Sata v Banda and Ors (SCZ EP 1 of 2008) [2009] ZMSC 159 (11 March 2009)

HAtLCHILUFYA SATA Vs RUPIAH BWEDZANI BANDA ^ney-general SECTORAL COMMISSI 0F2am^^ supreme court mamkdma. do. m»wa. ch,tend,, silom ba snd MWA„flMWJMBWA, jb 17th February, 2009 and 11th March 2009 SCZ/8/EP/01/2008 Flynote Presidential election petition, application for recount of votes, when can it be granted? Headnote The Petitions sought an order for a recount of votes cast in all the 150 constituencies in the country on he ground that, some of the Returning Officers were not duly gazetted; that voters in two constituencies, ie Sinjembela and Kalabo Central Constituencies, voted a day after the appointed poll date and that some of the election documents on which the election results were written had anomalies. taking of such an order. iv. Matters deposea . to in an affidavit, and are contested, do not amount to evidence, Application for recount declined. for the Petitioner: Kelvin BWALYA, KBF Partners; Mr. W MUBAMr/n Mr. B.c MUTALE, SC, Messrs Fir p & C°; Mr’ W- ^BIMBA of kahimh p . ■ lungu of Andrea Masiye & Co. forthe Respondents: Mr. M. MALILA sc Attorna., -nr . ,, „ Pr0f. MVUNGA, SC of Mvunga & Associates; Mr. Cl. MUMDIA SC of cTm^' * S°'iCit°r'Genera'; of Messrs Shamwana & Co. and Mr. M. BANDA, of Banda, Watae and Associates. ' SH°NGA' CASES REFERED TO: 1. 2. 3. PARAGRAPH 940, HALSBURY’S LAWS OF ENGLAND 4TH EDITION GEORGE PHIRI VS GEZANI PHIRI (1979) ZR 126 WISAMBA VS MAKAYI (1979) ZR 295 LEGISLATION REFERRED TO: 1. THE ELECTORAL ACT, NO. 12 OF 2006 can be inspected and all the votes recorded therein and cast in the said election in each of the said Constituencies recounted in such manner as the Court may order and that the Court makes such o nuential orders or directions... as it will deem fit on the grounds and facts diScio5ed inthe The petitioner filed an aff.dav.t in support of the summons and a further supplementary affidavit Th Javits contain various allegations; which in the main, impugn the conduct of the eta « by the 2nd Respondent, the EIM„al Commission o(2amWi Mf ° petitioner, summarized the allegations as falling into three categories. !. The first category comprise of allegations that in some Constituencies, elections were supervised by persons who were not legally authorised to conduct the elections. In paragraph 17 of his affidavit in support of the summons, the Petitioner named these Constituencies as Chisamba, Mwembeshi, Muchinga, Serenje, Milengi, Nakonde, Mbala, and Senga Hill. The Petitioner alleges that Returning Officers in these Constituencies were not duly gazetted. To buttress this point, the Petitioner exhibited the Government Gazette of 27th October 2008, in which by Gazette Notice No. 455 of 2008, the 2nd Respondent published the names of persons appointed to be returning officers in the Presidential elections in named Constituencies. Mr. MUTALE submitted that this Gazette Notice confirms that returning officers for the named constituencies were not duly gazetted. He went on to state that in paragraph 15 of the affidavit in opposition, sworn by one, Priscilla Mulenga ISAAC, the 2nd Respondent acknowledged this error. In the said paragraph 15, one Priscilla Mulenga ISAAC deposed that names of all Returning Officers were duly gazetted. With regard to Chisamba, she deposed that the Returning Officer died prior to the election date and another Returning Officer was duly gazetted. For Muchinga and Serenje Constituencies in Serenje District Ms ISAAC deposed that the names of the Returning Officers were inadvertently transposed in the Gazette Notice and so were the names of Returning Officers for Senga Hill and Mbala Central constituencies ^ Mbala District. • ... ..■■si. ^ly^’ as Jamesj S3 Jj^Onte^^ 5 Otzl X-his^mbarM a za b u ka-Ge n tral^n^wacha-^ submission, however that they had looked at all Gazettes prior to 30th October It was Mr. MUTAL 5 replacing Gazette Notice 455 of 2008. According to him, the only inference to 2008 and there was oeanwn was that elections in me named Condit „ by Ms ISAAC With „ transposed. Mt. mutau submItt^‘ ^k. Sengs «, an7*« “ere „M t0 M *«so tenons that it »y„MatK „hat " « “as s !tMi On the averment by the Respondent with regard to u-. Returning Officer were erroneously recorded as James M SIAMF °nSt'‘UenCy'that the names of MALUPANDE, Mr. MUTALE submitted that such a contentin ” faCt James were two different individuals. He submitted that it was Untenab'e'as'0,1 the face of X these documentary evidence that this is one and the same person ReSp°ndents t0 show' by named Constituencies were managed by persons who had f° SUm'a”the y persons who had no legal mandate to do so. 2. The second category of allegations, as submitted by Mr. MUTALE are that in Sikongo and Sinjembela Constituencies voting took place on 31st October and 1st November 2008 contrary to Section 25, 26, 28 and 29 of the Electoral Act. In paragraph 12 of his affidavit in support of the summons fora recount, however, the Petitioner deposed that in Kalabo Central Constituency voting was conducted on 31st October and 1st November 2008, a period outside the prescribed voting day of 30th October 2008. Mr. MUTALE contended that the Respondents have affirmed in their affidavit in opposition that voting took place on different days in the named constituencies. n Paragraph 10 of the affidavit in opposition, the Respondents deny that voting was conducted on 31st October and 1st November in Kalabo Central Constituency as alleged-b;^ paragraph 12 °f his affiddvTtTmsupport. Ms ISAAC deposed that it was in Sinjembela Constituency where in one out of that voting_was7_co_p.d.u.ct.ed on-30th:Octo.b^r720bOhis-was at Lipaneno Basic—____ constituency, electrons isscej iif^myangan' --- --- .* •. . submission referred to the Press Statement by the Chairperson of the Electoral ■" -7 ^ voting, in named polling stations, took place on 31st October 2008 Mr. MUTALE in his su^ Commission ofZarn submitted that this statement negates any assertion that voting in these and 1st November zuuo. oc extended. He submitted that Section 29 of the Flprtnrai a^ • « and the Respondents XX " “V *' »* “ ha*e Mr. KAPUMPA augmented the submissions by Mr. MUTALE on this point. He submitted that the statement by the Chairperson of the Electoral Commission of Zambia was issued on 2nd November 2008, after the gazetted time for the elections had expired. According to Mr. KAPUMPA, this was contrary to Section 29 of the Electoral Act which requires that such extensions be gazetted before the elections. He likened the statement by the 2nd Respondent to closing the stables after the horses have run away. 3. The last category of allegations by the Petitioner relate to alleged anomalies in the documentation processed during the elections of 30th October. In his paragraph 11 of his affidavit in support of summons seeking a recount, the Petition deposes that "the electoral process in terms of recording and announcement of results at polling stations, constituency polling totalling centres, district totalling centres and the national centre at Mulungushi Conference Centre revealed discrepancies anomalies and disparities which can only be reconciled or finally determined by way of ballot scrutiny and recount." The Petitioner then goes ahead to name some Constituencies and polling stations where there are alleged disparities in the total number of votes cast and used ballot papers; differences between the results recorded in words and figures; and where at verification, some ballot boxes were found to be unsealed. In his supplementary affidavit in support, the Petitioner exhibits more documents to support his contention of malpractices in the administration of the electoral process. Mr. MUTALE submitted that the pattern of errors continued throughout thereby bringing into serious doubt, the authenticity of the results and hence the need to recount to establish the true position. - XSX'. . affidavit showing g । then referred to a number of Zambian cases in which the issue of a recount arose, in one such se,of GEORGE PHIRI VS GEZANI PHIRI (2), we have been referred to the holding by HADDEN J when he 5he court may make an interlocutory order for a recount in the proceedings brought by way of an election petition if the evidence justifies the making of such an Order." We have also been referred to the holding of CULLINAN J in the case of WISAMBA VS MAKAYI (3) where he said that "although the Act does not provide for a recount, there is a common law right in the matter and this is done by way of interlocutory summons supported by affidavit before the trial of the Petition." We have been referred to other cases which show that the request for a recount is through an interlocutory application. We have also been referred to our own decision in SCZ/EP/01/2002 between ANDERSON KAMBELA MAZOKA VS LEVY PATRICK MWANAWASA, THE ELECTORAL COMMISSION OF ZAMBIA AND THE ATTORNEY-GENERAL. It was Mr. MUTALE's submission that in our Ruling in this case, we acknowledged previous High Court decisions and the common law remedy available to a Petitioner for a recount if there is evidence justifying the making of such an Order. He submitted that the question now was whether the Petitioner had adduced enough evidence in support of his summons. According to Mr. MUTALE, the answer is in the affirmative in that there was more than cogent evidence in the Petitioner's three affidavits to justify the granting of an order for a recount. In response, Counsel for the Respondents relied on the affidavit in opposition sworn by Priscilla Mulenga ISAAC. According to them, this affidavit has rebutted all the allegations in the Petitioner's three affidavits. In the said affidavit in opposition, the Respondent denies that there were any disparities between the total number of votes cast and the total number of used ballot papers in the named polling stations. It is stated that the perceived disparities are actually rejected ballot papers and to buttress their point, they produced announcement forms for the polling stations concerned. ^or Kasempa Constituency, it was deposed that the error alluded to were corrected before the L declaration of the results with the sanction of aggnts mjt and to this effect tjteyhavAexm Agreement sigiS&B^^ ackn®!? <Wthe corrections-OhUSdlsparitiesbetween g rani ^jTaye at st«r — v Mr SICHINGA SoliciLoi 0 h He stated that all the allegations by the Petitioner have been contradicted or adequately General, submitted that there is insufficient evidence before us to grant the ° in opposition. He submitted that the case of MAZOKA AND MWANAWASA rder soug t. explained in the am / Mr. MUTALE. was on a!! fours with the current application in that while rhe Petitioner has 1, «*»' Constituencies and p„„in6 statlonl ttoe. „ ’jesses to the sad a listens. Ha observed that the Petitioner does not state that he was present tall the stations where the anomalies allegedly occurred. Mr. SIGHING A further submitted that, as in this case, the 3rd Petitioner in the MAZOKA case, Brigadier General MIYANDA had applied for an Order of recount before the hearing of the Petition. He relied on two affidavits, giving details of reports received from the field. He went on to state that this Court, in that case, rejected affidavit evidence and said that what was said in the affidavits was not evidence. According to Mr. SICHINGA, the position of the Court was that in not having heard evidence by the person mentioned, there was no evidence. Mr. SICHINGA submitted that the Court, in this case, has not heard any of the witnesses on whom the Petitioner has relied. He contended that affidavit evidence cannot merit an order for a recount. He went on to state that the affidavit in opposition, when responding to the various allegations contained in the Petitioner's affidavit, reveals that various issues are highly contentious. He submitted that evidence must be led from the various possible witnesses before such an application can be considered favourably. Mr. SICHINGA also submitted that it was unnecessary for the Petitioner to seek a recount of all 150 Constituencies when his allegations relate to about 24 constituencies and a few other polling stations. He urged us to reject the application. Mr. MUNDIA, on behalf of the 1st Respondent filed written submissions which he augmented with oral arguments. He endorsed the submissions by Mr. SICHINGA. Mr. MUNDIA submitted that the allegations in the Petitioner's affidavits do not go to the root of the need for a recount. According to Mr. MUNDIA, 'the various discrepancies alluded to did not affect the Petitioner alone, but all the four Presidential candidates. He went on to state that in most, if not all the exhibits relied on, the results were authenticated by representatives of the parties and even where there was a mistake, like in Kasempa, there was a correction which was accepted by political parties. . . M. UN 01A subm; jn thjs case> the petitioner is putting the cart before the horse. He contended evidence. H® ®re js very clear and it has laid down guidelines one of which is that evidence has to that the MAZO all cas^TyjrerQTecQurO^^ be called. professor MVUNGA, in his submission stated that the MAZOKA case is thei» x- application and according to him, this application falls in that amhit u g aUthOn'tV this the contrary. He submitted further, that a recount is ordered at the t i “ Pet,t'°ner can show t0 benefited from the evidence. He went on to state that afrx •. ■ Stage'When the Court has h3Ve not been called or cross examined, most of it beine ' evidence-c'ting named sources, who issues, cannot be resolved by affidavits but on full trial C°n,eCtUre' sPeculation and raising contentious SIAME AND MALUPANDE, the returning officer for m ’ insist that he is one and the same perLn eX3mple °f the alleSation elated to Wh°m the ^-dents only be resolved at full trial. Professor MVUNGA also refL MVUNGA'thls ,s a conflict which ca" fora recount at a polling station. He stated that no e t0 E eCtoral ReBu'ations which provides wSsfaetion ,he process. He sub^g ”"inS ««« o< According the Petitioner now wants a recount in case he won. On the prayer, that a recount be ordered in all 150 Constituencies, Professor MVUNGA submitted that, this request is disproportionate to the complaints made in the affidavit, which relate to a lesser number of constituencies. He argued that if a recount was to be ordered in the other constituencies not cited, it would amount saying that the Petitioner had an automatic right to a recount without reason and this would be contrary to the law, including the common law. On the first category of anomalies cited by the Petitioner, that elections in some constituencies were conducted by persons who were not legally authorised to do so; Professor MVUNGA submitted that if this Court were to rule that these persons were not legally authorised to conduct the elections, we would be talking of the validity of the election. According to him, Mr. MUTALE's submission on the mandate of the officers who conducted the elections is misplaced. He argued that one cannot ask for a-— recount of an election when they are saying that it was not valid. - • . °n the third category of alleged anomalies cited by th the anomalies disclosed and in certain respects 6 Petltioner- Professor MVUnca i l i l . i l i ,„,,,«««t™' « "avoidable. He submitted th., this applied,, a „ , (,rfetthe[( should be dismissed with costs. andbl Mr.$H0NGA, in his submission stated that correct the solicitor-General and other Counsel for the Respondents He 6 °" MAZ°KA decision bV recount has properly been dealt with in the MAZOKA decis' ' bad bmogb, his application ,5 XXZ / ‘“I ' " On t0 state that the aspect of a ,h' SW0KAc.se. Accords t0 Mt. SHONGA. 1 must be the same as the result in the MAZOKA Cdbc. Mr. SHONGA's secondary argument on this point was that there is insufficient evidence. He submitted that the three categories of alleged improprieties relied on by the Petitioner have one thing in common; they stem from the alleged failure by the electoral officers to comply with certain provisions of the law. He stated that these are not the type of allegations capable of moving this Court to look favourably on the Petitioner's application. According to Mr. SHONGA, a significant part of the driving force behind the application in the MAZOKA case stemmed on exactly that; allegations that electoral officers had not followed the Electoral Act. He went on to state that in addressing this aspect this Court stated:- "The other issues raised by the third Petitioner relating to non compliance by the returning officer with certain Articles of the Constitution and the Electoral Act have no relevance to the application for a recount and would be better dealt with by way of submission at the conclusion of the hearing of the Petition." Mr/SHONGA, relying on this portion of our Ruling, submitted that allegations touching on alleged breach of the Electoral Act^by olectoraLofficers hay^ norpiace in this application.? ^ij6niwas^da^^^ verhed by Regulatidnr- some-polling^tai On the prayer that a recount be ordered in all 150 allow each constituency and polling station c°nstituencies, SHONGA allegation has been made with respect to 24 constS^X^' any stretch of construedtoapplytotheremainderoftheconstituenc.es Hpf „ aliegations in 24 constituencies, this Court is being asked to *Stated ^at based on the rebutted urged us not to allow th.s to happen and to dismiss this app|icat 0? T*" 3"150 ™'^ncies. He MH'^dLion with costs. in response to the various submissions on behalf of the j INDIA'S reference to the Electoral Act, as to whether the “PlW'' “““H that Mr. station ought to be gazetted was totally misplaced Host 71Pp°nement of an election at a polling .. general time tab,, ongb, t0 gazette ’. „.nt, ate conducted at the po„|„' X »“< " "* h “ >» postponing an election date, it must be an electinn • * • SU m'ttG thatwhenthe law is referring to new Section 23 of the Ac. a Ho wont on to state that postponement must be gazetted and publicized in the media. On Professor MVUNGA's submission that recounts were not requested for under Regulation 43, Mr. KAPUMPA submitted that there is a proviso to this regulation which provides that such a request may be refused. According to Mr. KAPUMPA, chances are that a refusal in this case was inevitable. He stated that this application is interlocutory and if granted, it may help the Court when it comes to the main trial of the Petition. In response to Mr. SHONGA'S submission, that in the MAZOKA case, this Court held that non compliance with electoral laws does not entitle one to a recount: Mr. KABIMBA submitted that the evidence of the Petitioner has not been contradicted by the Respondents. He contended that erroneous recording of results cannot be said to be non compliance with electoral laws so as to oust the jurisdiction of this Court. . J^Mhe ^krojssior^^ MVUNGA'that the ^Q^^t October andrist. November 2008 in impacted on the validity of the election and could notj^ify a recount/M on^cgnggwjragfeg^ :om i|||gjgg§ggg5gggg^theremustBejS^^ . KABIMBA submit ted that there is nothing in. the^AZOKA Baling to suggest that tnis evidence muS^ Viva voce, through witnesses. He went on to state that there is sufficient evidence in the threVX .. by the Petitioner, as contested in the affidavit in opposition by the 2nd Respondent He argued th contended, the affidavit of Ms ISAAC has rebutted the allegations, then there is a ground for th r ' to make a determination. Mr. KABIMBA submitted further that while in the MAZOKA Pe^onth f betwe?n the winning and losing candidates, in this ^tions by the 2nd Respondent. Petition, the focus is on the administration of On the late elections in Sikongo and Sinjembela; Mr KABIMRA . . 2nd Respondent published on 2nd November 2008 it is cl h that from the ^ment of the that elections in the affected areas had not taken place on^h T ReSpOndent was not aware n0 communication between the 2nd Respondent and it «• C 6 eCt'°n date suggestingthat there was view that if the Order for a recount is not ™ P " ' KABIMBA was of ^e exercise. 6the Petltion wil1 be rendered a mere academic We have considered the application before us, together with the affidavits in support and in opposition to the summons seeking an order of recount, and the submissions of Counsel. There is no doubt that in a proper case, a Court can order a recount of votes cast in an election. However, authorities cited both at common law and our own cases show that a recount is not granted as of right but on evidence of good grounds for believing that there has been a mistake. Mr. MUTALE has neatly categorized the alleged anomalies on which the Petitioner's application is founded into three groups. We propose to deal with this application in that Order. We will deal with the first and second categories of the alleged anomalies together. In the first category of alleged anomalies, the Petitioner alleges that the names of returning officers in Chisamba Mwembeshi, Muchinga, Serenje, Milengi, Mbala and Senga Hill were not gazetted. The contention in this allegation is that elections in these areas were conducted by unauthorised people,- The Respondents in their affidavitin^opposition allege that the names were duly gazetted excepctlfaHH tra'hsDOSed or wrongly reflected. ™ -certain instances, the names were^^go^ a? !turning=j "ft second category relate to voting^n 31st Oct h Paragraph 12 of his affidavit in support of the J? ^^^^ber Was conducted on 31st October and 1st Novena . • °n$ f°r a rec°unt, the p^^ and Sikongo. The allegation of conducting »i • ’ "1 Kalabo Central , t. tloner alleged that “ gthesaida||egatjon that <be 2nd Respondent eroded to delays in four Constiwencies- in their submissions on this point, Counsel on both sides referred us to provisions in the Electoral Act and the Electoral Regulations In the Electoral Act, we were referred to, among others, Section 29 of the Electoral Act which provides for postponement of an election at a polling station in a prescribed manner We were also referred to Regulation 23 of the Electoral (General) Regulations 2006 which allows a presiding officer of a polling station to postpone voting until later in the day or some other day in case of emergency. It has been argued on behalf of the Respondents that these allegations, if proved, touch on the validity of the elections in the affected areas and would thus not entitle the Petitioner to a recount. Mr. KABIMBA in his response argued that if proved, the figures would be deducted from the totals. It is clear to us that in both the first and second categories of alleged anomalies, the allegation is that the Respondents did not comply with the requirements of Electoral laws. Both sides referred to specific provisions of the Electoral Act and its Regulations in aid of their arguments before us. A request for a recount is premised on allegations of anomalies in the counting, compilation and transmission of results. The purpose and focus, on a recount is to ascertain the correct number of votes cast in favour of each candidate. Should an application for a recount be granted, the ballot papers are counted again and the resulting numbers compiled. It goes without saying, therefore, that if a candidate Questions the legality of an election, the number of votescast in favour of each candidate become irrelevant. The whole process can be voided. waggonducj □on !g6u nt-beca usMKei ^ABIMBA'S inge™° h Electoral laws have no relevance in an application for a recount. The first and non complia^^ of a||eged anomalies are, therefore, irrelevant to this application for a recount, second catcgo ation based on these two alleged anomalies cannot succeed. Therefore, thisai n we^reiterate^ur Ruling in the MAZC^KA ^se that issues of Coming to the third category of allegations, they relate to alleged anomalies in the documents processed during the elections. These include various allegations touching on disparities between the numbers in figures and those m words; information received from agents who attended verification of unseated ballot boxes; results not being signed for by presiding officers, agents and monitors The Respondents in their affidavit in opposition dispute the various allegations. They state that the numbers used to tally the results were those in figures and not in words; that some perceived disparities were actually rejected ballot papers; that in one constituency where a mistake in compilation was made, corrections were done and signed for by party representatives; that the sealing and unsealing of ballot boxes in named constituencies was done in the presence of party agents because vital documents needed for tallying had been sealed inside the boxes; and that there were no disparities in the verification of ballot paper account in the named constituencies. The affidavits in support of the application for a recount and the affidavit in opposition to the said application show that what is alleged by the Petitioner is heavily contested by the Respondents. It is common cause that trial in this Petition has not started. The Petitioner is seeking an order of recount upfront, before calling any evidence. This procedure has not been used in the trial of any election petition in our Courts. Cases cited show that an order for recount is interlocutory, made only on the basis of cogent evidence justifying the making of such an order. The question, therefore, is whether evidence adduced through affidavit would be cogent enough to warrant the granting of an order for a recount? . . . In this case, allegations have been maue y - ? —t - hppn made by the Petitioner. To these allegations-there are the makers of . „ ' the documents which have oeei - ctify as to the actualnumber of votes obtamedrby^eac-teandidate in those hppn exhibited; there are eye witnesses who were present in the polling . . used fof spoiling, . I'T ’ . Lather it was the numbers in figures and nffl^ O' jons iit fire d occasion to pronounce ourselves on a similar application in the MAZOKA VS MWANAWASA We have ha^° App|icant gave details of reports received from his officials in the field without calling Petition concerned to give evidence. We stated then that what was contained in the affidavit was not the peop evidence- not been persuaded to depart from this holding. petitioner will have to call evidence to prosecute his Petition. He is at liberty, as prayed for in his petition, to apply f°r an order °f recount which the Court can only grant once there is sufficient doubt cast on the accuracy of the results. As at now, this application is premature and it is refused with costs to the Respondents. I. C. Mambilima DEPUTY CHIEF JUSTICE D. K. Chirwa SUPREME COURT JUDGE P. Chitengi SUPREME COURT JUDGE S. S. Silomba SUPREME COURT JUDGE