me mention that there are several ways to commencing election matters in the High Court. S. 76 (3) of the Constitution mentions of the right to appeal of any person who has petitioned or complained to the Electoral Commission. So does s. 114 (1) of the Parliamentary and Presidential Elections Act which specifically states that the appeal has 16 to be made by way of petition. The other mode is judicial review of the exercise by the Electoral Commission of its powers and functions, as provided under s. 76 (5) of the Constitution. The third is when a Returning Officer after rejecting nomination papers of a candidate under s. 40 of the Parliamentary and Presidential Elections Act, upon request of the candidate or his election representative, submits to the Registrar of the High Court a signed statement of the facts and his opinion together with the nomination paper or any certificate or affidavit lodged with the nomination paper, for hearing and decision by the High Court at the earliest opportunity. The fourth is a petition alleging an undue return or an undue election under s. 100. And then in any other event, an application under Order 19 rule 13 of the Courts (High Court) (Civil Procedure) Rules 2017. These are what would concern Parliamentary and Presidential elections. There are similar modes concerning local government elections under the Local Government Elections Act. It is here that I should tap from the wisdom of Justice of Appeal Chipeta SC in his paper on “Modes of Commencing Election Matters” (unpublished), presented at a symposium for Judicial Officers on electoral dispute resolution at Nkopola Lodge in Mangochi on 11" and 12" April 2019, that: - “We need to note that the selection of what mode of commencement to go for in commencing election legal proceedings is tied to the circumstances that have bred the grievance meant to be pursued. It is thus not a matter of blind choice how one commences proceedings in an election scenario. The election season is generally an exciting and emotive one, and people tend to get carried away with their emotions even as they take up legal proceedings to address their grievances. As Courts, however, we need to remain sober and recollected so that we can clinically and properly assess whether the particular election matter that has been brought to us does or does not conform with the mode of commencement it claims or purports to be in line with. This we must do whether the matter be brought under the Constitution, under the PPEA, under the LGEA, under the new Civil Procedure Rules of the High Court, or under any other relevant electoral piece of law. We ought to be at the forefront of demanding compliance with laid down modes of commencement and procedures, and to be very vigilant against entertaining 17 18 19 passionate arguments from litigants that are purely based on urgency and convenience considerations. Earlier in the paper, in emphasizing the importance of correct modes of commencing election matters, Justice Chipeta states: - “In life to reach a destination you desire you need to know the available paths as well as the means of getting there. When you follow them you arrive at the desired destination without problems. If you do not do so, you could either end up nowhere or end up somewhere else. In like manner in civil litigation, which would include litigation in election matters, the mode by which you commence any legal process matters a lot and it determines the outcome you can in the end expect from the Courts. You may therefore as a stakeholder in elections be genuinely aggrieved about what a voter, a candidate, the Electoral Commission, or any member of staff on duty in relation to elections or to matters connected therewith might have done, but if you do not follow the procedures the law has sanctioned as your means of ventilating such type of grievance, you might not be in a position to get the remedy you believe you deserve. Instead your matter might get thrown out of the Courts on technical grounds without you fully comprehending why, and you may then erroneously end up viewing the Courts as not having been of any assistance in the resolution of your concern.” For the present petition, as earlier said, my holding is that it was commenced under s. 100 of the Parliamentary and Presidential Elections Act. Counsel for the Electoral Commission also argues that the statements sworn by Raphael Joseph Mhone are purely hearsay having not provided the sources of his information and the basis of his belief as required by Order 18, rule 6 of the Courts (High Court) (Civil Procedure) Rules. The rule provides that: - (1) Subject to sub rule (2), a sworn statement shall only contain facts that the deponent is able to prove with his own knowledge. 20 21 22 23 (2) A sworn statement may contain a statement of information and belief provided the sources of the information or the basis for the belief are also set out in the statement.” Counsel relies on the case of The State and Malawi Electoral Commission Ex parte Ellock Maotcha Banda Election Case No. 13 of 2019 (unreported) where applying Brown Mpinganjira vy. Rev. Dumbo Lemani and Davis Kapito, Civil Cause No. 222 of 2001 (unreported), Justice Professor Kapindu held that the use of hearsay sworn statement evidence is not admissible to prove substantive issues in dispute in a matter but interlocutory applications. I also hold the same view, and for this reason I will not base this decision on any hearsay evidence either given by Mr Raphael Joseph Mhone or Mr Symon Vuwa Kaunda regarding the undue return of the election. There is more reliable evidence of Returning Officers, Presiding Officers, Polling Station Officers and Political Party Representatives who were on the ground at the polling stations where the matters complained of arose. Issues for determination Essentially, the Petitioner’s sworn statement of 31 May 2019 sets out the assertions forming the basis of his complaint in this petition. These are the issues the court is called upon to determine. He contends that the 2"! Respondent should have got 6225 votes while he should have got 6409 votes and returned winner of the election. He exhibits a form MEC POLL 066b for Chisu School marked ““RJM2” which is so faint on the result recorded in figures for Symon Vuwa Kaunda but “three hundred and three” in words. He also exhibits from MEC POLL 066b for Msani School marked “RJM3” showing that he got 223 votes but contends this should have been 225. He further exhibits form MEC POLL 066b for Msinjiyiwi School marked “RJM4” showing that a 0 was changed to 1 on Symon Vuwa Kaunda’s results so as to read 130 in figures but the entry in words has no alteration. 24 20 26 27 The Petitioner also asserts in the sworn statement that his monitors were barred from witnessing the counting and were not allowed to sign result sheets for Chisu, Bwikiti and Sanje polling stations. And his party officials were beaten and barred from collecting result sheets for Sanje polling station despite permission of the District Returning Officer. He also asserts that the ballot box for Sanje polling station came to the Constituency Tally Centre without being sealed, but the Returning Officer still allowed the results given by the Presiding Officer verbally. Burden and standard of proof Counsel for all the parties in this case do agree in their skeleton arguments and submissions that it is upon the Petitioner to prove the assertions of his petition. The principle was clearly stated in Commercial Bank of Malawi v. Mhango [2002-2003] MLR 43 that the burden of proof lies on a party who substantially asserts the affirmative of an issue. The court in the case of Raila Odinga & 5 Others v Independent Electoral and Boundaries commission & 3 others [2013] eKLR had the following to say after reviewing case authorities from Kenya, England, Nigeria, India and Zambia which is more persuasive, [195] There is, apparently, a common thread in the foregoing comparative jurisprudence on burden of proof in election cases. Its essence is that an electoral cause is established much in the same way as a civil cause: the /egal burden rests on the petitioner, but, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting. Ultimately, of course, it falls to the Court to determine whether a firm and unanswered case has been made. [196] We find merit in such a judicial approach, as is well exemplified in the several cases from Nigeria. Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections. It is on that basis that the respondent bears the burden of proving the contrary. This emerges from a long-standing common law approach in respect of alleged 28 29 30 irregularity in the acts of public bodies. Omnia praesumuntur rite et solemniter esse acta: all acts are presumed to have been done rightly and regularly. So, the petitioner must set out by raising firm and credible evidence of the public authority’s departures from the prescriptions of the law. All the parties also agree on the standard of proof that it has to be higher than on a balance of probabilities but not beyond reasonable doubt as in criminal cases. Counsel for the Petitioner has cited the case of Joho v. Nyange and another (2008) 3 KLR (EP) 500, where the court said: - “The burden of proof in election petitions lies with the petitioner as he is the person who seeks to nullify an election. While the proof has to be done to the satisfaction of the court, it cannot be said that the standard of proof required in election petitions is proof beyond reasonable doubt. Like in fraud cases, the standard of proof is higher than on a balance of probabilities and where there are allegations of election offences a very high degree is required.” He also cites the Ugandan case of Winnie Matsiko v. Buhihuga Winnie L. E. M., Election Petition Appeal Case No. 9 of 2009 quoting Kikonyogo DCJ where he said: - “It is now settled law that the present formulation of 62(3) (now 63(4)) Parliamentary Elections Act requires that the court trying an election petition under the Act will be satisfied if the allegations/ grounds in the petition are proved on a balance of probabilities, although slightly higher than in ordinary cases. This is because an election is of greater importance to the individual and the nation at large.” Counsel for the 1*' Respondent relies on the Ugandan case of Dr Kiiza Besigye v. Yoweri Kaguta Museveni and another (Election Petition No. | of 2001 [2001] UGSC 4 (6 July 2001) holding that the standard of proof required must never leave the court in doubt as to what is sought to be proved although it should not be beyond reasonable doubt as is the case with criminal matters. 10 31 32 33 34 Counsel for the 24 Respondent has also cited several case authorities including Benard Shinali Masaka v. Boni Khalwale and others [2011] eLR where Lenaola J stated: - It is now trite that election petitions are a special category of cases and reading the authorities submitted by parties, ] am in agreement with Maraga J. in Joho vs Nyange & Another [2008] 3 KLR (EP) 500 and Rawal J. in Onalo vs Ludeki & Others [2008] 3 KLR (EP) 507 where the learned judges held the view that the burden of proving any allegation made in a Petition lies with the Petitioner. Further, I agree with the proposition grounded on the decision in Mbowe vs Eliufoo [1967] E. A. 240 that any allegations made in an election petition have to be proved to the “satisfaction of the court”. Like Rawal J. in Onalo, | am certain that the standard of proof, save in matters where electoral offences are alleged, cannot be generally beyond reasonable doubt, but because of the quasi — criminal nature of some election petitions, it is almost certainly on a higher degree than merely on a balance of probabilities, the latter being the standard in civil cases. This is not the standard the courts in this country have applied. The Supreme Court of Appeal in Gondwe and another v. Gotani-Nyahara [2005] MLR 121 and Electoral Commission and another v. Mkandawire [2011] MLR 47, and the High Court Patrick Kamkwatira v. Electoral Commission and another [2014] MLR 249 applied the standard of proof on a balance of probabilities. In Mauritius, in Jugnauth v. Ringadoo and Others [2008] UKPC 50, the Judicial Committee of the Privy Council affirming the decision of the Supreme Court of Mauritius, applied the standard of proof on a balance of probabilities. It will be noted that the practice is varied from jurisdiction to jurisdiction. The other is in the Zambian case of Anderson Kambela Mazoka and Two Others v. Levy Patrick Mwanawasa and Two Others SCZ/EP/01/02/03/2002, the Supreme Court held that the Court, in determining the standard of proof, should take into account the facts of the particular case: vt “We accept that the issue of standard of proof may turn out to be more a matter of words than anything else. There can be no absolute standard of proof. The degree must depend on the subject matter. In the case under consideration, the standard of proof must depend on the allegations pleaded.” 35 The same approach was followed in Raila Odinga & 5 Others v Independent Electoral and Boundaries commission & 3 others [2013] eKLR when the Kenayan Supreme Court said: [203] The lesson to be drawn from the several authorities is, in our opinion, that this Court should freely determine its standard of proof, on the basis of the principles of the Constitution, and of its concern to give fulfilment to the safeguarded electoral rights. As the public body responsible for elections, like other public agencies, is subject to the “national values and principles of governance” declared in the Constitution [Article 10], judicial practice must not make it burdensome to enforce the principles of properly-conducted elections which give fulfilment to the right of franchise. But at the same time, a petitioner should be under obligation to discharge the initial burden of proof, before the respondents are invited to bear the evidential burden. The threshold of proof should, in principle, be above the balance of probability, though not as high as beyond-reasonable-doubt — save that this would not affect the normal standards where criminal charges linked to an election, are in question. In the case of data-specific electoral requirements (such as those specified in Article 138(4) of the Constitution, for an outright win in the Presidential election), the party bearing the legal burden of proof must discharge it beyond any reasonable doubt. 36 As of 2005, the Supreme Court of Appeal in Gondwe and another v. Gotani-Nyahara [2005] MLR 121 acknowledged that the law on elections in this country was developing and that there would be emergent rules and principles in future. 12 37 38 39 40 41 42 I am persuaded that the standard of proof the court may require in any particular electoral dispute should depend on the allegations pleaded. A higher standard of proof should be required where the allegations are of a criminal or quasi-criminal nature. At the end of an election petition under section 100, the court has to declare whether the member of the National Assembly or the President was duly elected or not. If duly elected the election remains valid but if not duly elected, the Registrar of the High Court has to give notice of the fact to the Commission which has to publish a notice in the Gazette stating the effect of the order. Pursuant to the notice, a fresh election for the seat of the member of the National Assembly or the President, as the case may be shall be held in accordance with the Act. To get to this point the Supreme court settled in Gondwe and another v. Gotani-Nyahara [2005] MLR 121 at 126 following Gama v. Omar and Malawi Electoral Commission MSCA Civil Appeal No. 24 of 1999 that: - "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 affect the result of the election.” I will be applying these principles in this case. Let me turn to the legal framework underpinning the issues raised by the petition. Applicable legal background and processes It is clear to me that this petition concerns the counting, recording and determination of results of the election at the polling stations concerned. It is proper therefore that I set out the relevant legal provisions in the Parliamentary and Presidential Elections Act as a background to whatever transpired. Section 70 provides for work items for polling station officers, including, among others, record sheets for the record under section 93, and a log book in which formal complaints under section 89 are recorded. 13 43 The witnesses in this case have referred to polling station result sheets and a record log book as the tools to help in determining this matter. It is important to note that the record sheets for the record under section 93 are meant to record (a) a record of the entire polling process at the polling station containing (i) the full particulars of the polling station officers and representatives of political parties; (ii) the total number of voters; (iii) the total number of votes for or under each classification of votes; (iv) the number of unused ballot papers; (v) the number of ballot papers which have been the subject of complaints, if any; (vi) the discrepancies, if any, between votes counted and the number of voters; (vii) the number of complaints and responses thereto and decisions taken thereon by the polling station officers; (viii) any other occurrence which the polling station officers consider to be important to record; and (b) a brief summary of the final result, and are provided separately from the record log book. The log book is for recording formal complaints under s. 89. It turns out that the record log book the Electoral Commission provided in the elections for this year as exhibited by Aticken Nyirongo, the Presiding Officer at Chisu polling station, was meant to record a lot more information than complaints under s. 89 including a record of the entire polling process at the polling station as required by s. 93(1)(a). Still, there were separate record sheets provided, notably, the form for accreditation of party representatives and other monitors, MEC. RVP 004, the Election Result of Count sheet MEC. POLL 060b and the Polling Station Result Sheet, MEC. POLL 066b. I have seen this in the evidence of Ankton Swaya, Presiding officer at Sanje Primary School, Bonster Lungu, Presiding officer at Msani Primary School, Gaster Kamanga, the Constituency Returning Officer for Nkhatabay Central Constituency and Raphael Mwasi, Presiding officer at Msinjiyiwi Primary School. From the evidence of the witnesses, I notice that the Polling Station Result Sheet form MEC. POLL 066b is the brief 14 44 45 46 47 summary of the final result. In a polling station with two or more polling streams, Presiding Officers or Assistant Presiding Officers would complete the Election Result of Count sheet MEC. POLL 060b for each stream, and thereafter tabulate final results for the polling station on the Polling Station Result Sheet form MEC. POLL 066b. I have noted that in some polling stations with one stream the Election Result of Count sheet MEC. POLL 060b was used. Incidentally, this form is the same as page 13 of the record log book that has been exhibited in this case. Section 93(1) further states that the record of the polling process and the summary of final result at the polling station shall be legibly signed by the presiding officer and each of the other polling station officers and, if any be present, at least one representative of each political party. This means that where no party representatives are present, the record of the polling process and the summary of final result are still in order without signatures of party representatives. But they cannot go without the signatures of the Presiding Officer and the other polling station officers. Polling station officers are under section 68, officers appointed by the Electoral Commission to administer the proceedings at a polling station, including more particularly the casting of votes and to count the votes at the polling station. Let me observe at this point that the form MEC. POLL 066b the Electoral Commission provided, does not provide space for the other polling station officers to sign. This should have been provided. My view is that the requirement for the other polling station officers to sign is an internal safeguard against tampering and interfering with the result sheets by any individual, should there be no political party representative to sign. Representatives of political parties at a polling station are under Section 93(2) entitled to a copy of the duly signed summary of the final result of the poll at the polling station. I also notice from the evidence given by the witnesses in this case, that form MEC. POLL 066b was provided with carbon printed copies. Meaning, the copy a representative of a political party would get was a carbon print of the original form. Section 94 provides that: - a5 The presiding officer of a polling station shall, with all dispatch, deliver to the office of the District Commissioner of his district under conditions of absolute security against loss, tampering or interference- (a) the record prepared under section 93; (b) all the ballot papers collected in separate lots corresponding to the classification under which they were counted; (c) all unused ballot papers; and (d) all voters registers and other work items provided to that polling station. 48 Section 95.- (1) On receipt of records from polling stations, the Returning Officer or an officer of the Commission duly authorized in that behalf shall, at the office of the District Commissioner, compile the result of the elections in his district on the basis of the duly signed summaries received with such records and shall prepare on the appropriate sheets in the prescribed form provided for the purpose by the Commission, a record in respect of each constituency in the district and also in respect of the entire district showing- (a) the total number of persons who registered as voters; (b) the total number of persons who voted; (c) the total number of votes for or under each classification of votes in accordance with section 91; (d) the discrepancies, if any, between the votes counted and the number of persons who voted; and (e) the complaints, if any, received by him and his decisions thereon. (2) Representatives of political parties duly designated for the purpose, shall be entitled to observe the entire procedure followed at the office of the District Commissioner in compiling the district result of the elections under subsection (1). (3) The record prepared under subsection (1) shall be legibly signed by the returning officer or other officer supervising the compilation thereof and, if any be present, by at least one representative of a political party which shall in addition, be entitled to receive a copy of the record. 16 49 50 51 (4) The returning officer or an officer of the Commission duly authorized in that behalf shall publicly announce the result of the election in each constituency and in the entire district in accordance with the record prepared under subsection (1). (5) The returning officer or a duly authorized officer of the Commission shall, with all dispatch, deliver to the Chief Elections Officer under conditions of absolute security against loss, tampering or interference. (a) the record prepared under subsection (1); and (b) all items received from all polling stations in the district concerned. Note that constituency election results are determined on the basis of the polling station result sheets, MEC. POLL 066b from the various polling stations in the constituency. Thus, if there has been any tampering or interference with any such form, as is complained in the present petition, the copies of the result sheets obtained by the representatives of political parties at the polling stations in accordance with Section 93(2) would be so handy to pick the tampering or interference. The copy can be compared with the original retained by the Electoral Commission. The results are not determined using the record log book. But there is information in it like the names and signatures of the Polling Station Officers and representatives of political parties as well as records of results, which can also be used to resolve any discrepancies between the copy and the original polling station result sheet MEC. POLL 066b. Any doubts or complaints arising out of any irregularities at the polling station are dealt with according to section 89. The provision states that: - (1) In addition to representatives of political parties, any voter present at a polling station may raise doubts and present in writing complaints relating to the voting at the polling station and shall have the right to obtain information from the polling station officers and from relevant documents available at the polling station. (2) No polling station officer shall refuse to receive a complaint presented to him under subsection (1) and shall initial every such presentation and annex it as part of the official record of the polling station. 17 52 53 (3) Any presentation received by polling station officers under this section shall be deliberated upon among, and be resolved by the polling station officers who may, if necessary in their opinion, postpone such deliberation or resolution until the end of the voting process to enable the process to proceed. In view of this, representatives of political parties are expected to complain in writing any serious irregularities they may observe during the polling process at their station. Such a complaint will never be refused by any polling station officer and will be initialled and annexed as part of the record of the polling station. The record log book will thus be good proof that the complaint was made and the manner it was resolved at the polling station. A copy of the initialled complaint retained by the complainant can also be good proof that the complaint was made, but perhaps not the manner it was resolved, if not recorded on the copy. There are other instances where complaints may be made to the Electoral Commission apart from the polling station. Next is to the Returning officer at the Constituency or District Tally Centre. At the time the Returning Officer compiles results of the Constituency or the District, section 95 (1) compels him or her to prepare on appropriate sheets in the prescribed form provided for the purpose by the Commission, a record in respect of the Constituency and in respect of the entire District showing, (a) the total number of persons who registered as voters; (b) the total number of persons who voted; (c) the total number of votes for or under each classification of votes in accordance with section 91; (d) the discrepancies, if any, between the votes counted and the number of persons sign who voted; and (e) the complaints, if any, received by him and his decisions thereon. Representatives of political parties, if any be present, are also entitled to observe the entire procedure at this stage in accordance with section 95(2) and sign and receive a copy of the record. 18 54 55 56 57 58 The copy of the record received by the political party representative at this point is also good proof for any tampering of the results should it occur as the results are dispatched to the Chief Elections Officer under section 95(5). It is also good proof of any complaint and decision taken at the time of compiling results of the Constituency or the District. It should be noted that results were entered in the Electoral Commission IT system at the Constituency or District Tally Centre and the copy of the result at this point was printed from the system. Complaints are also handled at the beginning of determining the national result of the general election. Section 97 requires the Electoral Commission to take a decision on any outstanding matter which has been a subject of a complaint. At this stage the Commission may examine the votes which have been classified as null and void, and may affirm or correct the determination thereof at the polling stations and at the office of the District Commissioners, without prejudice to the right conferred under section 114. In fact, section 113 provides: - “Save as otherwise provided in this Act, any complaint submitted in writing alleging any irregularity at any stage, if not satisfactorily resolved at a lower level of authority, shall be examined and decided on by the Commission and where the irregularity is confirmed the Commission shall take necessary action to correct the irregularity and the effects thereof.” Virtually, this means that there should not be any complaint arising and known in the process of polling, counting and determination of results which should skip the determination of the Electoral Commission before coming to court. Let us now delve into the substance of the present petition. Determination You will recall that the Petitioner complains of the record of results at Chisu, Msani and Msinjiyiwi. He complains of his monitors having been barred from witnessing the counting of votes and signing result sheets for Chisu, Bwikiti and Sanje polling stations. And his 19 party officials having been beaten and barred from collecting result sheets for Sanje polling station despite permission of the District Returning Officer. Finally he complains that the ballot box for Sanje polling station came to the Constituency Tally Centre without being sealed, but the Returning Officer still allowed the results given by the Presiding Officer verbally. Chisu 59 The evidence before this court is that the IT system printed polling station result sheet for Chisu was as follows: - Station Total A. Number of Ballot Papers Received 800 B. Number of unused Ballot Papers 246 C. Number of Cancelled/Spoilt Ballot Papers 0 D. Number of Null and Void Ballots 13 E. Number of Valid Votes Cast 541 F. Total Number of Cast Ballot Papers (D+E) 554 1. JUSTIN PRINCE BANDA (UTM) 4 2. GABRIEL PHILLIPS CHIRWA (UDF) 2 3. SYMON VUWA KAUNDA (DPP) 393 4, RAPHAEL JOSEPH MHONE (PP) 138 5. HELEN GETRUDE MWALE (TPM) 1 6. JOLLY DERALEY NYIMBA 3 60 Welman Chirwa was the political party representative for United Transformation Movement at Chisu. His evidence is that the 2"? Respondent got 303 votes and not 393. He exhibits a photocopy of a polling station result sheet for Chisu marked “WC1,” not clear in figures on the result for Symon Vuwa Kaunda but “three hundred and three votes” in words. It is the same as “RJM2” exhibited by Raphael Joseph Mhone. It is signed by the Presiding Officer and a representative for UTM. A similar copy has also been exhibited as 20 61 62 63 64 “MB1” by Maggie Manda, a representative of the Peoples Party at the same station. They both state that the polling station result sheet changing Symon Vuwa Kaunda’s results to 393 was not shown or communicated to them and they never signed for it. With this, the impression is that they knew and each had a copy of the result sheet showing that the 2" Respondent got 303 votes but the result was changed to 393 later without their knowledge. To resolve the issue, one would expect each of them to exhibit their copy of form MEC. POLL 066b received under s. 93(2), to compare with what was used by the Electoral Commission in declaring the result. But this is not the case. In opposition to Maggie Manda’s and Welman Chirwa’s evidence, Aticken Nyirongo, the Presiding Officer for Chisu polling station, states that after counting the ballots, he filled in all the necessary forms and dully signed them together with all the monitors and gave them their copies. No results were changed, and only the results as counted in the presence of the monitors and signed, were sent to the tally centre for release. He exhibits a copy of the record log book for the station marked ‘“‘AN1” and a colour photocopy of the polling station result sheet, marked “AN2.” Anderson Felix Sisya, the monitor for DPP at Chisu polling station, also states that Symon Vuwa Kaunda got 393 votes and exhibits a photocopy of polling station result sheet similar to “SK V5” marked “AFS1” “AN2” exhibited by Aticken Nyirongo is the same as “SVK5” and it shows that Symon Vuwa Kaunda got 393 votes at Chisu, perfectly recorded in figures and in words. Apart from the Presiding officer, it shows it was also signed by Welman Chirwa for UTM, Anderson Sisya for DPP, Elemiah Mkolongo for UDF, Lucy Chirwa for NICE and Stanley B. whose affiliation is not recorded. The record log book, “ANI” shows that among other monitors, Maggie Manda and Welman Chirwa signed the “certificate for closing of poll” at page 6, the “record of ballot boxes seals received” at page 7, the “receipt of ballot papers” at pages 9, 10 and 11 and the “election result of count parliamentary elections” at page 13, among other pages. 21 ” 65 66 67 68 Later in her sworn statement in reply of 18" June 2019, Maggie Manda states that she refused to sign for the results at Chisu polling station because she did not agree with the result recorded for Symon Vuwa Kaunda. As a result, she was declined a copy by the Presiding Officer claiming he had given all copies to the 2"’ Respondent’s monitors, until the Constituency Returning Officer issued a notice to all Presiding Officers on 24" May 2019 asking them to provide monitors or candidates with copies of result sheets MEC. POLL 066a, 066b and 066c, they could still be keeping. Then she got what has been exhibited as “RMJ2” or “MB1.” In his sworn statement in reply of 18" June 2019, replying to Aticken Nyirongo’s sworn statement, Welman Chirwa, referring to “RJM2,” states that the result for Vuwa Kaunda was altered to read 393 in figures but in words it remained “three hundred and three.” To this court, it means there is 393 on the unclear part of the exhibit. He denies having signed “ANI,” which is page 13 of the record log book and states that he does not sign with a “W” as showing on the document. He exhibits his National Identity card showing his signature in full name. He then emphatically states that he did not at any point sign for results at the polling station because he, as did other monitors, contested the results for being fraudulent, and he was not given a copy. When you consider Maggie Manda’s and Welman Chirwa’s sworn statements of 18" June 2019, the issue is no longer that the result sheet was tampered with, but that after counting 303 votes for Vuwa Kaunda, instead of recording correctly, the Presiding Officer, for whatever reason, chose to record 393 votes. And so, the monitors refused to sign for the result sheet. If Maggie Manda and Welman Chirwa did not sign any result sheet and got no copy, it means they question both “RJM2” and “SVKS5.” It therefore does not matter which of the two is genuine. From what they are saying, the final result sheet for the polling station had a problem right before being transmitted to the Constituency Tally centre because it carried 393 and not 303 votes as the result for Symon Vuwa Kaunda. In the face of Aticken Nyirongo’s evidence that he properly recorded the result, Maggie Manda and Welman Chirwa would have to give other evidence than any copy of the result sheet to demonstrate that they disputed and refused to sign the result sheet because the 22 69 70 71 72 proper count was 303. This would mean that the dispute was not resolved. There is need for evidence of the dispute. That evidence is missing. The dispute would have been resolved before determination of the national result of the general election. This is where representatives of political parties need to be very vigilant in making use of section 89. Right at the polling station, Maggie Manda and Welman Chirwa would have presented their complaint in writing. A complaint presented in writing will never be refused by the Presiding Officer or any Polling Station Officer. Having been initialled and annexed to the record as part of the official record of the polling station, Maggie Manda and Welman Chirwa would have presented their copy of the complaint and that would have been the evidence as regards the dispute, and the manner it was resolved. The record log book would also have born witness. The record log book exhibited in this case shows nothing to that effect. Welman Chirwa states in cross examination that the Presiding Officer did not allow them to record the complaint. I would say, this being a matter of their right, they needed no permission to write the complaint. It would have been a big issue to be refused a written complaint. Honestly, no reasonable monitor could allow to be short changed of as many votes as 90. In his cross examination the Petitioner said that the Electoral Commission had to provide complaint forms to the monitors for them to present their complaints, but the same were not provided. Even so, if the matter was serious, the monitors would not have waited to be provided with a complaint form. The Petitioner was himself able to make a written complaint on 22"! May 2019 without any form provided by the Electoral Commission and it was properly received and initialled and he has exhibited it to his sworn statement in reply to Gaster Kamanga’s sworn statement as “RJM 6.” It is pertinent that I reproduce it as follows: - 23 “RE: COMPLAINT AGAINST THE PARLIAMENTARY DETERMINATION OF RESULTS FOR NKHATA-BAY CENTRAL FOR PARLIAMENTARY ELECTIONS DURING POLLING DAY ON 215! MAY 2019 UNDER PARTS VII AND [IX OF THE PARLIAMENTARY AND PRESIDENTIAL ELECTIONS ACT I write to register the above complaint against the polling process in Nkhata-bay Central Constituency in that contrary to section 93(1) the Poll Results Sheets for every stream and the Station Result Sheets were not provided to our monitors by the presiding officers. Our data analysis of the result from our monitors show a win by 11 votes or a deadlock, however the CRO refused to give us access to the data which is on Nkhata-bay Central Constituency file claiming the file is missing in the computer or give us access to forms 6(a) and (b) in order to compare the input and output to the MEC. Further the data made by the data entry clerk of the results for each polling station to be the basis for signing off results at the Tally Centre has some differences with original forms 6(a) and (b) has some recording mistakes taking away some votes from some candidates and even null and void votes. Further the CRO’s analysis of the results seen by every stakeholder on the basis of which the MEC report will be made has figures contrary those on forms 6(a) and (b). Furthermore some forms 6(a) and (b) were altered at the Tally Centre by Presiding Officers in the absence of Monitors e.g, those for Kalambwe Polling Centre took 4 hours to be altered. Further still the null and void votes for Mtetete and Kalambwe polling centres have questionable recordings and classification as null and void also followed questionable Presiding Officer decision making process. 24 73 74 WE Also one ballot box from Sanji polling centre which happens to be Simon Vuwa Kaunda’s village came to the tally centre without being sealed and a different monitor signed for the poll result sheet. It is my complaint that the data that will be transmitted to the Commission has been compromised by both the Presiding Officers and within the Commission’s IT staff and as such should be ignored unless the original forms are reconciled with primary data forms. In order to facilitate this process, I request the Commission to withhold results for Nkhata-bay Central Constituency pending an investigation under for your determination and that we should have a recount of the ballot papers for all centres in our Constituency. This complaint mentions nothing about Chisu. In re-examination the Petitioner stated that this was just an omission in presentation of the exhibit. The complaint was presented to the District Commissioner with a list of all centres including Chisu. It will be noted from the complaint that the Petitioner intervened from the Constituency Tally Centre, and what was omitted is just a list of polling stations including Chisu without details of the complaint arising from Chisu. Surely, if the issue at Chisu was that Vuwa Kaunda’s votes had been wrongly recorded as 393 when it should have been 303, the same would have been properly detailed in the complaint, just like he does with questionable recordings at Mtetete and Kalambwe. In case | have missed the point and the real issue is that “RJM2” is a genuine copy of the final result sheet for Chisu while “SVK5” is forged, I then have to analyse and compare them. The recording appears as below but in handwriting. 25 “RJIM2” Station Total Station Total in words G. Number of Ballot Papers | 800 Eight hundred Received Ballot Papers H. Number of unused Ballot Papers | 251 Two hundred fifty one ballots I. Number of Cancelled/Spoilt| 0 Zero Ballot Papers Ballot Papers J. Number of Null and Void] 13 Thirteen Ballot Ballots Papers K. Number of Valid Votes Cast 541 Five Hundred Forty one Votes L. Total Number of Cast Ballot | 554 Five Hundred fifty Papers (D+E) Four 7. JUSTIN PRINCE BANDA| 4 Four Votes (UTM) 8. GABRIEL PHILLIPS | 2 Two Votes CHIRWA (UDF) 9. SYMON VUWA_ KAUNDA | 393 Three Hundred and (DPP) Three 10. RAPHAEL JOSEPH MHONE | 138 One Hundred and (PP) Thirty Eight 11. HELEN GETRUDE MWALE 1 One Votes (TPM) 12. JOLLY DERALEY NYIMBA 3 Three Votes 26 “SVKS” Station Total Station Total in words M. Number of Ballot Papers | 800 EIGHT HUNDRED Received N. Number of unused Ballot Papers | 251 TWO HUNDRED AND FIFTY ONE O. Number of Cancelled/Spoilt Ballot Papers P. Number of Null and Void| 13 THIRTEEN Ballots Q. Number of Valid Votes Cast 541 FIVE HUNDRED FORTY ONE R. Total Number of Cast Ballot | 554 FIVE HUNDRED Papers (D+E) FIFTY FOUR 13. JUSTIN PRINCE BANDA| 4 FOUR VOTES (UTM) 14, GABRIEL PHILLIPS | 2 TWO VOTES CHIRWA (UDF) 15. SYMON VUWA_ KAUNDA | 393 THREE (DPP) HUNDRED AND NINETY THREE VOTES 16. RAPHAEL JOSEPH MHONE | 138 ONE HUNDRED (PP) AND _ THIRTY EIGHT VOTES 17. HELEN GETRUDE MWALE 1 ONE VOTE (TPM) 18. JOLLY DERALEY NYIMBA 3 THREE VOTES 27 76 ad 78 79 I notice that Aticken Nyirongo does not dispute or comment anything about “RJM2,” “MBI,” or “WC1” in his evidence. The Respondents cross examined Raphael Joseph Mhone, Maggie Manda and Welman Chirwa, but nothing came up to dispute that “RJM2” was given by Aticken Nyirongo. RJM2 and SVKS are copies of the polling station result sheet for the same station, Chisu. Although some content is similar, like the entries in figures, the two are markedly different. The result in words for Symon Vuwa Kaunda is different. “RJM2” is recorded in small letters while “SVK5” is in block letters. “RJM2” is signed by the Presiding Officer and one monitor for UTM while “SVK5” is also signed by the other monitors. It means these are not carbon printed copies of the same original. But they both came from Aticken Nyirongo and he has not explained what happened for there to be two different copies. The original final result sheet for Chisu polling station which was used in determining results of the Constituency has not been brought to the attention of the court. Perhaps that is not a problem, because in the circumstances, it means it was the original for “SVKS.” As already said, everything else on the figures is the same. The number of unused ballot papers is wrong on both copies. If 554 was the total number of valid votes cast, the number of unused ballot papers should have been 246 as showing in the IT system printed result sheet. As for “RJM2,” the total number of valid votes cast would not have been 541 if Symon Vuwa Kaunda got 303 votes. They would have been 451. And the number of unused ballot papers would have been 349. It is only in words that Symon Vuwa Kaunda’s votes are recorded as “three hundred and three,” but it is 393 in figures. Although dated 21 May 2019, the Petitioner got “RJM2” on 24" May 2019 from Aticken Nyirongo. The document is only signed by the Presiding Officer and a representative for UTM. For me, there is more to explain on “RJM2” to make one believe that the result for Symon Vuwa Kaunda was actually 303. On the other hand, “SK V5” has no such errors apart from the common error on the number of unused ballot papers. As earlier noted, “SK V5” shows to have been signed by Welman 28 82 Chirwa for UTM, Anderson Sisya for DPP, Elemiah Mkolongo for UDF, Lucy Chirwa for NICE and Stanley B, in addition to the Presiding Officer. Maggie Manda admits in her cross examination that Stanley B. is Stanley Bauki who was the other monitor for Peoples Party at Chisu. She however states that she is the one who signed for the records in the record log book except at page 13, and it is proper that she should have been the one to sign for the final result of the polling station. Her evidence is that she refused to sign the final result sheet for the polling station. Stanley Bauki was however not called to dispute the signature, or if he signed, whether it was under suspicious circumstances. As earlier said, page 13 of the record log book is the Election Result of Count sheet MEC. POLL 060b. The results recorded there are the same as were announced by the Electoral Commission. Although Maggie Manda did not sign on this page, her name is written the same way as on the other pages she has admitted. I am inclined to believe she wrote down her name on this page. Welman Chirwa disputes the signature that looks like a “W.” He does this in his sworn statement of 18" June 2019 before Aticken Nyirongo amended his sworn statement and it is in respect of the signature on an exhibit of page 13 of the record log book for the polling station. The amendment did not change this exhibit and so his dispute is in respect of the same exhibit. He states that he either signs in his full name or “W. Chirwa.” He admits in cross examination however, to have signed in the record log book on pages 6, 7 and 8. His signature is actually a ‘““W” on these pages. And so is the signature on page 13. He would have to give more evidence than a mere assertion for anyone to believe he did not sign on page 13. He denies having singed for “SVK5” but the signature on it is also a “W” although looking slightly different from the record log book. His signature in the record log book appears like a small “w” while on “SVK5” it appears like a capital “W.” All the same, this would take us back to where he has to show he refused to sign, by way of a written complain under s. 89. 29 83 84 85 86 Yes “RJM2” and “SVK5” are not copies of the same original but their content is essentially the same. Come to think of what would have happened at the Tally Centre if the original of “RJM2” was the result sheet. There is high probability in my view that the figures that would have mattered considering that they balance. Very likely Symon Vuwa Kaunda would still have 393 votes. My conclusion in respect of the results at Chisu is that no sufficient evidence has been given to show that Symon Vuwa Kaunda got 303 votes and not 393 votes. Msinjiyiwi The evidence before this court is that the IT system printed polling station result sheet for Msinjiyiwi was as follows: - Station Total S. Number of Ballot Papers Received 300 T. Number of Unused Ballot Papers 130 U. Number of Cancelled/Spoilt Ballot Papers 0 V. Number of Null and Void Ballots 2 W. Number of Valid Votes Cast 168 X. Total Number of Cast Ballot Papers (D+E) 170 19. JUSTIN PRINCE BANDA (UTM) 1 20. GABRIEL PHILLIPS CHIRWA (UDF) 1 21. SYMON VUWA KAUNDA (DPP) 130 22. RAPHAEL JOSEPH MHONE (PP) 34 23. HELEN GETRUDE MWALE (TPM) 0 24, JOLLY DERALEY NYIMBA 2 Elucy Sanga was the Peoples Party representative at this station. Her evidence is rather that Symon Vuwa Kaunda got 30 votes. She exhibits her copy of the polling station result sheet at the station, marked “ES1,” but showing that Symon Vuwa Kaunda got 130 votes. “ES1” 30 87 88 89 is the same as “RJM4” exhibited in the Petitioner’s sworn statement of 31% May 2019. I have seen the original copy of form MEC. POLL 066b on file, and indeed, a 0 was changed to 1 on Symon Vuwa Kaunda’s result so as to read 130 in figures but the entry in words is perfectly “one hundred and thirty ballot papers” without any sign of alteration. Elucy Sanga’s further evidence is that she was trained that figures on form MEC. POLL 066b were not to be tampered with. And so, she is unclear as to the actual result for Symon Vuwa Kaunda at the polling station in view of the alterations. In cross examination however, she emphatically states that Symon Vuwa Kaunda got 30 votes and the total valid votes cast were 68 but the total number of ballot papers cast were 170, two of which were null and void. She signed for “ES1” and her explanation is that the Presiding Officer made the representatives of political parties sign the result sheet before results were entered. She saw the Presiding officer recording 30 for the results of Symon Vuwa Kaunda in figures and “thirty” in words, and 68 and 70 in figures and in words for the total number of valid votes cast and total number of ballot papers cast, respectively. “ES1” is recorded one “hundred and thirty ballot papers” for Symon Vuwa Kaunda’s result, “one hundred and sixty-eight ballot papers” for total number of valid votes cast and “one hundred and seventy ballot papers” for number of cast ballot papers, all in words without any alteration, perfectly fitting in the spaces provided. Elucy Sanga explains that the Presiding Officer was leaving space at the beginning of the provided spaces at the time he was recording, which she thinks he filled up later afterwards. The evidence of Raphael Mwasi, the Presiding Officer at Msinjiyiwi polling station is that they counted 130 ballot papers in favour of Symon Vuwa Kaunda and no one complained throughout the counting process. The results were recorded perfectly in figures and in words on forms MEC. POLL 060b and MEC. POLL 066b which the monitors signed afterwards. He exhibits a copy of form MEC. POLL 060b for the station showing that indeed Symon Vuwa Kaunda got 130 votes and signed by the representatives for DPP, MCP and Elucy Sanga for PP. Checkson Phiri, the monitor for DPP at Msinjiyiwi also gives similar evidence. 31 90 91 92 93 94 It is clear to me that Elucy Sanga is really not sure of her own evidence. It is self- contradiction for her to be unclear of the result Symon Vuwa Kaunda got at the polling station and be sure about it the same time. If Symon Vuwa Kaunda got 30 votes, the total number of ballot panes cast would not have been 170 but 70, and the unused ballot paper would have not been, but 230. It would have meant making a lot of alterations to the form to be what it is now from what Elusy Sanga says it was. There is no sign of such alterations on exhibit “ES1.” In my judgment, it is more probable that Symon Vuwa Kaunda got 130 votes at Msinjiyiwi than 30. Msani It is the Petitioners votes that are in issue at Msani polling station. Geoffrey Chimaliro was the monitor for MCP. His evidence is that Raphael Joseph Mhone got 225 votes and not 223 votes as showing on form MEC. POLL 066b for the polling station exhibited as “GC1.” He states that the result sheet was changed on Raphael Joseph Mhone’s results to 223 without the knowledge of the monitors. He and Lennie Nyirenda of PP however, signed for the result sheet. In a later sworn statement he states that the monitor for DPP contested one vote of the 225 that were counted for Raphael Joseph Mhone but no conclusion was reached about it. His view is that if anything Mr Mhone’s result should have been 224. He exhibits a copy of his notes on the day showing 224 for PP. Bonster Lungu, the Presiding Officer at Msani states that 223 is the result Raphael Joseph Mhone got at the station. The monitors were given copies of the result sheet forms MEC. POLL 066b and MEC. POLL 060b and no one complained. He exhibits form MEC. POLL 060b showing the same result and signed by the various political party representatives including Lennie Nyirenda and Geoffrey Chimaliro. Ekwenia Vwatapu Chirwa, the monitor for DPP also exhibits his copy of form MEC. POLL 060b for Msani School showing the same result. 32 95 96 97 It is clear to me on this evidence that the result sheet MEC. POLL 066b was not changed at all. It had 223 as the result for Raphael Joseph Mhone at the time Geffrey Chimaliro and Lennie Chirwa signed for it. That this was the final result for the polling station means that any dispute as to the count was resolved that way. If there was any serious doubt or complaint with regard to the result, Lennie Nyirenda or indeed Geoffrey Chimaliro should have presented it in writing in accordance with s. 89. In that case we would have an initialled copy for evidence in this court. In the circumstances, it is more probable that Mr Raphael Joseph Mhone indeed got 223 votes at Msani polling station. The court has this far dealt with the main issues raised by the petition. Let me turn to other complaints raised. Barring monitors from the vote counting process and signing result sheets at Chisu, Bwikiti and Sanje The Petitioner could not have been present at the polling stations to witness the counting process. The monitors are the best witnesses to testify as to their being barred from monitoring the vote counting or not being allowed to sign result sheets, as anything said by the Petitioner on this is hearsay. None of the sworn statements of the other witnesses filed on 31*' May 2019, in support of the petition mentions anything about this. In their sworn statements in opposition, Aticken Nyirongo, Presiding Officer at Chisu and Ankton Swaya, Presiding Officer at Sanje state that monitors including the ones for Peoples Party were present even during the counting process and they signed and were given copies of the result sheets. Ankton Swaya exhibits form MEC. POLL 060 for Sanje showing that Ephronie C. Siska signed as monitor for PP. In his sworn statement in reply to this, the Petitioner disowns Ephronie C. Siska but does not state who was the rightful monitor. The way things went at Chisu has already been stated earlier in this judgment. Other than this, there is no monitor who has given evidence on this issue to support the Petitioner. I find no sufficient proof that any of the Petitioner’s monitors were barred from monitoring the counting of votes at Chisu, Bwikiti and Sanje. 33 98 99 100 Beating and barring Peoples Party officials from collecting result sheets for Sanje The Petitioner asserts this issue along with barring monitors from the counting of votes, in his sworn statement. And he asserts that monitors from the polling stations have sworn statements on what happened. But as earlier observed none of the sworn statements of the other witnesses filed on 31** May 2019, in support of the petition mentions anything about this. It is in his sworn statement in reply to Ankton Swaya’s sworn statement that he states that Ankton Swaya did not give out copies of result sheets. He states that they went to Sanje on 25" May 2019 to collect result sheets from him and the other Presiding Officer, who was the 2™ Respondent’s sister, but the two were hidden by villagers who attacked them and injured one of their members badly. The case was reported to police. His concern for all this is to know whether he got the votes that are said he got at the polling station. Attached to form MEC. POLL 60b exhibited in Ankton Swaya’s sworn statement, is form MEC. POLL 66b showing that the Petitioner got 18 votes and the 2"! Respondent got 218 votes. He has disowned Ephronie C. Siska but has not stated who was his rightful monitor and has not brought that monitor to testify. The Respondents have not responded in any sworn statement regarding the violence against the Petitioner and his supporters at Sanje on 25" May 2019. It is more probable that this happened and it is in the hands of the police. The police should quickly finalise it. Having occurred after the polls, I do not think it would have any effect on the final polling station result at Sanje. Unsealed ballot boxes for Sanje polling station. The Petitioner’s evidence is that he argued with the Constituency Returning Officer at the Tally Centre for three hours on whether to allow results for the polling station to be given verbally by the Presiding Officer. Gaster Kamanga, the Returning Officer for the Constituency states that ballot boxes were supposed to be sealed with padlocks and plastic seals. Result sheets were sealed in their own plastic bags. He received ballot boxes for Sanje on 22" May 2019 only with padlock seals but they were sealed anyway. Since the 34 101 102 103 104 ballot boxes were not being opened at the Tally Centre, he accepted them because it did not affect the results on the result sheets. In his sworn statement in reply the Petitioner states that the ballot boxes were neither sealed nor locked with padlocks. In accordance with s. 94, the record of the entire polling station and the brief summary of the final result as done under s. 93, plus all the ballot papers collected in separate lots corresponding to the classification under which they were counted, all unused ballot papers and all voters registers and other work items provided to a polling station, are dispatched and delivered under conditions of absolute security against loss, tampering or interference. According to s. 90, unused ballot papers are placed in a separate sealed envelope, initialled or stamped over the sealed area in accordance with s. 90. Similarly, the ballot papers for each candidate as well as cancelled/ spoilt and null and void ballot papers. The Petitioner therefore has to show more than a mere assertion that the ballot boxes were indeed delivered without being sealed. If the boxes were not sealed, he would have to demonstrate if the envelopes looked tampered. That has not been done. As earlier noted, the Petitioner disowns Ephronie C. Siska as his monitor. He probably could not have a copy of the result sheet at the station for this reason. But form MEC. POLL 066b exhibited by Ankton Swaya is an indication that the Presiding Officer did not give results verbally to the Constituency Returning Officer. In the circumstances he has nothing to use to dispute the final result at the polling station as received by the Constituency Returning Officer. I find no sufficient proof that the ballot boxes for Sanje polling station were delivered to the Constituency Tally Centre without being sealed and that the results for the polling station were given to the Returning Officer verbally. 35 105 106 Conclusion Having considered all the evidence presented by the parties to this court, I find no sufficient evidence upon which to declare that Mr Symon Vuwa Kaunda was not duly elected. The petition is dismissed with costs. Delivered in open court this 16" day of September 2019. 36