Victor Chibvumbu Kachaka v Namakando and Anor (Appeal 163 of 2002) [2003] ZMSC 172 (23 September 2003)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA APPEAL NO. 163/2002 (Civil Jurisdiction) IN THE MATTER OF: AND THE ELECTORAL ACT, CAP.13 OF THE LAWS OF ZAMBIA IN THE MATTER OF: AN ELECTION PETITION FOR LUKULU WEST PARLIAMENTARY CONSTITUTENCY BETWEEN: VICTOR CHIBVUMBU KACHAKA APPELLANT AND SIMASIKU NAMAKANDO ELECTORAL COMMISSION OF ZAMBIA 1st RESPONDENT | 2nd RESPONDENT Coram: Sakala, CJ, Chirwa, Chibesakunda, Mambilima and Silomba, US on 10th February 2003 and 23 September 2003 I For the Appellant: For the 1st Respondent: Dr. J. Mulwila of Ituna Partners Hon. E. Silwamba of Eric Silwamba and Company, together with Mr. R. Mainza of Mainza and Company For the 2nd Respondent: Mr. J. Jalasi, Principal State Advocate Mr. M. Haimbe, Senior State Advocate JUDGMENT Chibesakunda, JS, delivered the Judgment of the Court Cases referred to:- 1. 2. 3. 4. 5. 6. 7. Akashambatwa Mbikusita Lewanika and Others v Fredrick Jacob Titus Chiluba SCZ Judgment No.14 of 1998 Lusaka vCheelo [1979] ZR 99 Mlewa v Whitghman [1995/1997] ZR 171 Nkhata and 4 Others v The Attorney General [1966] ZR 124 Zambia Revenue Authority v Independence Service Station SCZ 137/2000 British Airways v Andrews Safari Appeal No. 188/2000 Buchman v The Attorney General [1993/1994] ZR 131 8. 9. The Attorney General v Marcus Kampumba Achume [1993] ZR 1 Zambia Consolidated Copper Mines Limited v Matale [1995/1997] ZR 144 - J2 - Legislation referred to:- 1. The Electoral Act, Cap 13 (2)(b)(c) SS 18 (2)(b) of the Laws of Zambia 2. The Electoral (General) Regulations 13, Regulations 23, 29 (1)(2), Regulation 38, 40, 41, 23, 52 (b) 52 (a)(c) 3. Halsbury's Laws of England, 4,h Edition, Volume 15 at paragraph 699 4. Article 72 of the Constitution of the Zambia This appeal arises from an election petition filed by the Appellant in which he sought a declaration that the 1st Respondent was not duly elected or retained as member of Parliament for Lukulu West Constituency since the elections were marred by irregularities contrary to Section 18 (2)(b)(c), and Section 18 (4) of the Electoral Act (1), (herein referred to as the Act) and that the election should be declared null and void. The evidence before the High Court on which there was common ground was that towards the end of December 2001, Zambia held tripartite elections - Presidential, Parliamentary and Local Government. The 27th day of December 2001 was the Gazetted-voting day. On 31st December 2001 the returning officer declared the 1st Respondent as duly elected. It was also common ground that although the 27th of December 2001 was the Gazetted polling day, there were a number of polling stations which were open late for voting on 27th December 2001 and these same polling stations remained open allowing voters to vote on 28th, 29th, 30th and 31st December 2001. It was also common cause that at one or two of the polling stations, because voters' queues were long, the voting continued till late in the evening. Where there were no lights to facilitate the continued voting in the night, the voting was postponed to the following day. The other point on which there was common cause is that at the Mbangweta polling station, Isoka ballot papers were found. Most of the ballot papers were for Lukulu West Constituency. About eight (8) voters voted using these Isoka ballot papers. When it was subsequently discovered that they used these wrong J3 ballot papers the same voters were called back to vote again. At this same polling station, it was common cause that the Appellant got 107 votes as opposed to the 1st Respondent who had 34 votes. The Appellant's evidence on which there was dispute related to four (4) allegations namely; illegal practice of publishing a false statement, corrupt practice of impersonation, corrupt practice of undue influence, and non- compliance with the electoral Act. On publishing a false statement, the Appellant's evidence was that just before elections in December 2001, on the 9th of November 2001, in the print media, there was a publication of an article entitled, "Mpongwe, Lukulu reject candidate," which said, inter alia, that "in Lukulu West Constituency, Committee Chairperson Mary Lubinda, said in a joint statement signed by constituency officials that Mr. Kachaka's adoption was not welcome............. " The Appellant complained about this article testifying that it was a false statement and that he was prejudiced by its publication in that it suggested that he had been rejected as a candidate. The learned trial Judge held that since the article did not state that the Appellant had withdrawn from the race but that the article confirmed that the Appellant was very much a candidate in the coming election, the message was not to decampaign him. The article neither attacked the character of the Appellant nor did it attack his conduct. The learned trial Judge went on to hold that, even if it did, the Appellant adduced no evidence to show that that statement was meant to promote or procure the election of another candidate in preference to the Appellant. The learned trial Judge therefore concluded that there was no merit in this complaint, as Regulation 56 (1) (2) of the Electoral (General) Regulations was not breached. - J4 - On the corrupt practice of impersonation, the evidence, led by the Appellant was that at Mbangweta polling station eight unnamed voters voted using Isoka ballot papers which were erroneously found amongst the Mbangweta ballot papers. The learned trial Judge concluded that although the Isoka Local Government ballot papers were found amongst Mbagweta ballot papers, nonetheless the only possible violators of Regulations 52 (b) of the Electoral (General) Elections (2) were the eight unnamed voters who voted twice. He went on to agree with the Appellant that there was non-compliance with Regulation 29 (1) of the Elections (General) Rules (2) but further ruled that the eight unnamed voters who voted initially using Isoka ballot papers came back to revote after they were allowed to vote using now Mbangweta ballot papers. He concluded that there was no fraud. He also concluded that the Appellant was not disadvantaged by the inclusion of the Isoka papers although those papers should have been put in the rejected list. On the corrupt practice of undue influence, the evidence by PW7, PW8 and PW9 for the Appellant was that a Mr Mukambwa Mukata, RW2, an agent of the 1st Respondent, on the voting day, 27th December 2001, went with a shot gun to Sitwala polling station in the full view of the polling agents and monitors. He went near to the voters' queue and some voters were frightened. The evidence for the Respondent on the other hand was that they never saw Mr Mukambwa Mukata going to Sitwala polling station with a gun. Mr Mukata denied going to the polling station on 27th December 2001 with a gun but having a reed stick. The learned trial Judge chose to accept the evidence of - J5 - the Respondent. He rejected the evidence of the Appellant's witnesses, partially as according to him, they were witnesses with a possible interest. He referred to Halsbury's Laws of England (3) and quoted this passage:- "It is the undue influence on individual voters and not general rioting or violence which constitutes the corrupt practice. In order to constitute undue influence a threat must be serious and intended to influence the voter." Referring to the case of Lusaka vs Cheelo (4) he concluded that the behaviour of Mr. Mukata of going to the polling station holding a big stick did not constitute misconduct, or amount to make or threaten to make use of force to restrain others from voting. The learned trial Judge ruled that corrupt practice of undue influence as provided in Regulation 54 (2) had not been established. On non-compliance with the Electoral Act, the details of the allegations were dealt with polling station by polling station a) Mukuma Polling Station: The Appellant had complained that some voters had voted without presenting national registration cards to identify themselves. The Appellant had only mentioned one voter but it turned out from the 1st Respondent's exhibits and the evidence of RW1 and RW12 that in fact three voters were allowed to vote without presenting their national registration cards as they were well known to the Presiding Officers and Polling Agents. The learned trial Judge referred to Regulation 26(l)(c) (2) which is emphatic that national registration cards must be presented before a voter can be allowed to vote. - J6 - He acknowledged the distinction between the mandatory requirement of producing a national registration card when voting and the non-mandatory requirement of producing a voter's card if that voter can present RV 1 Form. According to him, Regulation 26(a) as amended by Statutory Instrument No. 85 of 2001 provide that if a voter loses or defaces a voter's card, all that voter can do is to produce RV 1 Form at the material time and she/he can vote. Therefore, a voter's card can be substituted and can actually be recovered if lost. He therefore held that there was no substitute for a voter in presenting a national registration card. The requirement to produce a national registration card was mandatory by law and as such the learned trial Judge concluded that Regulation 26(a) (2) was breached. However, he was of the view that that breach did not affect the results of the elections. b) Mbangweta Polling Station: The Appellant, as already stated, did complain about Isoka ballot papers which found their way in the Mbangweta polling station. The learned trial Judge held that there was a breach of Regulation 62(l)(c) (2). However, he concluded that such a breach did not disadvantage the Appellant. He also held that the eight unnamed voters did not assume the ✓ identity of anybody else nor did they represent some other voters. So he held that the electoral offence of impersonation had not been established since the intention to defraud had not been proved. On voting contrary to Section 6(2) of the Act, the learned trial Judge held that although the eight unnamed voters voted twice, Section 6(2) referred to a legal vote. He held that in this case, since the eight unnamed voters used the Isoka ballot papers that was an illegal vote. Section 6 (2) of the Act was not breached. - J7 - c) Kakunju Polling station: The complaint was that three MMD agents were allowed at the polling station contrary to Regulations 68. The learned trial Judge held that the presence of the three MMD agents was in line with the Regulations. d) Washishi Polling Station: The Appellant had complained that the voting had not taken place at this station due to incursions by the Angolan soldiers as that polling station was on the Zambian border with Angola. The learned trial Judge referred to the Appellant's own evidence which was that when he went to campaign at Washishi area people who attended his meetings complained to him about the security situation and even asked him to make representation to the Zambian government to deploy soldiers in order to improve security. The learned trial Judge held that he was satisfied that the situation at Washishi was not conducive to hold free and fair elections as the Angolan soldiers had vandalized the polling station. There was fighting going on in the area. He therefore accepted the Respondents' evidence that people around that area had fled to different parts of the Northwestern Province seeking refuge. He consequentially held that the situation as envisaged in Regulation 23(1) of the Electoral Regulations (2), did prevail to warrant postponing of all the elections altogether. e) Mataba Polling Station: The Appellant's complaint was that the ballot box at the polling station was brought unsealed to the Returning Officer. The learned trial Judge chose to accept the evidence of the Respondent that the boxes were sealed and that after the votes were counted, all the voting papers were put in one box and were taken to Matete for verification. He went on to hold J8 f) that Regulations 38, 40 and 41 of the Electoral (General) Elections Regulations (2) only apply to situations where the votes were centrally counted. On double voting and other allegations of non-compliance, the Respondents' evidence was that at Lupui, Kakunju, Muyondoti, Sitwala, Mbangweta and Kakwacha polling stations voting took place on days and times not gazetted nor supported by Statutory Instrument and as such there was double voting. The second allegation is that at Sikunduko polling station the ballot boxes remained at the polling station for three nights and two days contrary to Regulations 41 and Regulations 6 of the Electoral (General) Regulations (2). On allegation of double voting, the Appellant's evidence is that at Lupui polling station voting started from 27th to 28th December 2001. At Kakunju, Muyondoti, Sitwala, Mbangweta and Kakwacha polling stations the evidence for the Appellant was that the voting started late on 27th December 2001 and went on up to the 28th of December 2001. At Kakunju the learned trial Judge discountented PW1 and PW5's evidence and as such held that there was no evidence to support the allegation of the Appellant. At Muyondoti the learned trial Judge accepted the evidence of the Appellant that voting started on 27th December in the evening around 16.00 hours up to 19.10 hours and adjourned to the following day at 06.00 hours as there were no lights as the candles ran out. The learned trial Judge held that voting started late and was adjourned on account of darkness after the candles ran out. At Sitwala again voting started late around 17.00 hours until midnight. The elections were postponed. According to the Appellant votes were counted. The voting started from 06.00 hours in the morning to 17.00 hours. The learned trial Judge accepted that the elections started late and voting was postponed to the following day on account - J9 - to logistic problems. The learned trial Judge rejected the Appellant's evidence that votes were counted on 27th December before the resuming of voting on 28th December 2001. At Mbangweta polling station, the Appellant's evidence was that the voting started late. The ballot papers were delivered late so voting started on 28th December and went on up to 29th December 2001 and ended at 12.45 hours. The learned trial Judge accepted the evidence of the Appellant but ruled that late starting of voting was due to logistic problems and that the Appellant got 107 votes as compared to the 1st Respondent who had 34 votes. At Kakwacha polling station, again voting started late on 27th at 14.06 hours and ended at 21.06 hours. This was due to late arrival of ballot papers. The voting resumed on 28th December 2001 from 06.00 hours to 13.00 hours. Eighteen (18) people out of 90 registered voters voted on 27th December 2001. None of the voters voted on 28th December 2001. The Appellant got six votes and the 1st Respondent got one vote. The other candidates shared the other votes. At the conclusion and analyzing of this evidence, the learned trial Judge concluded that although there were these late voting and voting on days and times not gazetted nor supported by Statutory Instrument there was no double voting. He held that there was no evidence adduced before him by any voter who voted twice. He also held that as for Washishi polling station, the postponement of the election was not done on the grounds stipulated in Regulation 23(c) (2). The postponement was warranted. On the allegation that the ballot boxes remained at the Polling station at Sikunduko two days and three nights without a security officer, he accepted that. The Respondents' evidence was that there was a security officer at the station J10 and that that officer accompanied the ballot boxes to Matete for verification. He found no merit in the allegations. On the allegation that Eugine Akamandisa was not properly appointed as returning officer for Lukulu West Constituency, the learned trial Judge accepted the Respondent's testimony that the Regulation allow for a replacement of a gazetted officer in case of death, sickness or disciplinary reasons but he agreed with the Appellant that the replacement of the returning officer was not done in accordance with Regulation 4(l)(a) of the Electoral'Regulations. But applying the ratio decedendi in the case of Akashambatwa Mbikusita Lewanika and Others v Fredrick Jacob Titus Chiluba (3), the learned trial Judge held that notwithstanding non compliance with the provisions of the Act on this point by the 2nd Respondent did not disadvantage the Appellant. He therefore went on to hold that the elections were conducted in substantial conformity with the law and as such he dismissed the petition. He made strong observations on the ability or otherwise of the 2nd Respondent in conducting the elections and made recommendations that the Constitution should be amended to provide for definite dates for the holding of Presidential and General Elections to enable the 2nd Respondent to adequately prepare for such elections. He held that notwithstanding the evidence that some provisions of the Electoral Act were breached, the election was conducted substantially in accordance with the provisions of the Act, and that such acts or omission did not affect the results of the elections in Lukulu West Constituency. Now before us the memorandum of appeal contained eleven grounds of appeal. These were amplified and expounded on by the heads of argument. The Respondent also filed heads of argument in response. Both sides augmented their written submissions with oral submissions. Dr. Mulwila, in his Jll oral arguments, reduced these eleven grounds to two grounds of appeal. The two grounds are inter-related. They revolve around the interpretation of Section 18 (2)(b) read together with Section 18 (4) and Section 18(2)(c). The rest of the grounds of appeal, according to Dr. Mulwila, were either swallowed in these two grounds or abandoned. These two grounds of appeal are: 1. That the learned trial Judge erred when he held that although there were breaches of law in the conduct and management of these elections, these breaches, legal flaws and irregularities, did not affect the results of the ' elections in Lukulu West and that the elections were held substantially in conformity with the law. Dr. Mulwila elaborated on this argument by submitting that the lower court made a number of findings of fact, for instance:- a) That the postponement of elections at Washishi although justifiable resulted in disfranchising a number of voters at that station because of the war situation in Angola, which affected Washishi Poling Station. b) That there was unlawful removal of a gazetted returning officer and his replacement by the another; c) That there was briefing by the assistant returning officer to the presiding officers that they could allow registered voters to vote without national registration cards; d) That Mr. Mukata on 27th December 2001 went to Sitwala polling station wielding a stick (not a gun); e) That there was keeping of ballot boxes in polling stations without security personnel for more than two days and the returning officer filed in ballot papers accounts on behalf of the presiding officers; J12 f) That there was evidence of unsealed ballot boxes being delivered to the verification centre; and g) That there was evidence that ballot papers arrived late thus forcing the voters to start voting and go on voting for more than one day. According to him, the Lukulu West elections make very sad reading in that all these findings are on record. How can the court after making all these findings conclude that these elections were conducted substantially in conformity with the Electoral Act? He went on to argue that although it is not expected that elections can be conducted with a hundred per cent compliance with the regulations and laws governing the election, since there were too many breaches as cataloged in the findings of the court below, the court should have logically held that the elections were not conducted substantially in conformity with the law. He submitted that with such findings of fact the court below erred in concluding that the elections were conducted substantially in accordance with the law. His findings were therefore not supported by evidence on record. This is point of law and as such Article 72 of the Constitution was not applicable. The second limb of his argument is that all the examples which he had tabulated before us as breaches of the election rules and regulations establish that Section 18 (2)(b) was breached as these breaches showed non-compliance with the law relating to the conduct of the election. He argued that these breaches should have satisfied the lower court that the elections were not conducted in accordance with the law. He elaborated on this argument by stating that isolated breaches of the law or non-compliance would not affect the results of the elections. But rampant breaches and irregularities as these ones certainly affected the J13 results of the elections. He therefore urged this court to hold the lower misdirected itself in concluding that the breaches and regulations established in these elections did not affect the election results. 2. Since the court found as fact that Mr. Mukata, an agent of the 1st Respondent, went to Sitwala polling station and was allowed within a distance of 100 metres of Sitwala polling station brandishing a gun/stick, it was immaterial whether or not Mr. Mukata had a stick or gun. The court below should have held that the mere fact that he had something which would pose as a threat or which would seem to intimidate other voters was sufficient to be in breach of Section 18(2)(c) of the Electoral Act. He argued that as this court held in this case Mlewa v Whightman, (3) it is immaterial under Section 18 (2) (c) of the Electoral Act (1) whether or not this irregular practice was committed with the knowledge or consent or approval of the 1st Respondent. It is sufficient if it is established, which was established in this case, that this Mr Mukata came to the polling station with a weapon which frightened or would have frightened would be voters. He referred to the evidence that some voters left when they saw Mr Mukata with this stick and argued that the learned trial Judge should have concluded, that there was a breach of Section 25(2)(c) of the Electoral Act (1). He further stated that according to Lusaka v Cheelo (6) case, the proof of one of these grounds in Section 18 of the electoral Act is sufficient to nullify an election. He referred to page 177 in the Mlewa case, which he quoted. (We will be referring to the quotation in our Judgment later). J14 He emphasized that it is not necessary that a candidate should be personally involved in the wrongdoing for the elections to be nullified in terms of Section 18 (2)(c). Hon. Silwamba, representing the 1st Respondent in response firstly challenged the jurisdiction of this court in this appeal. He cited Article 72 of the Constitution (4) and argued that this court lacked jurisdiction in this appeal as the grounds of appeal were anchored on the findings of fact by the learned trial Judge. Alternatively, citing the cases of Nkhata and 4 Others v the Attorney General (7), Zambia Revenue Authority v Independent Services Station (6) and British Airways v Andrew Travel Safari Limited (8) he argued forcefully that the findings by the learned trial Judge that the elections were conducted substantially in accordance with the law, was a finding based on findings of fact and as such this court has no jurisdiction. He went on to argue that this court can only reverse such findings of fact if it can be demonstrated that: a) the learned trial Judge erred in accepting the evidence; b) the learned trial Judge erred in assessing and evaluating the evidence by taking into account some omission which he should have ignored or failing to take into account something which he should have considered; c) the learned trial Judge did not take proper advantage of having seen and having heard witnesses; d) the external evidence demonstrated that the learned trail Judge erred in assessing the manner and demeanor of witnesses. Referring to the Mlewa v Whightma (3) case which he said was sound law, he argued that this court can depart from its own previous decisions where J16 Constituency were conducted substantially in compliance with the law. He pointed out to us that out of the 32 polling districts only six (6) polling districts had some logistic problems and these are the polling stations, which are subject of this petition. The two grounds argued by Dr. Muliwla are inter-related. We will deal with them as we deal with the central issue, which is whether or not the appeal is properly before us. Article 72 of the Constitution clearly proscribes against election appeals lying to this court on findings of fact by the High Court. Article 72 of the Constitution says:- "(1) The High Court shall have power to hear and determine any question whether — (a) any per son has been validly elected or nominated as a member of the National Assembly or the seat of any member has become vacant; (b) any person has been validly elected as Speaker or Deputy Speaker of the National Assembly or, having been so elected, has vacated the office of Speaker or Deputy Speaker; (2) An appeal from the determination of the High Court under this Article shall lie to the Supreme Court: Provided that an appeal shall lie to the Supreme Court from any determination of the High Court on any question of law including the interpretation of this Constitution. Hon. Silwamba and Mr Mainza have argued that the learned trial Judge made a finding that the elections were conducted substantially in conformity with the law basing on his findings of fact. Dr. Mulwila has argued that the learned J15 such decisions are per incuriam. He drew a distinction between the Mlewa v Whightman (3) case and the case before us. He argued that in the Mlewa v Whightman (3) case the decision was based on the interpretation of Section 18(2)(a) whereas the case before us the decision has to be on the applicability of Section 18(2)(b) as read with Section 18(4). He went on to argue that the 1st Respondent was only affected by Section 18(2)(b) whereas Section 18 (2)(c) related to the 2nd Respondent. According to him, the 1st Respondent intended to seek refuge in Section 18(2)(c) and not Section 18(2)(a). Mr Mainza, the other learned counsel for the 1st and 2nd Respondents, in fortifying Hon. Silwamba's argument, argued that the learned trial Judge correctly held that the management and conduct of elections was substantially in conformity with the Electoral laws and Regulations. He went into details as to what the learned trial Judge decided on each poling station, such as Kakunju, Sikukunduko, Mbangweta, Namakando, and Kakwacha. He argued that the learned trial Judge accepted that the voting started late, the fact, which was common ground, because of the logistic problems. The learned Judge therefore accepted that voting had to continue and this was done in consultation with the other stakeholders. Mr Jalasi, in augmenting the arguments by the two learned counsel, argued that at Washishi the learned trial Judge was on firm ground to have accepted that although the postponement of elections amounted to disfranchising a number of voters at this polling station, the postponement was justifiable and that that postponement affected all the candidates not just the Appellant. Mr Haimbe in support of the three learned counsels argued that the learned trial Judge was correct to have concluded that the elections in Lukulu West J17 trial Judge in analyzing the findings should have considered the applicability of Section 18 (2)(b) as read with Section 18 (4) and 2(c). Dr. Mulwila's argument revolve around the interpretation of Section 18(2)(b) as read together with Section 18(4) and Section 18(2)(c) of the Electoral Act. Section 18(2)(b)(c) and 4read as follows:- "(2) The election of a candidate as a member of the National Assembly shall be void on any of the following grounds which is proved to the satisfaction of the High Court upon the trial of an election petition, that is to say - (b) subject to the provisions of subsection (4), that there has been a non-compliance with the provisions of this Act relating to the conduct of elections, and it appears to the High Court that the election was not conducted in accordance with the principles laid down in such provisions and that such non-compliance affected the result of the election (our own emphasis); (c) that any corrupt practice or illegal practices were committed in connection with the election by or with the knowledge and consent or approval of the candidate or of his election agent or of his polling agents Cour own emphasis); Section 18 (4) reads: (4) No election shall be declared void by reason of any act or omission by an election officer in breach of his official duty in connection with an election if it appears to the High Court that the election was so conducted as to be substantially in accordance with the provisions of this Act, and that such act or omission did not affect the result of that election." Section 18(2) in our view sets out four clear grounds upon on which any election of a candidate to the National Assembly can be nullified if each is independently established to the satisfaction of the High Court — Lusaka v Cheelo (6). J18 According to the Lusaka case, nullification can be ordered even when an agent is one who is held blame worthy personally and not the candidate. It is incumbent in Section 18(2)(b) of the Electoral Act upon the petitioner to establish to the satisfaction of the court that there has been non-compliance with the provisions of the Electoral Act, in conducting the elections. The petitioner also has to prove, using higher standard of proof than the balance of probabilities, to the High Court that the elections were not conducted in accordance with the principles laid down in the Electoral Act and that such non- compliance affected the results of the election. Dr. Mulvvila has argued that because of all these breaches which he tabulated, which the learned trial Judge found as facts, the learned trial Judge's conclusion that the elections were held substantially in conformity with the electoral law was, unsupportable by the evidence on record. We have looked at the learned trial Judge's reasoning. The learned trial Judge went into details on each allegation. We are satisfied that at pages J2 - J6 of this Judgment, the learned trial Judge comes out as having assessed the evidence of the Appellant, the evidence of the Respondents and chose to accept the evidence of the Respondents. For example, on the first allegation of illegal practices of publishing false statement - although he accepted that there was such a publication he nonetheless concluded that the article in question neither attacked the character of the Appellant nor did it attack his conduct. He therefore dismissed the allegation. On the second allegation of corrupt practices of impersonation - although he accepted that there was a breach of Article 29, he nonetheless ruled that Article 52 was only violated by the eight unnamed voters and that that did not disadvantage the Appellant in his chance of being elected as a successful J19 candidate. He went on to hold that since the eight unnamed voters used Isoka ballot papers when they voted initially, and then used the right ballot papers when they voted once again, they did this with the consent of all the stakeholders. There was no fraud. On the allegation of undue influence - he partially accepted the evidence of the Appellant that Mr. Mukata went to Sitwala polling station holding a stick in full view of the polling agents. He, however, concluded that there was no evidence that Mr. Mukata intimidated would be voters and therefore concluded on facts that the corrupt practices of undue influence had not been established. We can go allegation by allegation but what is important is that the record shows that the learned trial Judge on the evidence before him was not satisfied that the Appellant had established irregularities or legal flaws, which would have eroded fair process of the elections. Dr. Mulwila has argued that there were too many breaches of electoral laws to bring into play Section 18(2)(b), read together with Section 18(4). Clearly Section 18(2)(b) deals with non-compliance with the provisions of the Act which relates to the conduct of the election. But as already stated in our Judgment Section 18(2)(b) can only come into play if the court also is satisfied that such breaches of the Act amounted to conduct which is not in accordance with the principles laid down in the Act and that such non compliance affected the results of the elections. The learned trial Judge in this case concluded that there were no such breaches. Where he agreed that there were breaches as in Sitwala, Mukuma and Mbangweta polling stations he ruled'that such breaches did not affect the results of the elections. Dr. Mulwila has argued that Section 18(4) should have applied. Section 18(4) provides that even if it was established that there was non compliance with the provisions of the Act as provided in Section 18(2)(b), if it is J20 established that such noncompliance or omission to comply was done by an election officer in breach of his official duty in connection with the election, results of the elections would not be nullified if again it is established to the High Court's satisfaction that, inspite of such breaches, the elections were conducted substantially in accordance with the provisions of the Act and that such acts or omissions did not affect the results of the election. As already stated in this particular election, the learned trial Judge concluded that the allegation of unsealed ballot boxes, the allegation of voting on ungazetted days, the allegation of disfranchising voters at Washishi polling station because of the war in Angola . and the allegation of an illegal removal of a gazetted officer and his replacement by another, that all these did not affect the results of the elections because it affected all candidates in the election. So Section 18(2)(b) and Section 18(4) were not applicable. So it is our view that these findings were based on findings of fact and as such this court lacks jurisdiction to deal with such grounds of appeal. Coming to the applicability of Section 18(2)(c), this sub section deals with establishing to the satisfaction of the High Court that corrupt practices or irregular practices were committed in the elections by an agent of a candidate or a polling agent. As Dr. Mulwila rightly pointed out this offence is committed if it is established by way of evidence to the High Court's satisfaction that Electoral offence was committed with or without the knowledge or consent or approval of the candidate. Dr. Mulwila argued that the mere fact that Mr. Mukata, an agent of the 1st Respondent, came to Sitwala polling station welding a stick was sufficient to bring into play Section 18(2)(c). He referred to the passage at page 177 in the Mlewa case which says, ""In contrast para (c) penalizes the candidate. Even one or two proven instances are enough and even if J21 they could not conceivably have prevented the electorate from choosing their preferred candidate." Hon. Silwamba's argument was that the Mlewa case was decided on the applicability of Section 18(2)(a) and not Section 18(2)(c). The Respondents also have tried to distinguish the Mlewa case to the case before us by arguing that what actually influenced the court in the Mlewa case was the scale of violence which obviously adversely affected the results of the election unlike the case before us where there was only one incident. Firstly, although the Mlewa case was partially decided on the applicability of Section 18(2)(a) it was equally decided on the applicability of Section 18(2)(c), and the paragraph already quoted above was used in that context. Secondly we take note of the approach in the Mlewa case by this court as reflected in the quoted passage that even one or two proven instances of corrupt practices or irregular practices if such incidents are established using the higher standard of proof as was held in the Akashambatwa Mbikusita Lewanika and Others v Fredrick Jacob Titus Chiluba (5) case, "even if they could not conceivably have prevented the electorate from choosing their preferred candidate," can cause the election be nullified on that ground. In other words, using the Mlewa case approach the scale of violence does not come in. However the learned trial Judge in this case accepted that the 1st Respondent's agent Mr. Mukata, came to Sitwala polling station on 27th December 2001, wielding a stick. He, however, rejected the Appellant's evidence that that stick intimidated or threatened to intimidate would be voters because according to him there was no evidence brought to court as to who was actually intimidated. He even rejected the evidence by the Appellant that some voters left the polling station because of Mr Mukata's conduct. This was a question on credibility and the trial court was entitled to choose which side of the story to accept. He, therefore, concluded that Mr. Mukata's behaviour did not amount to irregular practices or corrupt - J 22 - practices under Section 18(2)(c). We cannot fault the lower court's findings on that point. Finally it is prudent for this court to take into account Mr. Haimbe's point which he canvassed, namely that out of 32 polling stations, the Appellant's complaint of irregularities and legal flaws was limited to only six (6) polling stations. Even these alleged legal flaws and irregularities were not established on a • higher standard of proof as was said in the Akashambatwa Mbikusita Lewanika and Others v Fredrick Jacob Titus Chiluba (5) case. We therefore entirely endorse the lower court's view that the Lukulu West Constituency elections were conducted substantially in conformity with the law. We, therefore find no merit in the appeal. We consequently declare Simasiku Namakando 1st Respondent as dully elected member of Parliament for Lukulu West Constituency. We order that costs follow the event E. L. SA KA LA CHIEF JUSTICE D. K. CHIRWA SUPREME COURT JUDGE L. P. CHIBESAKUNDA SUPREME COURT JUDGE I. C. MAMBILIMA SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURTJUDGE i Ii |