Mukwasa v Sinkala and Anor (HP/EP 36 of 2002) [2002] ZMHC 12 (1 August 2002)

2002/HP/EP/O°36 tn the HIGH COURT FOR ZAMBIA at the principal registry HOLDEN AT LUSAKA (Civil Jurisdiction) IN THE MATTER OF ; AND IN THE MATTER OF : the electoral act cap. 13 SECTIONS 18(C), 19 AND 20 OF THE LAWS OF ZAMBIA PARLIAMENTARY ELECTION FOR ISOKA WEST CONSTIENCY HELD ON THE 27th DECEMBER, 2001 ELECTION PETITION BY DAUDI M. MUKWASA BETWEEN: DAUDI M. MUKWASA Petitiner And j 1st Respondent ELECTORAL COMMISSION OF ZAMBIA 2nd Respondent HARRY SINKALA Before the Hon. Mr. Justice T. K. Ndhlovu, on this 1st day of August, 2002. For the Petitioner: For the 1st Respondent: Mr. W. Ngwira of Libertas Chambers For the 2nd Respondent: Mr. S. Chirambo, Chief State Advocate of Dr. J. M. Mulwila of Ituna Partners Attorney-General’s Chambers _______________ JUDGMENT ___________________________ The Petitioner hereof states that Parliamentary Election was held on 27th December 2001 for Isoka West Constituency. The Petitioner stood under ticket against Harry Sinkala (MMD) and others i.e. Friday Lunda Charles I. Siame (UPND); Pearson K. Sichamba (ZAP); Blackson S. c. Sikaona (HP); Niza sikombe i Silungwe (PF); Web Simbeye (ZUDP). The petitioner alleges that Harry Sinkala was not duly elected because the election was not held m an astmosphere which was free and fair as the Returning Officer misdirected the. petitioner’s voters and voting did not take f ' place in Seven (7) polling districts. It was alleged that on 10th December, 2001 the Returning Officer for Isoka West, Mr. N. M. Sinyangwe told him and his election agent Juston Sinkolongo to stop campaigning in Mpungu Ward which was said to fall under Isoka East Constituency. Instead the 'Returning Officer told' t^loTampaigfi"^^ Wards where voting did not take place as the Wards belonged to Nakonde Constituency. The Petitioner stated that only two boxes from Kanyala and I Mzoche Polling Districts in Mpungu were brought to Isoka West for counting and yet Mpungu Ward was designated for Isoka West for its polling district with 1845 eligible voters. Notwithstanding the Returning Officer declared results in Isoka West constituency less 7 polling districts in Mpande, Msele and Mukalika Wards where voting did not -take place- because the same belonged to Nakonde Constituency. The petitioner was supported by Affidavit and Viva Voce evidence at trial. The'petitioner prays that the election of one Harry Sinkala be declared null and void and further prays for scrutiny of ballot papers to be carried out. The latter prayer was not argued before the Court and because of the nature of evidence before the Court, that application was not considered. The Respondent’s answer was filed on 28th May 2002 stating that Harry Sinkala, 1st respondent was declared winner with 232 votes and Sb, to paragraph 2 of the said j^tricts in Isoka. West incluclinc distrl districts. ° iVLzoche, Kanyala and Nachisungu polling v i Refer to paras 2 and 3 of Respondent’s answer stating further that 7 polling districts referred to by the petitioner did not fall under Isoka West Constituency i.e. Msele, Nankungulu, Chitambi, Mbokoshi, Chikamawe, C Shemu and Kazembe polling districts, d that these districts belonged to Nakonde Constituency and that the Electoral Commission’s narrative maps duly gazetted would confirm the same. It was further stated that no -elections were..held, due .to.^thefact„that. the struck. which was designated to distribute election material to the said polling districts developed a j O mechanical defect on its way. In support of this answer Nir. Sinyangwe as returning officer led evidence for Isoka West Constituency. He was shown document number 1 and in particular constituncies 85 and 86 whereby Mr. Sinyangwe, without hesitation, said that the map was not accurate since the numbering of \ constituencies were inter-changeable referring to constituencies number 85 and 86. In his own words, he said in cross examination: • : ✓ / “If one used a map one would go to the wrong direction. I used an old gazette notice with regard to polling districts referred to and not the map”. He further stated when cross examined that only Mr. Mukwasa came to seek advice and it was only he that was disadvantaged. He unequivocally fitted that one would be misled if document 3 were used and colluded ** all three documents that is document 1, 3 and 5 were misleading with regard to positions of polling districts. That in summary is the evidence of duly accredited Returning Officer. The petitioner herof who sought advice from Retiming Officer was disadvantaged. That is the position. C I am grateful to both Learned Counsel for their submissions in support of their respective positions. I am particularly grateful to Mr. Chirambo who drew my attention to Provisions of Section 18(4) Electoral Act which provides: “No election shall be declared void by reason of any act or omission 0 by an election officer in breach of his duty in connection with an election if it appears to the High Cotirt that the election was so conducted as to be substantially in accordance with the Provisions of this Act and that such an act or omission did not affect the result of that election”. \ S Applying that to the instant situation where Mr. Mukwasa, the petitioner Genuinely sought advice from the Returning Officer and suffered . ✓ disadvantage in the process, could it be said that the petitioner would be caught in the provision of Section 18(4) referred to? Certainly not. If it had been that following the brief to all the candidates the petitioner was the only one who was disadvantaged, that would be different. In this particular situation only the petitioner sought guidance from the Returning Officer only to suffer disadvantage at the end of it all. elythat would not be fair t0 the petitioner even if it turned out to be one t of 100 petitioning the results of the election. In the same vein, I should like to tako tuio “ , , 3kc *hls “PPMumty to make mention of , 4, Chief State Advocate’s frantic effort to anniv t. pply to amend document number 1 with regard to positions of Constituency 85 and RA r. • v r— J 0 In my view, that was a , genuine application but failed becaucp ° Decause the document sought to be amended was a gazetted document and for that reason the application.though honest but mistaken was refused; There was a point in Chief State Advocate’s argument that the constituencies referred to 85 and 86 appeared to be - misplaced ^d 'Gould v/elIfoeunter^ should be Q 3 taken by Surveyor-General to address the possibility of amending the map in question. That is document number 1. Having said that, I am satisfied on the balance of probabilities that the election in the light of evidence adduced would not be said to be free and fair and therefore, I allow the petition with costs. T. K. Ndhlovu HIGH COURT JUDGE