Mwenifumbo v Electoral Commission (Election Petition 28 of 2019) [2019] MWHCCiv 9 (7 July 2019)

IN THE HIGH COURT OF MALAWI MZUZU REGISTRY ELECTION PETITION NO. 28 OF 2019 IN THE MATTER OF THE PARLIAMENTARY AND PRESIDENTIAL ELECTIONS ACT AND IN THE MATTER OF THE PARLIAMENTARY ELECTION FOR KARONGA CENTRAL CONSTITUENCY BETWEEN FRANK: TUMPALE. MWENIFUMB O yecaceswens causesnnnvaaaeaswsnervannesiesemseunasesenn PETITIONER AND THE ELECTORAL COMMISSION ....... 0. cc cece cece ceeeeeeeeeeneneneneeenenees 1S" RESPONDENT CORNELIUS THOMSON MWALWANDA .............0.0cccceeceeeeeeeeeeuees 2NP RESPONDENT CORAM: HON. JUSTICE T. R. LIGOWE M. Mkandawire, of Counsel for the Petitioner W. Chibwe, of Counsel for the 1*t Respondent D. Debwe, of Counsel for the 2"! Respondent F. Mwakhwawa Luwe, Court Clerk J. Chirwa, Court Reporter JUDGMENT Ligowe J 1 The Petitioner, the 2"! Respondent and a few others competed for the position of member of the National Assembly for Karonga Central Constituency during the 21*' May 2019 tripartite elections. The Petitioner belongs to a political party called Alliance for Democracy (AFORD), while the 2"! Respondent belongs to Malawi Congress Party (MCP). The 1*' Respondent declared the 2" Respondent the winner of the election. The Petitioner brought the present petition under section 100 of the Parliamentary and 1 Presidential Elections Act, alleging undue return of the 2" Respondent as the winner of the election by reason of three irregularities. The first irregularity regards the absence of monitors for the Petitioner the first few hours of polling on 21 May 2019. It is alleged that the monitors were chased and refused to monitor the polls at Mlare, Mphanya, Lemero, Katili, Tumbi and Kabuyu until 9:00 am. To the Petitioner, this raises suspicion as to what transpired in their absence, especially when guiding the elderly, people with lost sight and others who are unlettered. The second irregularity regards the label of one stream at Mlale polling station. The Petitioner alleges that it was labelled “STREAM ONE —-MWALWANDA’” while the other streams were labelled with letters only, and that voters were thus corruptly influenced to vote for the 2"4 Respondent. The third irregularity regards the counting process, and it has three prongs. The first is that not all ballots were displayed when counting the votes. Only null and void votes were displayed. The second is that in some occasions votes of the Petitioner were added together with the lot for the 2"? Respondent, but the 1st Respondent’s officers were too harsh and arrogant to listen to the monitors’ complaints and the ballots were wrapped quickly and figures entered without verification. The third is that some votes for the 2"! Respondent were found in the Councillor’s ballot box and were counted as valid but votes for the Petitioner found in the Presidential ballot box were declared void despite protest from all monitors. The petition was filed on 31*' May 2019 together with sworn statements in support sworn by Frank Tumpale Mwenifumbo, Patson Kayira, a monitor for AFORD, William Nyirenda for DPP and Benadetta Mwalweni for UTM. The petition was set for hearing on 14" June 2019. Before the hearing, the Respondents filed sworn statements in opposition on 13th June 2019, sworn jointly by Shaba Simwayi, Winnie Sichali, Beauly Munthali and Agnes 10 11 Kayira, who were monitors for MCP at Mlare; sworn jointly by Enock Nkhambule and Sherlicks Bwinga, Assistant Presiding Officers as Mlare; and sworn by Dr Cornelius Thomson Mwalwanda. The hearing did not take place on 14" June 2019 and the matter was adjourned to 19" June 2019 to allow the Petitioner file sworn statements in reply. He filed his own sworn statement and sworn statements sworn by Patson Kayira, William Nyirenda and Benadetta Mwalweni, the same day. On 17" June 2019 the Respondents filed additional sworn statements in opposition sworn by Richard Tomoka, the Presiding Officer at Mlale and Janet Chawinga, the Constituency Returning Officer for Karonga Central. On 19" June 2019, I adjourned the hearing to 3" July 2019 to allow the Petitioner reply to the Respondents’ sworn statements in opposition filed on 17 June 2019. On 1% July 2019 the Petitioner filed the sworn statements in reply sworn by Edwin Nyirenda, the AFORD monitor at Katili, Dickson Sichali, and Austin Kapacha Mwalilino, a CCJP observer at Kabuyu. The hearing started on 17" July 2019 instead of 3" July as earlier indicated. Issues were raised regarding the sworn statements of Frank Tumpale Mwenifumbo, Benedetta Mwalweni, Patson Kayira, and William Nyirenda that they were attested by a lawyer who was not licenced and the signatures on each of their respective statements were different and therefore appeared forged. To solve this the court directed that the sworn statements be redone and attested by a licenced legal practitioner. The hearing continued on 18" July 2019 with oral evidence of Steven Ndau, the District Elections Officer for Karonga and Emmanuel Burukutu, the District Commissioner and District Elections Coordinator for Karonga. I have to raise two technical issues regarding the sworn statements at this point. The first is the need to confine each paragraph of a sworn statement to a distinct portion of a subject. 12 13 14 This is provided for in Order 18 rule 7 of the Courts (High Court) (Civil Procedure Rules) 2017. This rule ensures that a sworn statement is easy to read and understand. I have noted a big problem with this rule from the Petitioner’s sworn statements. Coupled with grammatical and spelling errors it makes the sworn statements unintelligible. The other point I would like to emphasize is need for lawyers to draft sworn statements that are clear and straightforward and use the language of the deponent as far as possible. The sworn statements filed by the Respondents are almost the same in everything as they were deposed by the same person. The courts yes have to determine matters without undue regard to technicality, but the rules of procedure are a catalyst to a fair judicial process and should always be obeyed. In the case of the Courts (High Court) (Civil Procedure Rules) 2017, for example, Order 1 rule 5 specifically states that the objective of the rules is to deal with proceedings justly by ensuring that the parties are at equal footing; saving expenses; dealing with a proceeding in ways proportionate to the amount of money involved, importance of the proceeding, and complexity of the issues; ensuring that a proceeding is dealt with expeditiously and fairly; and allocating to a proceeding an appropriate share of courts resources, while taking into account the need to allocate resources to other proceedings. It is important this far, to bring to the fore the relevant provisions of section 100 of the Parliamentary and Presidential Elections Act, for the law upon which the evidence before this court must be subjected. Subsection (1) is the one that allows 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 to be presented by way of petition directly to the High Court. The petition may be brought in the name of a person claiming to have had a right to be elected at that election; or alleging himself to have been candidate at such election. It is clear in subsection (3) that upon hearing the petition the High Court may make an order declaring that the member of the National Assembly or the President, was duly elected or was not duly elected. If duly elected the election remains valid as if no petition had been presented against his election, but if unduly elected, the Registrar of the High Court has to give notice of that fact to the 4 15 16 18 Electoral Commission which has to publish it in the Gazefte stating the effect of the order of the High Court. To arrive at such an order, the court will have considered if the irregularity has been made out, and the extent to which it affected the result of the election. The Supreme Court of Appeal held 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 with regard to disputed elections in this country is that an election will be invalidated if the irregularity, mistake or error complained of, affected the result of the election. The party alleging the undue return of the election or the undue election of the member of the National Assembly or the President has the legal burden to prove it on a balance of probabilities. This is the standard that was applied by the Supreme Court of Appeal in Electoral Commission and another v. Mkandawire [2011] MLR 47 and was followed by the High Court in Patrick Kamkwatira v. Electoral Commission and another [2014] MLR 249. Thus the Petitioner in the present case has to show to this court that it is more probable that the irregularities he alleges occurred and affected the result of the election. I now have to test each allegation of irregularity raised in the present petition against these considerations. I will start with the issue of monitors. Under section 72 of the Parliamentary and Presidential Elections Act, every political party has the right to monitor the voting process at polling stations. This is done through designated representatives who are notified to the Commission in writing, specifying their names and the polling stations to which they are to be assigned. Without the notification, it is presumed the political party does not desire to monitor the voting process at the polling station. After the notification, the Commission issues the representative a document of identity in a prescribed form. This is the accreditation process for representatives of political parties to monitor elections. 20 21 22 There is no consensus among the witnesses for the Petitioner about how it came about, but it is clear from their evidence that as of 218' May 2019, AFORD monitors in the Constituency had not been formerly accredited. Steven Ndau testifies that the closing date for notification was 15"" April 2019 but he still received the notification for AFORD monitors on 23™ April 2019 and could not include them on the accredited list. This led to them not being allowed to monitor the elections at various polling stations in the constituency at the beginning of the voting process. The Petitioner complained to the Electoral Commission about it and it was resolved eventually. The issue is how long it took to be resolved and how the absence of AFORD monitors in this period effected the result of the election. There is no agreement among the witnesses for the Petitioner on the period. Patson Kayira, William Nyirenda and Benadetta Mwalweni state that the AFORD monitors were only allowed to monitor the elections after 9:00 am, while Steven Ndau and Emmanuel Burukutu state that they were allowed around 8:00 am. Steven Ndau states that at the time he arrived at Mlale, around 8:00 am, to follow up on the matter, he found it resolved. Emmanuel Burukutu also visited Mlale around 8:00 am and found the issue resolved. He arrived after Janet Chawinga, the Returning Officer for the Constituency, had been to the polling station. Janet Chawinga’s own evidence is that the monitors were allowed to participate within an hour from opening of the polls. From this evidence, it is more probable that the monitors were allowed to monitor the voting process at Mlale around 8: 00 am. I so find. Edwin Nyirenda has given evidence regarding Katili that he was only allowed to participate in monitoring the voting process around 10:00 am. His evidence has not been disputed by any of the Respondent’s witnesses and I find that there was no AFORD Monitor at Katili until 10:00 am. Austin Kapacha Mwalilino has given evidence that the AFORD representative at Kabuyu gave up waiting for their names to be sent to the Presiding Officer by the Constituency Returning Officer and left at 4: 00 pm. This is probably because Kabuyu could only be 23 24 25 reached by helicopter as stated by Steven Ndau. This evidence has also not been disputed by any of the Respondent’s witnesses. I find that there was no AFORD monitor at Kabuyu throughout the voting process. There is mention of Mphanya, Lemero, [wundya and Katumbi as having had the same problem but no evidence about when it was resolved at these stations. The Petitioner has therefore failed on his legal burden to prove any irregularity at these centres. But is this problem an electoral irregularity? “Irregularity,” is defined in section 3 of the Parliamentary and Presidential Elections Act, in relation to the conduct of an election, as “noncompliance with the requirements of this Act.” I observe that section 72 (2) of the Parliamentary and Presidential Elections Act requires the Electoral Commission to issue representatives of political parties with documents of identity in prescribed form, but such was not the case with Karonga Central Constituency. Steven Ndau tells this court that when his office received names of monitors for political parties and candidates, they were accredited on one sheet for each centre. The list was stamped by the District Commissioner and then sent to the Constituency Returning Officers for onward transmission to Presiding Officers at the Polling Stations. He calls this the accredited list. After 15" April 2019, the policy was that the Electoral Commission was not going to refuse any monitor, so the names of AFORD monitors were sent to the polling stations but not on the accredited list. The advice to Presiding Officers was that they should not refuse any monitor as long as they confirmed with the Constituency Returning Officer. He does not mention of any document of identity made for any of the monitors. So, none of the monitors had a document of identity issued by the Electoral Commission. In my view, this was wrong and noncompliant with the provision. It was therefore irregular for the Electoral Commission to fail to issue documents of identity to the monitors. It appears, the Presiding Officers only had the accredited list and not the other list. Had the Electoral Commission issued documents of identity as envisaged by section 72 (2) there would not have been any challenges as were faced. The Electoral Commission should never ignore to issue the documents of identity to monitors to avoid problems of this nature. 26 27 28 29 It is also important for the Electoral Commission to stick to deadlines. If 15" April 2019 was the deadline for receiving notifications of political party representatives to monitor elections, so be it. The Commission has to have enough time to issue the required documents of identity. The law is that the political party which does not give notification is presumed undesirous to monitor the voting process at the polling station. The allegation is as though the Electoral Commission purposefully refused and chased the AFORD monitors to prejudice the Petitioner. Frank Mwenifumbo supposes that UDF monitors were also affected because he was the running mate to the UDF Presidential candidate. | however have carefully considered all the evidence before this court and do not find proof on preponderance of probability that the Petitioner was purposefully targeted. The explanation is the failure by the Electoral Commission to issue the monitors with documents of identity. Let me turn to whether this affected the result of the election. Under section 73 of the Parliamentary and Presidential Elections Act, political party representatives have the right- (i) to be present at the polling stations and to occupy the nearest seats or positions to the polling station officers so as to be able to monitor all the operations relating to the casting and counting of votes; (ii) to verify and inspect, before the beginning of the casting of the votes, the ballot boxes and the polling booths; (iii) to request and obtain from the polling station officers any information which they consider necessary relating to the voting process and the counting of the votes; (iv) to be consulted about any question raised on the operation of the polling station whether during the casting or the counting of the votes; (v) to consult the voters registers at any time; And the following duties- 30 31 32 33 (i) to act conscientiously and objectively in the exercise of the rights under this section; (ii) to co-operate with polling station officers in the operations relating to the casting and counting of votes; (ii) to refrain from interfering unjustifiably and in bad faith with the duties of the polling station officers so as not to disturb the process of casting and counting the votes; (iv) to maintain the secrecy of the ballot. These rights and duties signify the importance of political party monitors and the effect their absence may have on the result of the election. Although there was no AFORD monitor at Kabuyu throughout the voting process, no AFORD monitor at Katili until 10:00 am and no AFORD monitor at Mlale until 8:00 am, no tangible evidence has been given about how this affected the result of the election. It is evident however, that monitors for DPP and UTM were there, and who surely could have reported any irregularity affecting the result of the election in favour of the MCP candidate to the detriment of the other candidates. Only Benadetta Mwalweni states in her sworn statement that supporters for the 2" Respondent at Mlale were openly telling voters where to tick but the Presiding Officer failed to control the situation and kept on shouting at the monitors when they wanted to intervene. Section 89 of the Parliamentary and Presidential Elections Act provides: (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. 34 35 (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. (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. It is so clear in section 89 that doubts and complaints have to be presented in writing. Failure to follow this clear procedure means lack of seriousness on the part of the complainant and the complaint may not be dealt with. Benadetta Mwalweni has not said whether she or any other monitor complained in writing about the conduct of the 2"! Respondents’ supporters. If she made it, she would have the evidence, because no polling station officer has to refuse such a complaint and has to initial and annex the presentation to the official record of the polling station, according to section 89 (2) of the Parliamentary and Presidential Elections Act. I find no sufficient proof for her claims. The other possible effect could be the labelling of Stream One at Mlale polling station as “Mwalwanda,” which is also the second irregularity alleged by the Petitioner. Patson Kayira testifies that he is the one who raised concern with Richard Tomoka about the label after he was allowed to participate in monitoring the voting process, but that it took the Presiding Officer up to midday to discuss with Mr Winga, the Centre Supervisor and a police officer and replace it with “Mw.” His view was that the name amounted to campaigning for Cornelius Mwalwanda. The Presiding Officer explained that it was meant to guide voters whose names were Mwalwanda. Brinkley Sichali also testifies that he was with Patson Kayira discussing the label of the stream with the Presiding Officer, who, after consulting the Supervisor, quietly removed it and replaced it with “Mw.” Patson Kayira and Brinkley Sichali still thought “Mw” was not proper, because there were other candidates whose names did not start with “Mw.” 10 36 37 38 39 40 Richard Tomoka denies about the label in his sworn statement and states that one stream was labelled “B to Mw” and the other, “Mw to Z.” So too are Enock Nkhambule and Sherlicks Bwinga in their sworn statement. The evidence of Shaba Simwayi, Winnie Sichali, Beaully Munthali and Agness Kayira is also the same on the point. I however find it more probable, on the available evidence, that the stream was labelled “Mwalwanda” at first and then changed accordingly after Patson Kayira intervened. What is missing is how this affected the result of the election. There is no evidence about how many voters were influenced by the label, to vote for Cornelius Mwalwanda. The best way to deal with some irregularities like this one, if there was proof that the intention was to influence voters, is criminal prosecution. This far I find that the Petitioner has brought no evidence on how the absence of his monitors at some polling stations in the constituency affected the result of the election. There is also no evidence about how labelling the stream “Mwalwanda” or “Mw” affected the result of the election. We move on to the counting process. The procedure to be followed is very well provided for under Part VIII of the Parliamentary and Presidential Elections Act as follows: - 90. At the close of the poll at any polling station, the presiding officer shall proceed by first collecting together and separately all unused ballot papers and placing them in a separate envelope provided to him for the purpose and then sealing the envelope and initialling or stamping it over the sealed area. 91, For the purposes of determining the results of the elections at a polling station and, in particular, in counting the votes thereat, the votes cast at a polling station shall be separately classified into- (a) null and void votes; (b) votes for each of the candidates for election as members of Parliament; 11 votes for each of the candidates for election to the office of (c) the President. 92. After the close of the poll at any polling station, and only thereafter, the presiding officer shall, in the presence of other polling station officers and representatives of political parties if any be present, open the ballot box and order the counting of the votes to proceed separately according to a procedure entailing the polling station officers- (a) picking out of the ballot box one paper and displaying the ballot paper to all present and announcing aloud the classification of the vote as specified in section 91; (b) recording on a sheet of paper provided to the polling station officers for the purpose, showing the classification of votes, the votes cast for each classification; (c) displaying the already announced ballot papers and separating them into lots corresponding to each classification; and (d) announcing, through the presiding officer, the number of votes cast at the polling station under each classification. 93. (1) The presiding officer shall cause to be prepared by the polling station officers- (a) a record of the entire polling process at his 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; 94, 95. (vi) the discrepancies, if any, between votes counted and the number of voters; (vil) 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 such record and summary 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. (2) Representatives of political parties at a polling station shall be entitled to a copy of the duly signed summary of the final result of the poll at that polling station. (3) The presiding officer shall post at the polling station a copy of the duly signed summary of the final result of the poll at that polling station. 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. (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 13 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; (c) the total number of persons who voted; (d) the total number of votes for or under each classification of votes in accordance with section 91; (e) the discrepancies, if any, between the votes counted and the number of persons who voted; and (f) 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. (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. Remember, the counting process has three allegations of irregularity. The first is that the votes for each candidate were not displayed during the counting at Mlale. Benadetta 14 42 43 Mwalweni, William Sichali and Patson Kayira testify that Bentley Sichali counted the first ballot box properly, but after that his friends took over because he was slow and they stopped displaying the votes, except null and void votes. Shaba Simwayi, Winnie Shichali, Beauly Munthali and Agness Kayira in their joint sworn statement, Enock Nkhambule and Sherlicks Bwinga in their joint sworn statement and Richard Tomoka in his sworn statement however, testify that they essentially followed the correct procedure. Their evidence is that the votes were counted in one classroom at the station. All the officers gathered around a circle with the ballot boxes and officials leading the counting process in the middle. They started with counting votes for Councillors, one stream after the other. When a ballot box was opened, the ballots were unfolded and arranged properly. Then they would check which candidate was voted for on every ballot paper, call out the name of the candidate and show the ballot paper to the monitors present to verify. This was done for all votes cast, including null and void votes. Each candidate’s votes were placed together and counted afterwards. After that, the votes for the two streams were tallied to find the total for each candidate at the centre. And then Forms 066a, 066b and 066c were filled in and signed by the officials and all the monitors without any one of them raising a complaint. The original was retained by the Presiding Officer and copies given to the monitors. In reply Benadetta Mwalweni disputes that the officers gathered around a circle to count the votes. The monitors were at a distance far from the ballots. There was a desk that acted as a barrier between all the monitors and the officers counting the votes. And the monitors were not able to see what was being counted as they counted too fast like they were counting money. She further states that there was no sufficient light in the room. They were using a torch tied to a beam. Only the officers could see how the ballots were marked, but still the monitors were not allowed to move closer. Patson Kayira states in reply that they indeed used a torch provided by one of the teachers when the 1“ Respondent’s lamp stopped lighting. The officers were counting the votes in bunches of 50 at low tone behind the desk, after which, they were added together, without opportunity for the monitors to verify whether correct bunches were added together. 15 44 45 46 If this was a real matter of concern, section 89 of the Parliamentary and Presidential Election Act provides that doubts and complaints have to be presented to the polling station officer in writing and when so presented, no such officer should refuse to receive the complaint and should] initial every such presentation and annex it as part of the official record of the polling station. But Patson Kayira and Benadetta Mwalweni made no complaint. If the complaint had been made it would have been received, initialled and annexed to the official record of the polling station. We would therefore have sufficient evidence in this court about the manner the counting process was done. If not the official record of the polling station, the Petitioner would have an initialled copy of the complaint received by the Presiding Officer at Mlale. Without such, it is hard for me to determine, on the available evidence, whether it is more probable than not that the ballot papers were not displayed to all present and announced aloud during the counting process. The second issue on the counting process is that in some occasions votes of the Petitioner were thrown on the stack of the 2" Respondent, but the 1st Respondent’s officers were too harsh and arrogant to listen to the monitors’ complaints and the ballots were wrapped quickly and figures entered without verification. Benadetta Mwalweni testifies that for numerous times the Petitioner’s votes were put together with the lot for the 2"! Respondent, but the polling station officers did not heed to objections raised by the monitors until a police officer intervened when a ticked ballot was counted as not ticked. She testifies that this showed to the monitors that more votes were counted wrongly. The Respondent’s response on this issue is according to the joint sworn statement of Shaba Simwayi, Winnie Shichali, Beauly Munthali and Agness Kayira, the joint sworn statement of Enock Nkhambule and Sherlicks Bwinga and the sworn statement of Richard Tomoka, the same as their response to the issue of displaying votes, that they followed the correct procedure in the counting process. They further observe that Benadetta Mwalweni has not given the actual number of the Petitioner’s votes that were put together with the lot for the 2™ Respondent. 16 47 48 49 50 Here is another issue raised without sufficient proof. If the monitors saw that more votes were counted wrongly, they had reason to complain in writing to the Presiding Officer and there upon it would have been dealt with and we would have sufficient proof of the allegation as provided by section 89 of the Parliamentary and Presidential Elections Act. | find no evidence that for numerous times, the Petitioner’s votes were put together with the lot for the 2"! Respondent during the counting process at Mlale. The third issue is that some votes for the 2" Respondent were found in the Councillor’s ballot box and were counted as valid but votes for the Petitioner found in the Presidential ballot box were declared void despite protest from all monitors. The evidence given by Patson Kayira, Benadetta Mwalweni and William Nyirenda shows it was one vote of the 2™ Respondent and one vote of the Petitioner. The witnesses for the Respondents also testify that it was one vote for each of the two candidates, but that both were counted as invalid. Patson Kayira and Benadetta Mwalweni insist in their sworn statements in reply that the 2" Respondent’s vote was counted as valid. Section 88 of the Parliamentary and Presidential Elections Act provides for null and void votes as follows: - (1) A vote cast is null and void if- (a) the ballot paper has been torn into two or more parts; or (b) has been classified as such pursuant to section 83 (2) (c). (2) A null and void vote shall not be regarded as valid and shall not be counted in determining the results of the elections. Section 83 allows for adjournment of the voting at a polling station if, (a) officers are unable to assemble at that polling station in accordance with the Act: (b) there occurs some commotion which causes voting to be interrupted for more than three hours; and (c) in the area where the polling station is located there has occurred some public disaster or a serious disturbance of public order, not being the death of any person, which affects the voting. 17 51 52 53 54 55 And, subsection 2 (c) provides that the votes cast on the original day shall be null and void and shall be classified as such in the records of that polling station prepared under section 93. Going by the definition of a null and void vote in section 88, neither of the two votes in issue was invalid. But even if we added one vote to the Petitioner, it would not change the result of the election. The Electoral Commission returned that the 2"! Respondent got 4907 votes while the Petitioner got 4816 votes for the parliamentary election in the constituency. William Nyirenda talks of some ballots which he thought were invalid for having more than one thumb print but were counted in favour of the 24 Respondent even though he protested. I find no sufficient evidence for this claim from the testimony of the witnesses in this case. In the end I find that there has not been sufficient proof of any irregularities with regard to the counting of the votes at Mlale polling station such as to affect the result of the election for the member of the National Assembly for Karonga Central Constituency. The petitioner has failed to bring sufficient proof on all the alleged irregularities. His petition is therefore dismissed with costs. Delivered in open court this 7 day of July 2019. 18