Navicha v Electoral Commission and Another (Miscellaneous Civil Cause 84 of 2009) [2012] MWHC 71 (14 September 2012)

JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY MISC CIVIL CAUSE NUMBER 84 OF 2009 BETWEEN: MARY THOM NAVICHA........cccccscecececcscscccscscscecess PETITIONER -AND - ELECTORAL COMMISSION. ........ccscececscscscececs 15’ RESPONDENT - AND — LIFRED NAWENA........cccecececscscccscsccessccssecesces 2’? RESPONDENT CORAM: THE HONOURABLE JUSTICE J. M. CHIRWA Mr Kauka, of Counsel, for the Petitioner Mr S. Kayuni, of Counsel, for the 1*' Respondent Felix Kanchiputu — Official Court Interpreter JUDGMENT Chirwa, J This is an application by the Petitioner, Mary Thom Navicha, for the orders or declarations as follows:- 1. That voters at Mapingo Polling Station were corruptly influenced in their voting contrary to provisions of the Parliamentary and Presidential Elections Act; 2. That the results of Parliamentary elections at Mapingo Polling Station be declared null and void on the grounds of blatant violations of the Parliamentary and Presidential Elections Act, 3. That the election of the 2"* Respondent is void; 4. That the Petitioner be declared the duly elected or returned Member of Parliament for Thyolo Thava Constituency; 5. That costs of this action be for the Petitioner. The Petition which is by way Notice of Motion is supported by the Affidavits of Mary Thom Navicha, the within Petitioner; Watson Suluma, a Campaign Director for the Petitioner in the said Parliamentary Elections; Rute Khwetemule, one of the voters in the said Parliamentary Elections; Teleza_Kenesi, another voter in the said Parliamentary Elections; Faishon Jackson Juma, a Monitor for Mrs Triphonia Dafter of the United Democratic Front (UDF), another candidate in the said Parliamentary Elections; Harris Dziwangeti Nkhoma, a Monitor for the 50 — 50 campaign in the said Parliamentary Elections; Jere Chiradzulo, another voter in the said Parliamentary Elections; Falesi Mandindi, one of the Monitors for the Petitioner in the said Parliamentary Elections; Robert Mananga, another Monitor for the Petitioner in the said Parliamentary Elections; George Chisuse, another Monitor for the Petitioner in the said Parliamentary Elections; Eliza Mkholi, another Monitor for the Petitioner in the said Parliamentary Elections and the Affidavit by Lusungu Vulula Gondwe then a legal practitioner in the firm of Messrs Raymond & Hughes, the Petitioner’s Legal Practitioners in this action. There are also filed in support of the application Skeleton Arguments. The application is however, opposed by the 1 Respondent, The Electoral Commission. There is an Affidavit in Opposition sworn by Linos Matope, the Presiding Officer at Mapingo Polling Centre, for the purpose. The 1“ Respondent has also filed Skeleton Arguments in support of its Affidavit. The Burden and Standard of Proof:- The Petitioner having made several allegations of irregularities on the basis of which she seeks orders or declarations of this Court, as aforesaid, I think the general maxim Ei qui affirmat non ei qui negat incumbit probatio — per Viscount Maugham in the case of Joseph Constantine Steamshipline V Imperial Smelting Corporation Limited [1942] AC 154 at p. 174 ought to apply to an election case like the present one just as it applies to a civil case. This seems to be the view also held by Kumange J in the case of Iqbal Omar V Samuel Gama and The Electoral Commission Misc. Appl No. 28 of 1999 (unreported), cited by both the parties, when he said:- “But mere statement in the petition without deponed statements by those who saw and witnessed such irregularities, does not constitute proof of any matters alleged in the petition. The same observation is true of matters alleged in reply to the petition by the respondent. All parties, be it, the petitioner, the respondent etc must present evidence by which the court will be guided”. (e\mphasis mine) And as regards the standard of proof, I also accept as correct the standard as espoused by Kikonyogo, DCJ, in the Court of Appeal of Uganda in the Election Petition Appeal case No. 9 of 2002: Winnie Matsiko V Babihuga Winnie, L. E. M. Mukasa at page 4 where he said as follows:- “Tt is now settled law that the present formulation of 62(3) (now 61(3) 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 balance of probabilities, although slightly higher than in ordinary cases. This is because an election is of greater importance both to the individuals concerned and the nation at large..... A petitioner has a duty to adduce credible or cogent evidence to prove his allegation at the required standard of proof”. Statement of the Parties’ Cases:- It is the Petitioner’s case as per the Petition in this action that by letter dated the 19" of May, 2009 the Petitioner communicated to the District Commissioner responsible for Thyolo District and the 1° Respondent her complaint regarding dissatisfaction with the conduct of the parliamentary elections in the Thyolo Thava Constituency and that the 1 Respondent advised her that her complaint and dissatisfaction were unsubstantiated and would not in any way change the results of the polls in the Constituency. It is the Petitioner’s case further that her said complaint and dissatisfaction emanate from the following facts:- a) That on the 19" of May, 2009 the Democratic Progressive Party (DPP) monitors stationed at Mapingo Polling Station were not allowed to oversee the polling process until quite late in the day ie around 15:00 hours; b) That the Presiding Officer in many polling stations, especially at Mapingo Polling Station would chase the Petitioner’s monitors away from the polling centres despite the monitors having duly presented their accreditation cards; c) That the Petitioner’s monitors refused to sign the summary record of results in most polling stations including Mapingo Polling Station because they did not agree with the results at the said stations; d) That at Mapingo Polling Station the security personnel, that is to say, members of the Malawi Defence Force and the Malawi Police Service, harassed and intimidated the Petitioner’s Monitors; e) That at Mapingo Polling Station, the Presiding Officer and other polling station officers directed voters to vote for the is Respondent; f) That the supporters of the Qn Respondent were campaigning at Mapingo Polling Station during the electoral process and were not at all restrained from doing the same; g) That due to this campaigning the voters were unduly influenced in their voting and this impeded their free exercise of the franchise. It is from the foregoing that the Petitioner says she honestly and truly believes that the Parliamentary Elections were not free and fair at Mapingo Polling Station. The Petitioner further verily believes that had the elections been free and fair she would have been duly declared, returned or elected as Member of Parliament for the Thyolo Thava Constituency. On the other hand, it is the 1‘ Respondent’s case as per the Affidavit in Opposition, aforesaid, that there were no such irregularities in the Parliamentary Elections in the Thyolo Thava Constituency as alleged by the Petitioner. It is otherwise the 1° Respondent’s case that the allegations of irregularities made by the Petitioner are as a result of her loss of the elections because the alleged irregularities never happened. Arguments by the Parties:- Let me at the outset commend both Counsel for the Petitioner and the 1 Respondent for their candid legal arguments presented to this Court which, in my considered view, demonstrate the effort which they had put into this matter. For the purposes of this judgment however, it will not be possible for me to reproduce all the arguments presented by them. I will thus confine myself only to those arguments as I find material for the purposes of arriving at my decision in this action. I will proceed to outline the arguments made on behalf of the Petitioner first and then those made on behalf of the 1 Respondent and then state the applicable law and the application thereof to the facts of this case. The Petitioner’s Arguments:- In so far as the allegation relating to the voters being corruptly influenced in their voting contrary to the provisions of the Parliamentary and Presidential Elections Act is concerned, it is submitted on behalf of the Petitioner that the 2" Respondent corruptly influenced the polling process by using defamatory documentation which he published lowering the estimation of the Petitioner in the minds of reasonable voters. It is also the submission on behalf of the Petitioner that some of the defamatory documentation was published and distributed on the 18™ May, 2009, that is to say, outside the period of campaigning and on the eve of the polling day. That the distribution of the documentation was made on the roadway to the polling station. It is also the submission on behalf of the Petitioner that the 2"* Respondent had bribed teachers who would be presiding officers in various polling stations and that one of such teachers was Mr Matope, the presiding officer at Mapingo Polling Station. It is also the submission on behalf of the Petitioner that Mr Matope’s conduct of the elections at Mapingo Polling Station was not in rhythm with the electoral law since the Parliamentary and Presidential Elections Act mandates the presiding officer and all other polling officers to administer proceedings at the polling stations with utmost impartiality and fairness. It is thus the contention on behalf of the Petitioner that the conduct of Mr Matope was typically that of a presiding officer with instructions to act for the 2"! Respondent. It is also the submission on behalf of the Petitioner that the electoral process at Mapingo Polling Station contravened the Parliamentary and Presidential Elections Act and that the results of the elections at Mapingo Polling Station be nullified and that the computation of the Parliamentary Elections results in the Thyolo Thava Constituency should not take into account the results at Mapingo Polling Station. It is the view of Counsel on behalf of the Petitioner that the nullification of the affected votes would automatically change the results of the elections in the Thyolo Thava Constituency in that the Petitioner would end up with 10,882 votes against the 2"! Respondent’s 10,503 votes. In short, it is the submission on behalf of the Petitioner that the Petitioner has satisfied the prime requirement that must be satisfied for the court to nullify the election results which is that the affected votes should change the results in the Constituency. It is thus the prayer on behalf of the Petitioner that the election results at Mapingo Polling Station be declared null and void and that the Petitioner should be declared the winner of the Parliamentary Elections in the Thyolo Thava Constituency. The 1“ Respondent’s Arguments:- It is the submission on behalf of the 1 Respondent that it is clear from the Affidavit of Mr Matope, the Presiding Officer at Mapingo Polling Station, which features highly in the Affidavits in support of the Petition, that no monitor was chased away and that all the monitors present signed for the election results. It is also the submission on behalf of the 1 Respondent that the absence of a representative of a political party is not fatal and does not have any bearing on the result of the election. It is the further submission on behalf of the 1°* Respondent that this issue does not fall within the purview of the irregularities envisaged under Section 114 of the Parliamentary and Presidential Elections Act. It is also the submission on behalf of the 1‘ Respondent that the mere fact that irregularities occur in an election is not sufficient ground per se to have the election results nullified. Reliance here was made on the proviso to Section 114(3)(a) (b) and (c) of the Parliamentary and Presidential Elections Act and the proviso to Section 114(3)(d) of the said Act. It is therefore, the contention on behalf of the 1 Respondent that the Petitioner has failed to substantiate the allegation contained in her Petition in the context of Section 114 of the Parliamentary and Presidential Elections Act. It is the further contention on behalf of the 1° Respondent that the Petitioner has not adduced any evidence to show that the alleged irregularities affected or could have affected the result of the election. And in relation to the allegation that voters were being directed to vote in a particular way, it is the submission on behalf of the 1° Respondent that no affidavit has been filed by any of the voters who were directed to vote for a particular candidate to show that the voters voted not according to their choice but following directions of the presiding officers. Relying on the observation by the Court in Republican Party of Namibia and Another V Electoral Commission of Namibia and Others (no citation given) it is the submission on behalf the 1‘ Respondent that in the absence of proof that polling officers instructed the voters to vote for a particular candidate otherwise than according to their choice, there is no proof that the outcome of the results were affected. It is thus the further submission on behalf of the 1*' Respondent that each voter voted secretly and there is no indication that the Petitioner lost on the basis of the fact that voters were influenced to vote for Mr Wilfred Nawena. In conclusion it was submitted on behalf of the 1‘ Respondent that the Petitioner has not made out her case within the ambit of Section 114 of the Parliamentary and Presidential Elections Act but has failed to substantiate her allegations that irregularities contained in the Petition and Affidavits in support thereof occurred and that they affected the outcome of the election. It is therefore, the prayer on behalf of the 1** Respondent that the Petition herein be dismissed with costs. Determination of the Action:- The present application has been made pursuant to Section 114 of the Parliamentary and Presidential Elections Act (Cap. 2:01 of the Laws of Malawi) as read with Section 76(3) of the Constitution of the Republic of Malawi. And since the merits or demerits of the complaints in this Petition will depend upon whether or not the Petitioner has satisfied the requirements of the said provisions it is therefore, pertinent that I reproduce the said provisions as follows:- First, Section 114 of the Parliamentary and Presidential Elections Act, “(1) An appeal shall lie to the High Court against a 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. (2) On hearing a petition under subsection (1), the High Court — a) shall subject to subsection 3, make such order or orders as it thinks fit: b) in its absolute discretion, may or may not condemn any party to pay costs in accordance 10 (3) with its own assessment of the merits of the complaint. An order of the High Court shall under subsection (2) not declare an election or the election of any candidate void except on the following grounds which are proved to the satisfaction of the Court — a) that voters were corruptly influenced in their voting contrary to any provision of this Act; or had their ballot papers improperly rejected, or voted more than once, b) that persons not entitled to them were improperly granted ballot papers; or c) that persons entitled to them were improperly refused ballot papers: Provided that the court shall not declare an election void, after proof of any ground in paragraphs (a), (b) or (c), if it is satisfied that the number of votes involved could not have affected the result of the election; d) non — compliance with this Act in the conduct of the election: Provided that, if the court is satisfied that any failure to comply with this Act did not affect the result of the election, it shall not declare the election void; e) that the candidate was at the time of his election a person not qualified for election or that he was not properly nominated, or that a duly qualified candidate had his nomination improperly rejected by the returning officer. ii (4) The court shall have power to direct scrutiny and recount of votes if it is satisfied, during proceedings on an election petition, that such scrutiny and recount are desirable. (5) At the conclusion of the trial of an election petition the court shall determine whether the member whose nomination or election is complained of, or any other and what person was duly nominated or elected, or whether the election was void, and shall report such determination to the Commission. Upon such report being given such determination shall be final. (6) No application shall be made to the High Court for an injunction or for an order restraining the holding of an election within fourteen days immediately preceding the date of the election. (7) Notwithstanding subsection(6), the High Court shall have power, subsequent to the holding of an election, to declare void the election if, upon hearing the petition referred to in subsection (1), the High Court is satisfied that there are good and sufficient grounds Jor declaring void the election”. And then Section 76(3) of the Constitution: “(3) Any person who has petitioned or complained to the Electoral Commission shall have a right to appeal to the High court against determinations made under subsection (2)(c) and (2)(d)”. For the Petitioner in this action to succeed in her Petition I need to be satisfied as to the following:- 12 a) that there were blatant violations of the Parliamentary and Presidential Elections Act during the voting process at Mapingo Polling Station either in the form of corruption/bribery, defamation etc and b) that the said violations did affect the result or outcome of the election. From my perusal of the several Affidavits filed in support of the Petition herein and even the Petitioner’s Skeleton Arguments, it is clear to me that the major issues of complaint which I need to consider are: whether any voter was directed to vote for the 2" Respondent and that as a result of such direction did in fact vote for the 2" Respondent contrary to his or her choice; whether or not the Presiding Officer at Mapingo Polling Station, Mr Matope, and the other polling stations officers were bribed and whether or not the 2" Respondent had used defamatory documentation in his campaign in order to dissuade the voters from voting for the Petitioner. First, regarding the voters being directed to vote for the 2’ Respondent by the Presiding Officer: while the Petitioner’s witnesses are saying this was the case, the same is strongly disputed by the 1 Respondent’s witness. The deponents of the Affidavits having not been subjected to any cross — examination it is thus difficult to say precisely who could be telling the truth. Suffice to say that while it is possible that there might have been some voters who were directed to vote for the 2" Respondent either by the Presiding Officer, Mr Matope, or the Polling Station Officers as per the allegations in the Affidavits in support of the Petition there is however, no evidence before this Court by any of the persons who were allegedly 13 directed to vote for the 2"’ Respondent to show that he or she had initially intended to vote for some other candidate than the 2" Respondent but ended up voting for the 2" Respondent as a result of the direction. The names of some of the persons allegedly directed to vote for the an Respondent having been mentioned in some of the affidavits I think it was practicable for the Petitioner to ask those persons to swear affidavits to the effect that they had decided to change their choice of a candidate to vote for as a result of the alleged direction. It is here worth noting that even Tereza Kenesi, one of the deponents of the Affidavits in support of the Petition herein, who claims to have been directed by the said Presiding Officer to vote for the 2" Respondent does not say in her Affidavit that she ended up voting for the 2" Respondent as a result of the said direction as opposed to the candidate of her own choice. What the deponent clearly says in her Affidavit is that: “a serious row ensued between myself and the Presiding Officer when I resisted his wishes”, which is sufficient evidence, in my view, that she must have ended up voting according to her own choice despite the attempt to direct her who to vote for. Secondly, regarding the allegation that the Presiding Officer Mr Matope, or the polling station officers had received bribes from the 2"! Respondent. Let me here hasten to say that an allegation of bribery is a very serious allegation and as a court of law I cannot make a determination on such an allegation based on mere suspicion as is the case in this action. The Petitioner ought to have adduced evidence by calling the witnesses who saw the Presiding Officer and the polling station officers receive the bribes. This is the point emphasised upon by Kumange J in the Iqbal Omar case (supra). There is no evidence before this Court by any of the deponents to 14 substantiate the said allegation. In the circumstances I am inclined to find that the Petitioner has also not proved this allegation. And thirdly, regarding the allegation that the 2"’ Respondent corruptly influenced the polling process by using defamatory documentation which he published lowering the estimation of the Petitioner in the minds of reasonable voters. After carefully perusing the several Affidavits filed in support of the Petition, I have found no Affidavit which supports the Petitioner’s allegation in this regard. Indeed had there been any such defamatory documentation as alleged by the Petitioner, how come is it that no single deponent apart from the Petitioner herself has mentioned of the same in his or her Affidavit? But even if there were any such defamatory documentation as alleged the Petitioner was still obliged to adduce evidence of a voter who had been influenced not to vote for the Petitioner as a result of the alleged defamatory documentation. The Petitioner though obliged to do the same as per the Jgbal Omar case (supra) has dismally failed so to do. But even if the Petitioner had substantiated the allegations pertaining to the voters being corruptly influenced to vote for the 2"' Respondent or established the existence of any other electoral irregularities, which apparently she has not done, I would still require to be satisfied that the number of the votes involved as a result of such an influence or irregularities could have affected the result of the election. The only assertion made by the Petitioner in this regard is that if the total number of votes at Mapingo Polling Station are discounted from the total number of votes cast in the Thyolo Thava Constituency then she would have amassed 15 a total of 10,882 votes against the 2"* Respondent’s total of 10,503 votes. The Petitioner has however, not explained why it should be all the votes cast at Mapingo Polling Station being discounted or disregarded and not only the votes of the those voters who had been corruptly influenced to vote for the 2" Respondent as alleged. It is possible, in my considered view, that some of the voters had consciously voted for the 2"’ Respondent without any outside influence whatsoever such that if their votes were to be discounted or disregarded together with the votes of those who had actually been influenced as proposed by Counsel for the Petitioner then the same would result in some injustice being occasioned to both the voters and the candidate in favour of whom the votes had been cast. As a Court of Law I would not wish to be party to the occasioning such an injustice. It would, in my considered view, have thus been prudent for the Petitioner to have come up with the exact number of votes which were cast in favour of the 2™ Respondent as a result of the 2™ Respondent having corruptly influenced the voters contrary to the provisions of the Act which votes could then be properly discounted. In short, I find that the Petitioner has failed to show that the voters at Mapingo Polling Station had been corruptly influenced in their voting within the purview of Section 114(3) (a) and (d) of the Act. I further find that even if there had been any such irregularities in the conduct of the elections as alleged, or any corrupt influence in the voting also as alleged, there is no evidence before this Court to show that the outcome of the elections in the Thyolo Thava Constituency could have been affected by any of the said allegations for the Court to declare the election void as per the provisos to Section 114 (3) (a) and Section 114 (3) (d) of the Act. Put 16 simply, the mere fact that irregularities occur in an election is not sufficient ground per se to have the election results nullified (see provisos to Section 114(3) of the Parliamentary and Presidential Elections Act. In conclusion, I find that the Petitioner has not succeeded in making out her case within the purview of Section 114 of the Parliamentary and Presidential Elections Act. I further find that the 2’ Respondent was in the premises duly elected as a Member of Parliament for the Constituency. I have thus no option but to dismiss the within Petition. I now turn to the question of the costs of this action. Section 114(2) of the Parliamentary and Presidential Elections Act gives the Court discretion on costs. I am of the considered view that had Counsel for the Petitioner considered the effect of the provisos to Section 114 (3) (a) and Section 114 (3)(d) of the said Act very carefully he would not have proceeded to commence this action on behalf of the Petitioner after failing to establish the exact number of votes which could have been affected by the alleged irregularities. The Affidavit of Counsel Lusungu Vululu_Gondwe sworn on the 23" day of July, 2009 in paragraph 7 shows that Counsel for the Petitioner did not have the results of the poll at Mapingo Polling Station at the commencement of this action because CCJP had not been furnished 17 with the same allegedly because the same were not given to them by the presiding officer. It was thus premature for Counsel to have proceeded to commence this action without such vital information. In the circumstances, I would exercise the Court’s discretion herein by awarding the costs of the action to the 1“ Respondent. Dated this 14th day of September, 2012. JUDGE 18