Webster Chipili v Nyirenda (Appeal 35 of 2003) [2003] ZMSC 154 (23 December 2003)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 35 OF 2003 IN THE MATTER OF: Section 18 (2) & (4) of the Electoral Act, Cap. 13 of the Laws of Zambia AND IN THE MATTER OF: Parliamentary Elections for the Kamfinsa Constituency in the Copperbelt Province of Zambia held on the 27th December, 2001 BETWEEN: WEBSTER CHIPILI APPELLANT AND DAVID NYIRENDA RESPONDENT CORAM: SAKALA, C. J., LEWANIKA, D. C. J., CHIRWA, MAMBILIMA AND SILOMBA, J. J. S. On the 30th April, 25th June and 23rd December, 2003 For the Appellant: Mr. W. Nyirenda, of Ezugha Musonda and Co. and Mr. E. Silwamba, For the Respondent: Mr. V. Malambo, of Malambo and Co. of Eric Silwamba and Co. JUDGMENT SILOMBA, J. S., delivered the Judgment of the Court. Cases referred to: (1) R, Vs, Rowe, ex parte Mainwaring (1992), 4 AER, 821. (2) Akashambatwa M. Lewanika Vs. F. J. T. Chiluba, SCZ Judgment No. 14 of 1998. (3) Michael Mabenga Vs. Sikota Wina & Others SCZ Judgment No. 15 of 2003. (4) Nkata & Others Vs. The Attorney General (1966) ZR. 124 Legislation referred to: Constitution of Zambia Act, Art. 72. Electoral Act, Cap 13, Section 18 (2) (a), (b) and (4) Electoral (General) Regulations Nos. 21 (1), 22 (1), 51 and 53 J2 This appeal is before us at the instance of Mr. Webster Chipili, the appellant. He is appealing against the decision to declare his election to the National Assembly void as decreed by the learned trial Judge of the High Court, sitting at Kitwe, in his judgment of the 20th day of December, 2002. After the tripartite elections of the 27th December, 2001, the respondent, Mr. David Nyirenda, challenged the election of the appellant to the National Assembly by filing an election petition on the 28th of January, 2002, pursuant to the provisions of Article 72 (2) of the Constitution of Zambia and Part VI of the Electoral Act, Chapter 13 of the Laws. In the subsequent amended election petition filed on the 14th of June, 2002, the respondent stated, among other things, that he stood on the ticket of the Zambia Republican Party (Z. R. P.) while the appellant was a candidate on the ticket of the Movement for Multi-party Democracy (M. M. D.). In the main, the petition alleged that with a view to influencing the electorate, the MMD, prior to the election, started distributing subsidized mealie meal and maize grain, other foods and materials in the Kamfinsa constituency; that the sale of cheap mealie meal and the distribution of maize grain was restricted to members of the public who were perceived to support the candidature of the appellant. The petition also alleged that while voting time was extended at Kanona polling station, voters at other polling stations were not allowed to vote after 17.00 hours, even though they had lined up long before the stipulated closing time. Further, that on polling day, Chipangali and Kamainsa polling stations were moved from their duly gazetted areas of Chipangali tavern and Fibusa grocery respectively to an ungazetted area known as Weka community center (Mulenga Community School). The respondent ended up his petition with a prayer that it may be determined that the appellant was not duly elected or returned. By an amended answer to the amended petition filed on the 13th of May, 2003, the appellant denied, inter-alia, that he or his agents, prior to the elections, distributed subsidized mealie meal and maize grain, other foods and materials in the constituency contrary to the Electoral Act and Regulations made there-under. With regard to the allegation that voting time was extended at Kanona polling station and not at other polling stations, the answer stated that since the function to extend voting time was J3 vested in the Electoral Commission of Zambia (abbreviated ECZ), the appellant had no control over the voting time. The answer acknowledged the fact that Chipangali and Kamainsa polling stations were moved from their gazetted locations but denied that, that was a function of the appellant. The answer, nonetheless, came out in full support of the decision of the ECZ to change the venue of Chipangali and Kamainsa polling stations as the decision was made in the best interests of the electoral process. By reason of the responses given in the answer the appellant averred that the respondent was not entitled to the reliefs sought and prayed the lower court to dismiss the petition with costs. At the trial of the petition, seven witnesses testified for each side. With regard to the allegation relating to maize grain and maize meal distribution, the respondent, as petitioner, told the lower court that the appellant, by his agents, had distributed subsidized mealie meal and maize grain to voters in the Kamfinsa Constituency with a view to influencing them to vote for him. In response, the appellant denied the allegation and stated that neither he nor his agents were engaged in any distribution of maize or any foodstuff. After due consideration of the evidence before him, the learned trial judge found that the subsidized mealie meal was being distributed during the month of December, 2001, prior to the elections and consequently, it was his finding that the electorate must have been influenced by the distribution of cheap maize meal to vote for the appellant. On the question of polling and closing times for the Kamfinsa Parliamentary elections, the lower court heard evidence from the respondent’s witnesses that voting at some polling stations closed late while at others voting closed at 17.00 hours, whereby some voters were turned away. The evidence from the appellant’s witnesses was that no polling stations closed at 17.00 hours but the learned judge did not believe them. In the final analysis, the learned judge found that there was no uniform time for the closing of the polls. On the shifting of Chipangali and Kamainsa polling stations from Chipangali tavem and Fibusa grocery respectively to Weka community center, the learned trial judge heard evidence from the appellant’s witnesses that the changes were effected in consideration of the exigencies of the situation obtaining on the ground; that the changes J4 were well published through the local radio station and through posters but the learned judge found that there was no publicity and that the Director of Elections had not sanctioned the change. In the light of the finding, the learned judge was of the opinion that “the shifting of the polling stations and the unclear times of closing the polling stations after the voting time was allegedly extended greatly affected a considerable number of voters.” On the basis of SectionlS (2) (b) of the Electoral Act, he proceeded to declare the election of the appellant void and the ordering of a fresh poll, hence this appeal. There are five grounds of appeal that have been advanced by the appellant and in support thereof Messrs William Nyirenda and Eric Silwamba, the learned advocates of the appellant, have filed separate heads of argument, which were supplemented by oral submissions of the two advocates. The first ground to be argued by Mr. Nyirenda was ground five. This ground was followed by grounds one, two and four, which were argued together, while ground three was argued last and separately. Ground five is couched in the following words: - That the learned High Court Judge misdirected himself in law and in fact in holding that the respondent bore the onus of proving his case on a balance of probabilities to the satisfaction of the court when the standard of proof in electoral matters is ‘beyond reasonable doubt/ The gist of the submission of the two advocates was that the learned trial judge was in error when he said, at page 11 of the record of appeal, Vol. 1, that “the petitioner (now respondent) bears the onus of proving his case on a balance of probabilities to the satisfaction of ths court.” It was argued that the wrong standard the learned judge had invoked was capable of making the entire appeal succeed on ground five alone. They submitted that the allegations before the lower court pointed to the malpractices allegedly committed by the appellant, which bordered on criminality in terms of Regulations 55 and 61 of the Electoral (General) Regulations and punishable, on conviction, by a fine or to a term of imprisonment. J5 To that extent, it was submitted by Mr. Nyirenda that the required standard of proof was the criminal standard of ‘beyond reasonable doubt.’ He fortified his argument with an English case of R Vs. Rowe, ex parte Mainwaring (1). Contrary to the written heads of argument of Mr. Silwamba, Mr. Nyirenda criticized the standard of proof set by this court in the case of Akasambatwa M, Lewanika Vs. Fredrick J. T, Chiluba (2) (also known as ‘the Aka case’) in which we said that allegations of impropriety attributable to a respondent in a parliamentary election petition before a High Court Judge required to be proved to a standard higher than a mere balance of probability. In response to the arguments and submissions on ground five, the respondent’s learned counsel, Mr. Vincent Malambo, S. C., agreed with the standard of proof enunciated in the Akashambatwa case in respect of electoral offences that can also attract criminal proceedings. He did not agree with the other arm of the argument that because the allegations before the lower court were of a criminal nature the required proof should have been ‘beyond reasonable doubt.’ Mr. Malambo said that although the learned trial judge made his ritualistic approach of the standard of proof at page 11 of the record of appeal, he was alive to the standard of proof in election petitions; that on the basis of the overwhelming evidence adduced in the court below the learned judge would have come to the same findings or conclusions had he applied a higher standard than on a balance of probability. Mr. Malambo conceded that it was a misdirection for the lower court to refer to the onus of proof as being on a balance of probability but he was quick to add that since an appeal operates as a re-hearing on the record this court can correct the learned judge without upsetting the conclusion. We have duly considered the arguments and oral submissions for and against ground five and at the end of the day our view is that there is nothing in controversy, notwithstanding Mr. Nyirenda’s contrary view. This was an election petition in which some electoral malpractices were alleged and in relation to the standard of proof in this jurisdiction, the case of Akashambatwa M. Lewanika Vs. F. J. T Chiluba (2) puts the issue beyond debate. After this celebrated case, we have consistently re-stated the standard of proof in the matter of election petitions, which are essentially civil matters, in a number of our J6 decisions and in the recent case of Michael Mabenga Vs. Sikota Wina and Others (3), this is what we said in keeping with the spirit in the Aka case: - An election petition is like any civil claim that depends on the pleadings and the burden of proof is on the challenger to that election to prove to a standard higher than on a balance of probability; issues raised are required to be established to a fairly high degree of convincing clarity. Mr. Malambo has argued, very strongly, that in the face of the overwhelming evidence before the lower court, the learned trial judge would have ended up with the same findings if he had applied the proper standard; that since an appeal operates as a re­ hearing on the record this court can, in keeping with tradition, correct the learned judge on the standard of proof without upsetting the conclusion. This earnest appeal will be kept in mind as we look at the rest of the grounds of appeal. In the same breath, we do not think that ground five should be treated as ‘a preliminary point of law’ so as to entitle us to allow the appeal on this ground alone. We strongly feel that the standard of proof we have re-stated in this ground should, if necessary, be related to the rest of the grounds of appeal. We now move to deal with grounds one, two and four as one. It must be noted that these grounds were argued differently by the three advocates but in our judgment we shall adopt the format of Mr. Nyirenda because we agree with him that these can be argued as one. The grounds read as follows:- 1. The learned High Court Judge misdirected himself in law and in fact in finding that the elections in Kamfinsa parliamentary constituency were not conducted in accordance with the laid electoral rules. 2. The learned High Court Judge misdirected himself in law and in fact in holding that the appellant was guilty of contravening the provisions of the Electoral Act, including Section 18 (2)(a). 4. That the learned High Court Judge misdirected himself in law and in fact in holding that the closing times of voting violated the Electoral Regulations. J7 Mr. Nyirenda submitted that the above three grounds of appeal were relevant to the conduct of the election by the ECZ and its officers. With regard to ground one we were referred to page 31, line 3, volume 1, of the record of appeal where the learned trial Judge bemoaned the shifting of polling stations and the unclear times of closing polling stations, which in his view greatly affected a considerable number of voters. Reacting to this finding, counsel submitted that the management of polling stations and closing times was vested in the ECZ and that the appellant, who was equally affected, had no hand in it. In reference to ground two, Mr. Nyirenda stated that with an impressive turn out of voters at 68.44% of the total registered number of voters in the constituency, the learned Judge could not fault the election and nullify it. He said that under Section 18 (2) (b) of the Electoral Act an election cannot be nullified on the basis of an omission of the ECZ unless such an omission has substantially affected the result of the election (per Section 18 (4) of the same Act). Coming to ground 4, counsel referred us to page 515 where RW7, the electoral officer for Kitwe district, testified that the closing time of each polling station depended on the number of voters wishing to vote. He also referred us to page 357, line 9, volume 2, of the record where PW4 testified, in cross-examination, that because there were many people wanting to vote at Weka Community Center, the polling station could not be closed by 17.00 hours. We were further referred to the evidence of PW5, in cross-examination, found at pages 392 to 393, volume two of the record, which confirms that by 22.00 hours the queue of people wanting to vote at Chipangali was getting longer and longer. It was submitted that the poll closed during the early hours of the 28th December, 2001, by which time 710 voters for Kamainsa and 668 for Chipangali had voted. According to counsel, the high voter turn out was achieved despite the fact that the old polling stations at Chipangali tavern and Fibusa grocery had been moved to the new polling station at Weka Community Center. In dealing with grounds 1 and 2, Mr. Silwamba, co-counsel for the appellant, apart from adopting Mr. Nyirenda’s submission, restricted himself to the issue of pleadings as outlined in the petition, including the amended petition. In his oral submission, Mr. Silwamba relied on his written heads of argument and the several J8 authorities he had cited. In his written submission, he has argued that the petition in the court below was presented in an omnibus, vague and global manner as it did not clearly and in specific terms state the provisions of the law upon which the petition was presented. In response to Mr. Silwamba’s submission on pleadings, Mr. Malambo briefly submitted that the petition conformed to the Electoral Rules and that there were no allegations that the appellant did not understand the petition. As far as the State counsel was concerned, the appellant effectively answered the petition and in no way was he embarrassed or prejudiced. And dealing with the issues raised by Mr. Nyirenda under grounds 1, 2 and 4, the State Counsel submitted that the lower court made findings of fact based on the credibility of the witnesses before it. For example, on the basis of the evidence, the learned judge found there was no substantial compliance with the electoral rules; that there were different closing times, resulting in voters being turned away at 17.00 hours at some polling stations while at others voters were allowed to vote beyond the official closing time of 17.00 hours. The State counsel submitted that even though RW7, the electoral officer, had given instructions to all constituencies in Kitwe that voting hours had been extended the instructions had not been uniformally disseminated. Further, that Chipangali and Kamainsa polling stations were respectively shifted from Chipangali tavern and Fibusa grocery to Weka Community Center without publicity by RW7 resulting in RW4, a police officer detailed to provide security to the two polling stations, not knowing where to go for a good one hour. Similarly, that PW7 went to Chipangali tavern twice but did not vote because Chipangali polling station had been shifted. On whether or not Section 18 (2) (b) of the Electoral Act was breached, in view of the foregoing observations, the State Counsel agreed with the findings of the learned judge that there was non-compliance with the law, whereby the lower court was entitled to nullify the election. From the evidence on record of RW6 (returning officer) relating to voter turn out, Mr. Malambo thought that if the 6,000 voters had not been disenfranchised there would have been no guarantee that the appellant would have emerged the winner. J9 He came to this conclusion because the appellant was ahead of the runner-up by a few votes. We have given our very careful consideration to these very exciting and illuminating submissions from counsel representing both parties. Before we go into the issues raised in relation to grounds 1, 2 and 4, we would like to say something about pleadings as alluded to by Mr. Silwamba. We do not think that the petition, as presented in the court below, was not clear on the allegations the appellant was required to address his mind to. On the contrary, the appellant answered all the allegations as truthfully as he could and when it came to trial it is on record that he objected to evidence on Kakolo* polling station because it was not pleaded and the learned judge sustained the objection. We are in agreement with Mr. Malambo that it was not necessary to quote the law in an election petition in relation to each and every allegation. In any case, it is quite clear to us that the issue of pleadings was never an issue at all in the court below. This now brings us to grounds 1, 2 and 4. As rightly pointed out by Mr. Nyirenda, for the appellant, all the three grounds relate to the conduct of the election by the ECZ and its satellite organs. After an evaluation of the grounds, the impression we have so far is that they are inter-related and in order to have a proper flow of our thoughts and ideas we have decided to begin with grounds 1 and 4 and then end up with ground 2. Going by the record of appeal, the evidence of the respondent relevant to the two grounds is mostly from PW3 PW4, PW5, PW7 and RW4 while that of the appellant is mostly from RW6 and RW7. In relation to the closing time of the poll the learned Judge, after evaluating the evidence of PW3, PW4, PW5, RW6 and RW7, came to the conclusion that there was no uniform time for the closing of the poll in Kamfinsa constituency. We agree with him on this finding of fact in view of the evidence on record. At Chipangali and Kamainsa polling stations, located at Weka Community center, the poll closed after midnight as per the evidence of PW5 and RW1. Generally, the evidence of RW7, the electoral officer for Kitwe district, was that there were differences in closing times (see page 515, volume 2). However, at page 28, volume 1, of the record the learned Judge singles out Kakolo, Ndeke clinic and Ndeke secondary school as polling stations where voting J10 closed at 17. 00 hours, with the consequence that some voters were turned away and, therefore, denied the chance to cast their votes. This finding was supported by the evidence of PW5 who said at page 387, volume 2, of the record that at Chisokone and Musolo polling stations, located at Ndeke High School and Muchinga and Ndeke polling stations, located at Ndeke Clinic, voting closed at 17.00 hours, resulting in voters being turned away. We are surprised by the inclusion of Kakolo polling station as being one of the stations where voting is said to have ended at 17.00 hours. We say so because the evidence of PW3, which the learned trial judge had evaluated, speaks of the poll closing at 18.00 hours there (see page 336, volume 2). We are further surprised that in arriving at the conclusion that polling closed at 17.00 hours at Kakolo, Ndeke Secondary School and Ndeke Clinic, the learned judge could not believe the evidence of RW6, returning officer for Kamfinsa Constituency and RW7, the electoral officer for Kitwe district under which Kamfinsa constituency fell. He believed the evidence of PW5 who was never turned away due to the closing of the polling station at 17.00 hours. In their evidence, both RW6 and RW7 testified that no polling station closed at 17. 00 hours. The learned judge chose not to believe them because they were not physically at all the polling stations to witness the closing times. Besides, they did not produce any written reports. We would like to comment on the evidence of RW7 because of his privileged position as the electoral officer, as well as, Town Clerk of Kitwe. His evidence was that he had organized several elections in the past very successfully but he singled out the December, 2001 elections as having ushered in an extremely slow voting process. According to RW7, the slow voting process was generated by the fact that each voter, once inside the polling station, was required to vote for one candidate in the presidential, parliamentary and local government elections on three separate occasions. This phenomenon resulted in long queues at every polling station so much so that by 16. 30 hours on 27th December, 2001 the ECZ directed him to ensure that everyone in the queue voted. The directive to extend voting hours was received from the ECZ via the provincial local government officer in Ndola by phone. Jll His evidence was that as soon as he got the directive he contacted all returning officers and presiding officers not to close the polling stations until everyone on the line had voted. He was able to contact his officers in the field through the use of the cell­ phone, which every officer in the field had. This is the kind of evidence that the learned trial judge subordinated to the evidence of PW5. In our view, the evidence of RW6 and RW7 is overwhelmingly in support of the view that no polling station closed at 17.00 hours since they are the ones who were involved in the management of the election in Kamfinsa constituency. As for RW7, his evidence in cross-examination remained steadfast as Mr. Chali, then acting for the petitioner (now respondent) in the court below, posed questions one after the other. As for RW6, he was very much in touch with the presiding officers who made returns to him on the election results for each polling station and we can only assume that he knew what he was talking about when he said that no polling station closed at 17.00 hours. If it was necessary for the returning officer to produce returns of results from the presiding officers to show the times for the closing of the poll at each polling station the learned judge was at liberty to make an appropriate order to that effect but he did not do so. The law on the opening and closing of the poll can be found in Regulation 22 (1) of the Electoral (General) Regulations, which reads as follows: - The poll shall commence and, subject to Regulation 23, shall close at such time as the Commission shall appoint, and notice of such times shall be published in the gazette and in such other manner as the Director of Elections may direct. In the language of Regulation 22 (1), the ECZ had two ways of publishing the extension of the closing time of the poll in Kitwe district on that date. The first one was by gazette notice but in view of the limited time left before 17.00 hours it was not practicable for the gazette to issue and publish the extension of voting time for the benefit of those who had not voted. The second and most effective option available to the ECZ was to effect the extension “in such other manner as the Director of Elections may direct.” The evidence on record shows that the extension was published by telephone to J12 the electoral officer and by cell-phone to the returning officers and presiding officers not to close the poll until everyone in the line had voted. With these observations, we can confidently say that the learned trial judge was not justified in holding that the elections in Kamfinsa constituency were not conducted in accordance with the electoral rules or regulations. In the case of Nkata and 4 Others Vs. The Attorney General (4) and in several other subsequent cases, we have said that this court can only disturb a finding of fact by a trial court where, among other factors, the learned trial judge (1) has erred in assessing or evaluating the evidence by taking into account some matter which he should have ignored or failing to take into account something which he should have considered and (2) has not taken proper advantage of having seen and heard the witnesses. Accordingly, in the exercise of our appellate jurisdiction, we find the conclusion “that voting at Kakolo, Ndeke Clinic and Ndeke Secondary School closed at or about 17. 00 hours and that some voters were denied the chance to cast their votes” to be erroneous and unsupported by the evidence on record. There were no voters, from those polling stations, who testified that they could not vote because they were turned away at or about 17. 00 hours. In our view, the correct finding should have been that there was no violation of the electoral rules or regulations; that no polling station closed at or about 17.00 hours and that no voter was turned away and denied the right to vote. On the transfer of Chipangali and Kamainsa polling stations respectively from Chipangali tavern and Fibusa grocery to Weka Community Center, the learned trial judge had this to say: The shifting of the polling stations and the unclear times of closing the polling stations after the voting time was allegedly extended greatly affected a considerable number of voters. I say so because Kamfinsa constituency had a total of 19, 030 registered voters as against 13, 186 voters who cast their votes. The difference between the two is roughly 6, 000 voters. I am sure a reasonable number of voters out of the 6, 000 voters were prevented from voting because of the changes in the polling stations... For the learned judge to come to this conclusion, he was persuaded by the evidence of PW7, a registered voter at Chipangali polling station and RW4, a police officer, detailed to provide security at Chipangali polling station on the day of voting. J13 The evidence of PW7 was that he went to Chipangali tavern twice to cast his vote at Chipangali polling station but found that there was no poll taking place. The evidence of RW4 was that he arrived at Chipangali polling station on the 27th December, 2001 at 04. 50 hours and was there until 06. 45 hours when someone informed him about the change of venue. This is the witness who said he saw the posters in examination in chief but denied seeing them in cross-examination. The evidence of the two witnesses was contradicted by the evidence of RW7 who had testified that there were posters or notices to show that Chipangali and Kamainsa polling stations had been moved from Chipangali tavern and Fibusa grocery respectively to Weka Community Center (Mulenga Community School). He had no doubt that some of the posters might have been removed by disgruntled political elements during campaigns. Besides, he had told the lower court that the changes had been advertised on the local radio station, Ichengelo. In addition, RW7 told the lower court that he had, before the date of elections, arranged a meeting with all stakeholders, including the officers in charge of police stations and political parties, to brief them on how the poll was to be conducted. At that meeting, RW7 also told the stakeholders why he had moved Chipangali and Kamainsa polling stations to Weka Community Center. The witness told the lower court that everyone was agreeable to the arrangement; in particular, he was supported by the H. P. agents who did not want to mix with beer drinkers during voting. From the evidence on record, which is attributable to RW6 and RW7, the changes were made because the owners of Chipangali tavern and Fibusa grocery refused to close their business premises on the day of election. Coming to the voter-turn out, the evidence of RW6, returning officer for Kamfinsa, was that out of a total of 19, 030 registered voters 13, 025 voters validly cast their votes, with 161 rejected votes, bringing the total number of votes cast to 13, 186. According to RW6 this represented 68.44% of the registered voters in the Kamfinsa constituency. At page 493, volume 2, RW6 puts the percentage for the people who voted at Chipangali polling station at 70%, making it the second highest in the constituency after Kanona. In terms of the finding quoted above, the issue was whether the shifting of Chipangali and Kamainsa polling stations from Chipangali tavem and Fibusa grocery J14 respectively to Weka Community Center and the unclear times of closing the polling stations impacted negatively on voter turn out. We have outlined the evidence of RW6 and RW7 in much detail to show that the movement of Chipangali and Kamainsa polling stations to Weka Community center did not affect the poll at the two polling stations. The evidence of RW4, that he did not know that the two polling stations had been moved, should have been treated with caution because this is the same witness who, at first, said that he had seen the posters at Chipangali but later changed under cross- examination. This is the witness who was told by someone that the two polling stations had been moved and so he proceeded to Weka Community center. The fact that someone told him that the two polling stations had been moved should have, in our view, been taken as good evidence that there was publicity given to the transfer of Chipangali and Kamainsa polling stations? At this stage, we wish to take judicial notice of the fact that it is not uncommon to hear of the removal, tearing or disfiguring of campaign materials in the form of posters during political campaigns. We, therefore, agree with RW7 that this is what could have happened to some of the posters put up at Chipangali tavern and Fibusa grocery. On the basis of the evidence of RW6 and RW7 we find ourselves in great difficulty in agreeing with the findings of the learned judge that due to the shifting of the polling stations, coupled with the unclear times of closing the polling stations, a considerable number of voters were affected or were unable to vote. In our view, the learned judge should not have believed the evidence of RW4 because he was not a voter. On the other hand, the evidence of PW7, that he failed to vote because Chipangali polling station had been shifted cannot, in physical terms, lead to the conclusion that a considerable number of voters were prevented from voting due to the shifting of the two polling stations. In this regard, we are in agreement with the reasoning in R. vs. Rowe, ex parte Mainwaring (1) that it is not possible to draw an inference that other voters not called and identified at trial could have been impeded in casting their votes Going by our decision in the case of Nkata and 4 others (4), cited above, the foregoing finding is disturbed and in its place we hold that no voter was affected by the shifting of Chipangali and Kamainsa polling stations. If anything, the shifting of the J15 polling stations and the late closing times were well received as evidenced by the large number of voters who turned up to vote at the two polling stations. With the total number of voters being estimated at 68. 44% for the whole constituency, we have no doubt that the voter turn out was Quite impressive. Any suggestion, as canvassed by the trial court, that a reasonable number of voters out of 6,000 were impeded from voting because of the changes in the polling stations is not anchored on the evidence on record. Going by the evidence of RW6, the two polling stations of Chipangali and Kamainsa had a total registered voter population of far below 6,000 and this means that the 6,000 voters represented all the polling stations in the constituency. It follows, therefore, that their inability to vote cannot be attributed to the movement of the two polling stations only but to other factors, which the trial court would have come to learn if it had taken proper advantage of some of the witnesses. The learned trial judge, after considering Regulation 21 (1) of the Electoral (General) Regulations, in relation to the powers of the electoral officer to appoint a polling station, came to the conclusion that there was “no evidence on record to prove that the Director of Elections approved the change of the polling stations under review.” Although he was in no doubt that the electoral officer (RW7) has power to appoint any place as a polling station it is quite clear, from his conclusion, that the movement of the two polling stations was illegal in the absence of the approval of the Director of Elections. The stud Regulation 21 (1) provides: - For the purpose of the taking of a poll in a polling district the electoral officer for that district shall appoint a place at which the polling station for that polling district shall be established, and shall, in that behalf, give local notice and such other notice as the Director of Elections may direct. Apart from the above Regulation, there is no other Regulation that specifically regulates the transfer or change of a polling station to another location. So for our purpose, the much talked about transfer of Chipangali and Kamainsa polling stations to Weka Community Center was merely the relocation of the two polling stations. J16 In terms of Regulation 21 (1), it is not in doubt that the power to appoint a place as a polling station resides in the electoral officer of the district. After a polling station is established, the electoral officer is required to give local notice in addition to such other notice as the Director of Elections may direct. There is nowhere in the Regulation that requires the electoral officer to obtain the approval of the Director before a polling station is appointed or relocated as was the case in this appeal. In view of the foregoing comments, we are, once again, compelled to set aside the learned judge’s reasoning that the electoral officer was supposed to obtain the approval of the Director of Elections before effecting the change to the two polling stations. As stated earlier, it is a function of the electoral officer to appoint a polling station and once he has done that it is incumbent upon him to give local notice to publish the establishment of the polling station. The evidence of RW7 is that he did just that. This now leads us to ground two. Although the ground makes reference to Section 18 (2) (a) of the Electoral Act, the submissions of Mr. Nyirenda and Mr. Malambo are hinged on the provisions of Section 18 (2) (b) of the same Act. This is as it should be in view of our stated position that grounds one, two and four are all relevant to the conduct of the election by the ECZ. Interestingly, we still have ground three to dispose of where Section 18 (2) (a) of the Electoral Act will be examined in relation to that ground. Therefore, at our own motion we have decided to effect the minor amendment by substituting Section 18 (2) (b) as we strongly feel that the respondent will not be prejudiced in anyway. Further, if ground two, together with grounds one and four, are concerned with the conduct of an election then the appellant cannot be guilty of contravening the provisions of Section 18 (2) (b) of the Electoral Act. In our view, it is the ECZ that can contravene Section 18 (2) (b). Having made the above clarifications, which we think are very necessary, we would like, once again, to look at what the learned trial judge said in connection with Section 18 (2) (b) at page 32 of the record. From the record the learned judge found the ECZ blameworthy for shifting polling stations without giving adequate notices to the electorate and for causing confusion in the closing times of the poll at various polling stations, thereby depriving some voters their right to participate in the election. J17 On the basis of his conclusion, and after taking into account the provisions of Section 18 (2) (b) of the Electoral Act, he proceeded to annul the election of the appellant because he “was satisfied that the elections in Kamfinsa parliamentary constituency were not conducted in accordance with the laid down principles.” In his view, non-compliance with the principles must have affected the result of the election. At this stage, it is necessary to look at Section 18 (2) (b) in order to appreciate its extent of application. The sub-section reads: - 18 (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 the petition, that is to say- (b) subject to the provisions of sub-section (4), that there has been a non-compliance with the provisions of this Act relating to the conduct of the 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; or Assuming, for the sake of argument, that the different closing times of the poll and the shifting of the two polling stations were in non-compliance with the Electoral Act; assuming that the lower court had properly found that the election was not conducted in accordance with the principles laid down in the law and that such non- compliance affected the result of the election, could it have been prudent for it to proceed to annul the election on the basis of the provisions of Section 18 (2) (b) alone? We think not and this is so in view of the subjection of paragraph (b) of sub­ section (2) of Section 18 to sub-section (4) of Section 18, which 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. J18 The subjection of paragraph (b) means that once evidence of non-compliance with the Electoral Act by election officers in the conduct of an election is established to the satisfaction of the High Court, which evidence is capable of affecting the result of an election, the lower court is obliged to invoke sub-section (4) of Section 18 as a matter of course. This is done to enable the trial court to review the acts or omissions of the election officers in the conduct of the election in order to determine whether the election was so conducted as to be substantially in accordance with the provisions of the Act and whether such acts or omissions did affect the result of the election. From grounds one and four, we have said, by way of repetition, that the electoral officers were never guilty of any impropriety in the conduct of the election in relation to the closing times of the poll at each polling station because the closing times had been officially extended by the ECZ. We have also said that the relocation of Chipangali and Kamainsa polling stations to Weka Community center by RW7 was perfectly in accordance with the powers of the electoral officer to re-locate the two polling stations and that enough local notice had been given. In view of the foregoing and in consideration of the impressive turn out at the polls at 68.44% of the registered voters in Kamfinsa constituency, we have no difficulty in coming to the conclusion that the election was so conducted as to be substantially in accordance with the provisions of the law. In fact a recount, as ordered by the trial judge and conducted by the learned District Registrar, reconfirmed the standings of the candidates, with minor adjustments, in the poll as announced by RW6, the returning officer. In our considered view it was a misdirection on the part of the learned judge to invoke the provisions of Section 18 (2) (b) when there was no clear evidence of non- compliance with the conduct of the election by the election officers. We accordingly allow grounds one, two and four. In ground three the appellant is saying that the learned High Court Judge misdirected himself in law and in fact in holding that the distribution of relief maize by the government under a food relief programme was an electoral malpractice when there was no evidence to support such a proposition. In support of this ground, Mr. Nyirenda J19 and Mr. Silwamba submitted that the learned judge mixed two issues, that is, the issue relating to relief maize distribution and the issue relating to the sell of cheap mealie meal. As far as the two counsel were concerned, the two issues should not have been mixed up had the learned judge examined the evidence carefully. With regard to the issue of relief maize or food, it was submitted that this was a government programme, which was solicited by the appellant, as sitting M. P., sometime in September, 2001 from the Office of the Vice President after reports of hunger in his constituency reached him. Consequently, the Office of the Vice President, in conjunction with the district disaster management committee in Kitwe, appointed a non-governmental organisation (NGO) to distribute the relief food. This culminated in the signing of an agreement between the government and the NGO, known as, the Zambia Community Support Project, counsel submitted. They submitted that the relief maize was later transported to Kitwe by Sable Transport and distributed to all the needy areas in the five constituencies of Kitwe. Counsel argued that the issue of relief food was confused with the issue of mealie meal, which was being sold cheaply. They submitted that when the price of mealie meal shot up to K45, 000 per 25kg there was consternation throughout the country, as per the evidence of the appellant, whereby government had to intervene, through millers, in order to stabilize prices. It was argued that when the government intervened to stabilize the price of mealie meal the appellant had no control over the exercise. It was further argued that the mealie meal was sold cheaply but not given out freely; that the government was not engaged in the sell of the commodity but the businessmen. With this background, counsel were, therefore, surprised by the learned judge’s observation that the distribution of mealie meal influenced the electorate in favour of the appellant to the detriment of the respondent. Counsel said that such a conclusion was a misdirection. In response to the submissions on ground three, the State Counsel representing the respondent, Mr. Malambo, submitted that the learned judge did not misdirect himself in his finding that there was something wrong in the manner the distribution and supply of the subsidized mealie meal was conducted. He argued that the trial court heard the evidence live and had the chance of listening and evaluating the witnesses to gauge their performance. As a result, the lower court was in a position to disbelieve the evidence of J20 RW2 who had been called by the appellant to confirm that the Zambia Community Support Project, for which he was coordinator, was responsible for the distribution of relief food, the State Counsel submitted. Mr. Malambo was amenable to the argument that food relief programmes should not stop at an election, provided they were intended for the general good of society and not individuals as was the case in this appeal. He discounted the argument that maize was a donation under the relief programme. In his view, it was bribery and a vote buying activity, which ceased soon after the election of the 27th December, 2001 was over. In his written heads of argument, the State Counsel has disagreed with the written heads of argument of Mr. Nyirenda, for the appellant, that on the basis of the holding in the case of Akashambatwa M. Lewanika Vs. Fredrick J. T. Chiluba (2) there was nothing wrong with the distribution of relief food from the Vice President’s Office. He has argued that the passage alluded to by Mr. Nyirenda in the Aka case dealt with public philanthropic activity in favour of public causes “not directed at individual benefit.” He was of the view that the Aka case had no application in that the maize grain and maize meal were directed at individual voters’ private benefit, an act that amounted to treating, bribery, etc, under the Electoral Regulations. This ground of appeal and the submissions of counsel relate to paragraph (a) of the petition. After evaluating the evidence before him this is what the learned trial judge had to say: - I am sure the electorate must have been influenced by the distribution of the said cheap mealie meal to vote for a particular candidate. The respondent having sourced the mealie meal from the government as per his own evidence and as conceded by his advocate in submission, on a balance of probabilities the electorate was biased towards him though perhaps he was not directly involved in the actual distribution of the said cheap mealie meal. It does not matter as to who did the distribution of the cheap mealie meal as long as it is proved that it was done to benefit the respondent. The distribution of he cheap mealie meal contravened the provisions of Section 18 (2) (a) of the Electoral Act, Cap 13 as read with J21 the Supreme Court of Zambia decision in the case of Mlewa Vs. Wightman The appellant’s argument, as presented by his advocates, is that there was a government relief programme in which some relief maize and maize meal was distributed by a NGO (Zambia Community Support Project) in the Kamfinsa constituency. The relief food was initiated by the appellant in September, 2001 when he was still a sitting M. P. for Kamfinsa constituency. However, when the Vice President’s Office eventually gave the nod, the 400 bags of maize that were approved were, according to evidence on record, distributed to all the five constituencies in the Kitwe district equally by the same NGO. Their submission is that the relief food was not sold. It was either given out freely to vulnerable people, such as, widows, the aged, children, etc, or exchanged under the food for work programme. Side by side with the aspect of relief food was the sell of highly subsidized mealie meal, which was being sold between K25, 000 to K30, 000 per a 25 kg instead of K45, 000 to K50, 000. The price of maize meal had drastically come down through government intervention with the millers of the commodity. It has been emphasised by the appellant’s counsel that unlike the relief maize the subsidized maize meal was actually being sold; that as a government initiative the appellant had no control or say in the retail price and to whom it was to be sold. The counter evidence of the respondent and his witnesses was that the distribution of the relief maize was tipped in favour of those who were perceived to be supporters of the MMD. There is evidence by PW3, who spoke of MMD cadres getting more maize for the same work under the “food for work” or for no work at all. At pages 341 to 342, vol. 2, PW3 alleged that the MMD chairman in Kakolo, Mark Kasoka, demanded the production of MMD membership cards as a condition for getting the relief maize. The same witness does confirm on page 342 that members of other political parties got their portions after working for the food. The respondent’s counsel has reacted to such evidence with an assertion that the relief maize was not a donation meant for a life threatening emergency but a vote catching activity or simply a vote buying gimmick which was abandoned soon after the J22 elections closed. As far as the State Counsel is concerned, the distribution of the maize was meant for individual benefit and by implication this has been linked to bribery and treating. The fact that the appellant did not manage and distribute the relief food, is acknowledged by the learned judge. On the other hand, the learned judge does not think that it is the named NGO that distributed the relief food and there is no attempt, in his judgment, to find who distributed the food. To the contrary, there is the uncontradicted evidence, at page 447 of the record, that RW2, the coordinator of the NGO, personally supervised the distribution of the relief maize in the Kamfinsa constituency. The finding that the appellant sourced the subsidized or cheap mealie meal is not supported by the evidence. What the appellant helped to source was the relief food, which was distributed by a NGO under the operational guidelines from the Office of the Vice President. The evidence on record does confirm that the cheap maize meal was a government initiative for which the appellant had no in-put. Further, we are in agreement with the appellant’s counsel that the learned trial judge had mixed the two issues of sell of cheap mealie meal, a normal business transaction and relief maize distribution. The cheap mealie meal was not distributed as affirmed by the learned judge, it was actually being sold at a reduced price. With five constituencies in Kitwe district, there were 80 by 50 kg bags for each constituency to contend with. Considering the voter-population of Kamfinsa constituency, we do not see how the meager eighty bags of relief maize would have influenced the voters to vote for the appellant and not a candidate they preferred. It was, in our view, a drop in the ocean. It must also be remembered that the December, 2001 tripartite elections embraced three elections into one mammoth election. The political campaigns that were mounted by the parliamentary candidates coincided with those of the presidential and local government candidates. In this kind of scenario, it has not been shown by evidence in what way the appellant alone benefited out of the eighty bags, to the exclusion of the Presidential and local government candidates of the MMD, from the distribution of the relief maize and sale of subsidized maize meal. Coming to the respondent’s counsel’s submission that the distribution of maize grain and meal was a vote buying exercise and, therefore, an J23 offence under the Electoral Act, in that such conduct amounted to treating and bribery, we have decided to look at the relevant Regulations that proscribe such conduct in an election. Regulations 51 and 53 of the Electoral (General) Regulations are relevant. In Regulation 51 the offence of bribery is criminalized and so is the offence of treating under Regulation 53. If such conduct is proved to the satisfaction of the trial court, the relevant section of the Electoral Act under which an election can be avoided is Section 18 (2) (a). The section reads as follows: - 18 (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 a trial of an election petition, that is to say- (a) that by reason of any corrupt practice or illegal practice committed in connection with the election or by reason of other misconduct, the majority of voters in a constituency were or may have been prevented from electing the candidate in that constituency whom they preferred. The offences of bribery and treating come under Part IV of the Electoral (General) Regulations, under the sub-heading “CORRUPT AND ILLEGAL PRACTICES AND ELECTION OFFENCES.” So, we can safely say that bribery and treating are corrupt or illegal offences under Section 18 (2) (a) of the Act. They are, at the same time, criminal offences under Regulations 51 and 53 in relation to an election, which if allowed to take root during political campaigns, are capable of swaying the electorate away from a candidate of their choice. As we said under ground five, the standard of proof in such instances is one that is higher than on a balance of probability but less than the criminal standard of beyond reasonable doubt. We have made some very important observations in relation to this ground vis-a- vis the evidence on record. With such evidence, we are saying that before a trial court invokes Section 18 (2) (a) it ought to be satisfied that the evidence before it is to the required standard, that is to say, that issues of bribery and treating have been established to a fairly high degree of clarity. From our comments in relation to this ground it does not J24 appear to us that the evidence before the trial court met the required standard of proof. Had the learned trial judge subjected the evidence to the required standard, we do not think that he would have nullified the election of the appellant under Sectionl8 (2) (a). We allow ground three and in the same vein we do not think that the Mlewa and Aka cases are applicable. On the whole, the appeal is allowed. Accordingly, the order nullifying the election of the appellant is set aside and in its place we affirm that the appellant was duly elected as a member of the National Assembly for the Kamfinsa Parliamentary Constituency. The appellant is awarded costs of this appeal, as well as, costs in the court below, to be taxed in default of an agreement. E. L. Sakala, CHIEF JUSTICE D. M. Lewanika, DEPUTY CHIEF JUSTICE. SUPREME COURT JUDGE. I. C. M. Mambilima, SUPREME COURT JUDGE. S. S. Silomba, SUPREME COURT JUDGE.