Mlewa v Wightman (SCZ 1 of 1996) [1996] ZMSC 55 (24 January 1996)

MLEWA v WIGHTMAN SUPREME COURT NGULUBE CJ, SAKALA and CHAILA JJS A 4 and 24 January 1996 (SCZ JUDGMENT No 1 of 1996) Election law- Electoral Act 2 of 1991, s 18(2)^)-(d) - Paragraph B mdependen and separate - Proof of one sufficient to void election - Not necessary that candidate personally involved in wrongdoing for election to be void in terms of s 18(2)^). The four paragraphs in s 18(2) of the Electoral Act 2 of 1991 are independent and C separate paragraphs and an election shall be held void if any of the paragraphs is pioved to the satisfaction of the High Court. Where it is proved that there is wrongdoing of a scale or type which has adversely affected an election, regardless of who the wrongdoer is and even if the candidates personally were not involved, the election may be declared void in terms of s 18(2)(a/ n u Cases referred to: (1) Johnson Jere v William Kayemba 1983 (unreported). (2) Simwinji v Sibeta 1995 (unreported). (3) Sakala v Phiri 1994 (unreported). (4) Limbo v Mututwa, 197/Hp/EP/2 (unreported). (5) Jere v Ngoma (1969) ZR 106. (6) Lusaka v Cheelo (1979) ZR 99. (7) Wisamba v Makai (1979) ZR 295. S Phiri of S S Phiri & Co, for the appellant. M Sikatana, of Veritas Chambers, for the respondent. E F Sakala JS, delivered the judgment of the Court. This is an appeal against a judgment of three Judges of the High Court, sitting as a Division Court in an election petition, holding that the re- spondent, Josephat Mlewa, was not duly elected and ordering a nullifica­ tion of his election and making a further order that a fresh poll be held in accordance with the provisions of the Constitution. For convenience, we will refer to the appellant as the respondent and the respondent, in this appeal, as the petitioner which they were in the Court below. The facts of the case which were accepted by the High H Court are. that both parties were candidates in the Parliamentary General Elections held on 31 October 1991 for Mkaika Constituency. The peti­ tioner stood on the ticket of the Movement of Multiparty Democracy (MMD) while the respondent stood on the ticket of the United National Independence Party (UNIP). At the close of the voting and the counting * of the votes, the respondent was declared winner of the elections by the returning officer. The petitioner petitioned the High Court for an order that the election results for Mkaika Constituency be declared null and void on account that the respondent had not been duly elected or returned. In his petition, the J 172 Sakala JS Mlewa p Wightman (1995-97) ZR 171 (SC) corruntion q v r at e^ect^ons had been characterised by rampant nrarrirpe Tb ™ . ^Y and there had been several incidents of illegal L rr ’ i C Petltloncr also alleged that there had been violence, threats i e an property against voters in the constituency in general and against members of the Movement for Multiparty Democracy in parti- cu ar. e urther alleged that several voters in the constituency had been denied the opportunity to vote or to vote for a candidate of their own c oice y members of the United National Independence Party, their agents and their supporters. The petitioner also alleged that the elections had been unfair because the UNIP candidate, the respondent, had at his disposal and use a GRZ Landrover which he used for campaign purposes. The petitioner further alleged contravention of the electoral regulations in that a U N IP polling agent at Kanjedza polling station had personally communicated with voters who were lined up to vote. The petitioner gave oral evidence and called 15 witnesses to support his allegations. In reply to the petition the respondent filed an answer in which he denied the allegations of illegal and corrupt practices and coun­ ter-alleged that the illegal and corrupt practices had been committed by the petitioner. The respondent also gave oral evidence to rebut the peti­ tioner’s allegations and called four witnesses in support of his case. After a very careful review of the evidence and the submission, the Court summarised the various allegations made by the petitioner as fol­ lows: contravention of the electoral regulations; use of Government facil­ ities; corruption and bribery; undue influence; and threats and violence to life and property. A B c D E The Court found that, on the evidence, the allegations of contravention of electoral regulations; the use of a government vehicle to campaign and the giving out of jerseys to solicit votes had not been proved. The Court, however, found on the evidence that the exercise books and the T-shirts were campaign materials given as free gifts by UNIP with an intention of wooing votes. The Court further found that in plural politics, it is the parties which mount the campaigns for their candidates and that the consequences of any illegal dealings will inevitably affect the candidates so that a defence of not being personally involved would not be upheld if shown that the illegal acts complained of affected the results of the elec­ tion. The Court held that rhe distribution of the exercise books and the T- shirts had been done on such a large scale that many voters in the con­ stituency were bribed to vote for UNIP and that this had affected the outcome of the election. On the allegations of undue influence, threats and violence to life and property during campaigns,-the Court found that the evidence was overwhelming and had not been challenged. The Court, noted that all the incidents were witnessed by a lot of people in the constituency. In the opinion of the Court, the actions were capable of bringing fear into mind of voters and that the whole atmosphere appeared to have been characterised by intimidation and actual violence against MMD supporters perpetrated by the local leadership of UNIT, chiefs and their headmen. The Court concluded as follows: ‘Our finding is that UNIP mounted a very dirty campaign in the area and the elections were held in an atmosphere which was not free and fair because of the rampant acts of intimidation and violence. We have no doubt that this affected F G H I J . i -J I J1' Mlewa v Wightman (1995-97) ZR 171 (SC) <h< tcsult. We therefore agree with the petitioner that the respondent, Josephat hlh wa, was not duly elected. We nullify his election and order that a fresh poll I., held in accordance with the provisions of the Constitution.’ rhesc are the findings the respondent has appealed against. Although Hp icspondent filed a memorandum of appeal containing three grounds, Mi Phiri, counsel for the respondent, informed the Court that there was uily one major ground of appeal which hinged on the interpretation of । lu whole of s 18(2) of the Electoral Act 2 of 1991. Mr Phiri indicated that < Ins main quarrel with the judgment was the Court’s finding that the $ i. qumdent was responsible for the acts not committed by him personally . mi committed by his agent or polling agents without his knowledge and tpproval. He submitted that this finding, which raises a novel point of ; hw, was in total contrast with a further finding that the respondent was 11« •( guilty of any of the acts complained of in the petition and that the acts q iomplained of had been committed by the general membership of UNIP. Mi Phiri contended that there was no finding that the acts complained of h.td been committed with the knowledge or consent and approval of the icspondent. He argued that, the Court having found that the acts com­ plained of had not been committed by the respondent and that the p icspondent had no knowledge or consent and did not approve of them, it came to him with a sense of shock that the Court proceeded to find against the respondent. Mr Phiri pointed out that para (a) of s 18(2) of the I Electoral Act does not state as to who should commit the corrupt or illegal practice and that while para (c) of the same section does particular- e isc as to who should commit the corrupt of illegal practices, on the finding of the Court the respondent was not caught by the provisions of para (c). Mr Phiri argued that the provisions of s 18(2) have always been present even in the previous Electoral Acts (including the English Electoral Act from which our Act derived its provisions). Mr Phiri further argued that F para (a) of s 18(2) had never been applied independently or in isolation from para (c) of the same section. According to Mr PhirPs submissions the provisions of para (a) had always been qualified by the provisions of para (c). For these spirited arguments and submissions Mr Phiri referred the Court to the unreported decisions of the High Court in the cases of G Johnson Jere v William Kayemba [1], Simwinji v Sibctta [2] and Sakala v Phiri [3]. He submitted that the Court departed from its previous decisions' on account of the existence, now, of a plural politics in Zambia. He pointed' out that it was not the intention of Parliament when passing s 18 of the Electoral Act to change the position as it then existed. Mr H Phiri submitted that the illegal and corrupt acts of the general membership of a political party had never been contemplated by Parliament when it passed the 1991 Electoral Act. Mr Phiri concluded his arguments by submitting that para (a) of s 18(2) of the Electoral Act was superfluous. On behalf of the petitioner Mr Sikatana contended that the issue before 1 the Court was one of law and that he had no difficulty in supporting the law as it stands. He submitted that para (a) of s 18(2) of the Electoral Act of 1991 is clear and unambiguous as it stands. He further submitted that paras (a) and (c) stand on their own and stand independent of each other pointing out that para (a) deals with ‘any corrupt or illegal practice J Sakah JS Mlewa v Wightman (1995-97) ZR 171 (SC) With the candidates connection with the elections . . .’ but nothing to do with Dara A) snerT if 3n e^ect^on a particular constituency, while and dlegal P^tice committed in connection anoro 1 f b 1 * e election by or with the knowledge and consent or i^i candldatc or by election agent or his polling agent. Mr r . , na tle unrcported decision of the High Court in the case of ,m 0 p ututwa [4] in which the Court found nothing against the can i ate ut still nullified the election for illegal practices committed by persons who were not agents of the respondent. Mr Sikatana sub- mitte that although the Court found nothing against the respondent, t e issue before the Court was to determine the effects of the acts com­ plained of on the whole elections once proved. He urged the Court to dismiss the appeal with costs. We have very carefully examined the evidence on record and the judgment of the High Court as well as the submissions by both learned counsel. Before resolving the legal issue raised by the appeal we wish to express, with regret, our deep concern for the long delay it has taken to bring this particular election petition to its final determination. We share the concern of all the affected parties. The appeal arises from a petition challenging the election of the respon­ dent during the Parliamentary General Elections held on 31 October 1991 for Mkaika Constituency. The petition was filed in the High Court on 29 November 1991 while the answer was filed in the High Court on 10 July 1992. The hearing of the petition only commenced on 26 January 1993 at Chipata. The petitioner concluded his case on 6 April 1993 while the respondent closed his case on 14 June 1993. On 4 August 1993 the re­ spondent filed his final submissions. We take note that before the parties closed their respective cases there were several adjournments and that the hearing of the petition took place at Chipata before three Judges, two from Lusaka High Court while one came from Kabwe. Both counsel came from Lusaka. The record of appeal was filed in the Supreme Court Rcgistiy on 23 October 1995. We have deliberately set out the history of this appeal to acknowledge the fact that there was inordinate delay in finalising this petition. We are now in 1996. We take judicial notice that this is supposed to be an election year. The delay, however, cannot be attributed to any individual party to the proceedings nor to the Court. They were delays generally described as unavoidable. Turning to the appeal itself, art 72(1) of the Constitution empowers the High Court t6 hear and determine questions as to membra ship of the National Assembly. Article 72(2) reads as follows: ‘The determination by the High Court on any question under this article shall not be subject to appeal: provided that an appeal shall lie to the Supreme Court from any determination of the High Court on any question of law including the interpret^।hhi nf llux CoiinULuIiuii* We agree with the submissions by both learned counsel that the deter­ mination of the issues in this appeal centres on the interpretation of $ 1.8(2) of the Electoral Act 2 of 1991, in particular para (a) and (c). The appeal therefore raises a question of law and is properly before this Court. On B C D E F G H I Sakala JS Mlewa v Wightman (1995-97) ZR 171 (SC) / j , account of the position taken by Mr Phiri in k;, i - ■ and (c) of s 18(2) that para (a) as a ground^ sub“™ ™ P«a (a) □ F , ground cannot stand on its own but that > ,S S s by Para (C)' k bcc— necessary "o set out the whole s 18(2) in order to ascertain whether the four paragraphs are dependent on each other and in particular whether Mr Phiri is correct in U by Para SCCti°n ‘%Tbe noon and‘datC as a member of the National Assembly shall be grounds which is proved to the satisfaction of the High Court upon the 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 the voters m a constituency were or may have been prevented candidate in that constituency whom they preferred; or (b) subject to the provisions of ss (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; (c) that any corrupt practice or illegal practice was 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 poling agents; (d) that the candidate was at the time of his election a person not qualified or a person disqualified for election.’ It is common cause that the Court did not find the respondent guilty of any corrupt or illegal practices committed in connection with the election in the Mkaika Constituency or that such practices were with his knowl­ edge and consent or approval. There was also no finding of corrupt or illegal practices made against the respondent’s agent or polling agents. On the facts of the petitioner’s case as pleaded the issue of non-compliance with the provisions of the Electoral Act did not apply. Paragraph (b) was therefore not in issue. Furthermore para (d) was also not unlike because the question of whether the respondent was not qualified or a person disqualified for election did not arise. On the other hand the Court found that the distribution of the exercise books and the T-shirts in the Con­ stituency done on a large scale amounted to bribery by UN IP and this affected the outcome of the election. The Court also found that the evidence of undue influence, threats and violence to life and property during the campaigns was overwhelming and was perpetrated against MMD supporters by the local leadership of UNIP, chiefs and their head­ men. The Court concluded that the elections were held, in an atmosphere which was not free and fair because of the rampant acts of intimidation and violence. Mr Sikatana contended that the Court fell short of saying that under s 18(2)(o) of the Electoral Act 2 of 1991 we hold that the election was null and void’. , , The gist of Mr Phiri’s submissions and arguments is that the Court having exonerated the respondent on all the allegations o corrup an illegal practices committed by the general members ° strued the provisions of s 18(2)(«) and (c) of the Electoral Act 2 of 1991 by nullifying the whole election because the provisions of para (a) are qua- A B C D E F H I J Sakala JS Mleu/a v Wightman (1995-97) ZR 171 (SC) lifted by para (c) Mr Sikatana on the other hand, contended that the two paragrap s are in epen ent of each other and each one of them forms an ^dependent and separate ground upon which once proved an election can be nullified. r A After a very careful examination of the whole of s 18(2) and in parti- cular paras (d) and (c) we have no hesitation in agreeing with the sub­ missions by Mr Sikatana. Subsection (2) of s 18 in our view sets out four c ear grounds upon which an election of a candidate as a member of the National Assembly shall be held void once each is independently proved B to the satisfaction of the High Court. Proof of one of the grounds is enough for a Court to nullify an election. We are satisfied that ss (2) of s 18 sets out four independent and separate grounds which if any of them is proved to the satisfaction of the High Court then the election of a candidate as a member ot the National Assembly shall be nullified. Wc C are fortified in our interpretation of s 18(2) by a number of decided cases both unreported and reported. In the case of Limbo v Mututwa [4], the only unreported High Court decision made available to us, Cullinan J considered s 17(2) of the Electoral Act, 1973 with similar provisions as s 18(2) of the Electoral Act 2 of 1991. To make the comparison crystal D clear it is imperative to set out in full s 17(2) of the 1973 Act. Section 17(2) of the Electoral Act of 1973 reads as follows: ‘(2 ) The election of a candidate as a member 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: E (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; or (b) subject to the provisions of ss (4), that there has been a non-compliance with the provisions of this Act relating to the conduct of election 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; _ (c) that any corrupt practice or illegal practice was committed in connection . with the eleclion by or with the. respondent John Chiponda Chisamba G Peterson Ngoma was not duly elected as Member of Parliament for the Chipata West Constituency, and declare that this election void.’ The headnote to the report is more illustrative and apply put and reads: ‘Where evidence shows that a candidate for election to Parliament was pj prevented, by the misconduct of other persons, from lodging his nomination papers with the leluming officer, such misconduct essentially makes the election in the-particular constituency void.’ The election was nullified under para (a) because the petitioner had been prevented, by ‘a crowd of people.’, nothing to do with the respon- 1 dent, from lodging his nomination papers. In the case of Lusaka v Cheelo [6] the petitioner based Iris case on s 17(2)^.) and (c) of the Electoral Act, chap 19, whose provisions are also word for word as the 1991 Act. The Lusaka case is a good illustration of nullification of an election under para (c) where a candidate or agent is J held blameworthy personally. Cullianan J nullified the election under para . : . J ; v 4; J, /J Sakala JS Mlewa v Wightman (1995-97) ZR 171 (SC) M for the corrupt practice of bribery committed by the respondent while para (a was held inapplicable. In the case of Wisamba v Makai [7] the grounds for the petition were based on the provisions of s 17(2)(b) and ri) of cap 19. Although the petitioner did not succeed on both paragraphs as the determination of the petition finally centered on the recount, Cullia- A nan J in the course of reviewing the evidence, acknowledged that proof of each of the four paragraphs in s 17(2) can be a basis for nullifying an election. We are in full agreement with all the High Court decision on the interpretation of the previous s 17(2) and now 18(2) of the present Elec- toral Act. It therefore follows that the position taken by Mr Phiri in his submissions that Courts have made para (a) dependent on para (c) is not correct. The four paragraphs in s 18(2) are independent and separate grounds. On a consideration of the whole section we arc satisfied that the C respondent missed the point of difference between the two distinct and separate situations as at para (a) and (c). The question of personal knowl­ edge is quite irrelevant and inapplicable under para (a) where it does not matter who the wrongdoer is and the scheme of the law appears designed to protect the electorate and the system itself by providing for nullifies- 1^ tion whenever there is wrongdoing which the Court feels satisfied, per­ haps because of the scale or type of wrongdoing, has adversely affected and probably affected the election. In other words the conduct com­ plained of has to affect the election. In contrast para (c) penalises the candidate. Even one or two proven E instances are enough and even if they could not conceivably have pre­ vented the electorate from choosing their preferred candidate. In the present case we find no departure from the previous decision. We do not accept that plural politics affected the Court s interpretation of s 18(2)^ and (c) of the Electoral Act 2 of 1991. Paragraph (a) in our F view is not superfluous. This appeal cannot succeed. It is therefore dismissed with costs. Appeal dismissed. G