Dean Masule v Kangombe (None of 2019) (5 February 2020) – ZambiaLII

• IN THE CONSTITUTIONAL COURT OF ZAMBIA 2019/CC/A002 AT THE CONSTITUTIONAL COURT REGISTRY HOLDEN AT LUSAKA (Constitutional .fu.risdiclinn.) lN THE MATTER OF, A PARLIAMENTARY ELECTION PETITION FOR SESHEKE CONSTITUENCY NUMBER 153 SITUATE IN THE SESHEKE DISTRICT OF THE WESTERN PROVINCE OF THE REPUBLIC OF ZAMBIA HELD ON TUESDAY, 12Tu FEBRUARY, n , cR ~ ,:11;11 2019 AND IN TllE MATTER OF: ARTICLE 73 OF THE CONSTITUTION OF ZAMBIA (AMENDMENT ACT) NO. 2 OF 2016 AND IN THE MATTER OF: SECTION 83 OF THE ELECTORAL PROCESS ACT NO. 35 OF 2016 AND IN THE MATTER OF: SECTION 97 OF THE ELECTORAL PROCESS ACT NO. 35 OF 2016 AND fN THE MATTER OF; SECTION 98 AND 99 OF THE ELECTOAAI, PROCESS ACT NO. 35 OF 2016 J1 • .. . AND IN THE MATTER OF: SECTlON 108(6)(C) OF THE ELECTORAL PROCESS ACT NO. 3 5 OF 2016 ARD IN THE MATTER OF: THE SCHEDULE TO THE ELECTORAL PROCESS ACT NO. 35 OF 2016 m 'l'R.E M;ATTER OF: THE ELECTORAL (CODE OF CONDUCT) REGULATIONS 2011 STATUTORY INSTRUMENT NO- 52 OF 2011 lN 'l'H;E MATTER OF: THE ELECTORAL CO.MMiSSION OF 'ZAMBJi\ ACT •NO. 25 OF 2016 BETWEEN: DEAN MASULE APPELLANT AND ROMEO KANGO!'v{BE RESPONDEI'iT I • ' ' Coram: Chibomba, PC, Mulenga, Mulembe, Munalula and Mui.-aluke JJC on 8th October, 2019 and 5th February, 2020 or For the AppeJJan l: Mr. J . JaJasi and Mr. M. Chileshe Eric:: Si1wan1ba, ,Jalasi Linyruna Legal Practitioners. For 1ht> Re1,pondcnt: Mr. M. H. Haimbe and Mr, JC P'l,iri of Malamb11 and Company. JU.DGMENT Musaluke, JC delivered the Judgment of the Court. Cases referred to: 1. Khalid Mohammed v Th~ Al.Corney General 1198'2) Z. R. 49, 2. Wilson Masm1so Zulu v AvondaJe Housing Pr~jcct LiJnited (1982) Z.R. 17?... 3. Akashamb·al-wc1 Mbikusita Lcwan.ika and 01.hers v J,redrick Jauol> 'T'itus Chiluba (1998) Z.R. 79. 4 Sunday Chitungu Maluba v Rodgers Mwewa and Attorney General CCZ Appeal No. 4 of 2017. S ,Joseph.at Mlewa v Eric Wightman ( 1q 95 l 997) Z.R. 17 L 6, Nkandu Luo and A:not11er v Doreen Sefukc Mwamba and Another Selected Judgment No. 51 of'201,<l. 7, Herbert Shab u la v Greyford Moncle CCZ i\ppool No. l,'1 or 201 f> .. 8. SJbongile Mwamba v Kelvin M. Sampa and AnoWler C'CZ Appeal N9. 2 of 2017. 9. Poniso Njeulu v Mubika Mubika CCZ Appeal No. Y of 2017 J~ • 10. Giles Chomba Y<1mba Yamba v Kapen1bwa Simbao and Others Selected Juilgmenr. No. 6 of 2018. l i. MargareL Mwauakatwe v Charlotte ScdtJ. and /\ttornt:y General Selected Judgment No. 50 of 2018. I2. AusUn C. Mila,rnbo v Machila Jamba CCZ /\pp,tal N'o. fi of 2016. or 13. Webster Chipili v· David Nyirenda SCZ Appeal No. 35 2003. 14. Raila Odioga and five others v Independent Electoral and Boundaries Commission and 3 01}1ers Election Petition No. 5 of 20 t 3 - Supreme Coun r1r Kenya. 15. Match Corporat.ion Limit,ed ;,md Development Bank of Zambia v Attorney General SCZ Judgment No. 3 of 1999. Hi. Motor 1-loldmgs (Z) Limit.eel v Raj Raman SCZ Judgment No j 7of2001. l 7 Re Thomas Mumba v The People (1984) Z.R. .38. 18. Mwenya Muscnge v MwiJa MutaJe ;u1d Another CCZ Appeal No. 41 of 2016. L!!gislation referred to: 1. The Constitution ofZa:rnbia (Amendment) Acl No. 2 of 20ifr 2. Elec:Loral Commission Act No. 25 of20i6 .3. 'The BlectoraJ Proce:;l:i Ad No. 35 of2016 4. Eledoral Act No. 2 of 2006 ,5. r-lectoraJ Acl chapter 13 of the Laws of Zambia. 6. Electoral Act No, 2 of H19 l 7. Electoral /\cl No. 1~1 of 1973 J4 ' • • LO Introduction 1. l This is an appeal against the judgment of Chawatama, J in tJ:ie Higb Court, whlch upheld the election of Mr. Romeo Kangombe as Member of Parliarnent for Seshcke Cons1:i1:uency, in the Sesheke Dist1ict of rhe Western Province of the Republic of Zambia. 2.0 Background 2. l The background Lo Uiis a,ppeal is lhal upon the death of the area Member of Parliament for Sesheke Constituency, the Electoral Commission of Zambia conducted a by-election which was contested by: Mr, Dean Masule (the Appei!ant herein) of the Patriotic F:ronl (PF);· Mr. Romeo Kangombe (the Respondent herein) of the United Party for Nation.al Deve::lopmen t (VPN D); Mr. Victor Kalimukwa., of the• United Prosperous and Peaceful Zambia (VPPZ) and Ms. Charily L. Muhau of the People's Alliance for Change (PAC) JS I ' 2.2 The Responderit emerged victorious with 8, 496 votes and was declared duly elected Member of Parliament for Lhe Seshcke Parliamentary Constituency. The Appellant ca.rue in second having polled 3,640 votes; the other candidates shared the remaining valid votes as follows: Mr. Victor J(alimukwa, UPPZ160 votes and Ms. Charity L. 'Muhau PAC - 139 votes_ 3,0 l!;vidence before the trial court 3.1 Aggrieved by the outcome of the by-election, the Appellant on 2.7lh Febru ary, 2019 took out a petition before the Higl1 Court, seeking among 0ther reliefs; a declaration that fue election of lhe Respondent \1vas null and uoid ab iniito. ~ ..2 In his petition in t.he court below, rbc Appellant alleged that the election was marred by ttndue influence emanahng ffom threats and violence to life and property .apd rampant physical attack on the members of the PF and rnern,bers of the general public which culminated in severe injuries to persons and property. .Jf, • That the said -acts of violence Were widespread and affected the majority of voters in the nine 1.vards of the constituency. ,3.3 Th.e Appellant specifically conte11ded that the acts of v1olence resulted in several people being occasioned with serious injuries and being treated in hospitals. That most of the perpetrators of the violence were being arrested. by the Police. He .cited numerous incidents of violence which occLtr.red prior to the tlominat'ion, during the period of campaign and on tl1e voting day which 1ncidents have been highlighted in the judgment of the lower court. 3.4 The Appell'ant had contended that as a consequence of .the violence. 1.-he majority of voters were prevented frorri electing therr preferre<l candidate. 3.5 In rebutting the allegations, the Responden1 contended 'that tihe violence was not widespread and stated that all political parties campaigned freely. In his evidence, the Respondent only recounted lwo incidents of violence which .he witnessed. One )7 . ' _. such incident was at Maondo '".vhere he alleged that he was at a public rally with party president for the UPND Mr. Hakamde Hicbilema on F'ebruary, 2019 when they were attacked by 8th the Police· and other people in plain clolht's. Th_e other incident he- referred to was when his polling agent was allegedly abducted at Tahaiima Polling Station and the subsequent beating of PF cadres at Scsheke Guest House. 4 .0 Decision of the trial court ~.1 After consideration of the, evidence on reoord and submissions by the parties, the learned trial jttdge crurie 1.o Lhe conclusion that the petition before her was predicated on sections 83, 97, 98 and 99 or the Electoral Process Act No. 35 of 2016 as read with the schedl.tle thereto, the Electoral (Code of Conduct) Regulations S.I No. 52 of 2011 and the Electoral Comn1'ission Act No. 25 of 2016. 4.2' The leanned trial _judge reminded herself that the bu1·den of proof in civil matters rests 011 1 he Plaintiff as was articulated in JS \ the cases of Khalid Mohammed v The Attorney General I and Wilson Masauso Zulu v Avondale Housing Project Limited2 . F'u.rther, thal in election petitions, the standard of proof is not the i:;ame as ordii1ary civil matters as it is higher than on a balance of probability bu t not to the degree of beyond reasonable doubt as is the case in crimilJ.al 111atters.. The trial judge cit;ed t11e case of Akashambatwa Mbikusita Lewanika and Others v FTedrick Jacob Titus Chiluba3 as au thority ror this proposi Lion. 4.3 Having established the standard of proof required in an election petiJinn, the trial judge proceeded to analyze the case before her. In relation Lo the provisions or section 97 of the Electoral Process Act, she poinled ou t that this Courl nas pronot1nced itself on section 97 oft he Elect.oral Process Act whlch is couched in mandatory tenns and provides for clear elem~nts which ii petitioner must. prove in order to successfully have an election nullified. J9 • 4.4 The trial judge opined mat Lhe t1rireshold contained 1n t11e Elcctoi,31 Process Act for nullification of elections by courts is clex- and must be sa'tisfiecl 0n the basis of credible and cogent evidence which .a petitioner must prove io 1€ foirly high degree of convincing clarity. 4.5 In th!S regard, the trial judge posed the following questions for detcrmi.J1ation in relation to tJJe petition before her: (i) Whether or rwl in connection. ·with the election, miscon.cluct was comncitted 1n that lhe election 1.t,as rn.an-ed with violence an.cl undue influence; {ii) Whether or riot the misconduct alleged 1,uas t:om.mitted by the Respondent or his election or polling agent; (iii) (f the misconduct was committed, tohether· or not 'lhe. majority of voters in the con.stituency, district or ward were or may have been prevented from electing the candidate in that constituency, district or 1,uard 1vhont they preferred; a.nd 11:0 (iv) Whether or not there was non-compliance tuith the provisions of the Electoral Process Act relating to the con.dud of elections. 4.6 In relation to the fu·st. question, !.he learned trial judge found that based on the ev1dence before her, the Petitioner had established his allegations regardmg the violence and undue influence with the rcqttisite clarity and standard of proof requiJ-ed under the applicable Jaws. 4.7 On whether OF 1101. the violence and w1due inOucnc:e was widespread,, the trial judge was guided by the definition of the word 'un.<.lespread' given by this Court in the case of Sunday Chitungu Maluba v Rodgers Mwewa and Attorney General4 in which we guided that the word "widesptead" meant: «widE!ly distributed and disseminated." 4 .8 She noted that out of the nine wards in Sesheke constituency, there where acts of violeuce and Ltudue influence in six. wards .namely; Lusu, Maondo, Nal{atirtdi, Mulimrunbango, Katin1a and Ji 'l ' Kah)belelwa. That the nw11bet of registered voters in the said six wards was twen:ty-three thousand, three hundred -and hinety -six (23,396). That the two wards that e:,..-perienced Lhe worst violence were Mutimambango where there was a riot, followed by Maondo were a public rally by the UPND was held anc: U PN D officials were for.ced to flee and hide in the bush. That the. two wards combined had a total number of nine thousand nine hundred and sb,ty two (9,962J of registered voters. That of the total registered voters in tbe Constituency of 27,872, only 12,516 cast their votes. 4.9 That given the number of registered voters who cast their votes, an inference was made Lhat most people could have been affected by violence and undue influence, Lhe uial judge iherefore came to a conclusion that violence and undue influence was widesprea.d within U1e contemplation of secbon 97 (2) (a) of the Electoral Process Act. 4 lO With regards to the s~cond question on whether or not the m..isconduct alleged was commitled by the Respondent or his Jl2 electi'on agenl, Lhe learned trial judge found that there was no evidence that was proved to the satisfaction of the court that the Respondent or his agent co1nmilted corn.1f)t or illegal practices or rp.isconduct in connect.ion v.rit.b tJ1e election. 4.11 As to whelher oi- not the majority or voters in the constituency. district or ward were or may have been prevented from vo~i.ng for r.heir preJerrcd candidate, the trial judge was sa1islied that the voters may have been prevenLed from electing a carldidate of 1.heir choice bcc.aL.tse of the violence which: was widespread. 4. J 2 With regards to tht: fourth question whet.her or not there was noh·Compliance with the provisions of t)'le Electoral Process Act relating to the conduct. of elections. the trial judge found that Lhere was a breakdown oft.he process oecause the environment in which the election was conducted was not conducive· due to the unprecedented acts of violence. It was her finJing that violence continued even after the Electoral Comrnission of Zmnbia. issued a press statement regarding acts of violence during the campaign peri,od. She fouud that the Electoral Comm.tssion of Zambia should have gone furthe,- lo st1spend J13 campaigns or should have disquahfiod politicaJ parties involved in the violence. 4 .. 13 Addressing the atgumen Ls raised on section 97 (2) (b) or ilie ElectoraJ Process A.ct, the trial court reiterated the position given by this Court that this provision relates to the condUc1 of elections and that as per Article 229 of lhe Constit;1..11ion as amendect, the power to conduct elections vests in the Electoi-al Commission of Zainbia, 4 14 That for an election to be annulled under section 97 (2) (b) of the 8lec.toral Process Act, the conduct complained of must e..xdusively relate to the Electoral Commission of Zambia and its officers. 4.15 The trial judge sumr.neci up her findings by st.ating that it had nol been proven to the satisfaction of l,he co\.ttl that the rn_isconduct oom1nitted in connection with the Sesheke constituency by-election was: i) By the Candidate, ii) With 'Lhe Knowledge a11d consent or approual of the Respon.denl or of r.he Respondent's election agent and that the majority of voters in a Constiti1en,cy, District or Ward were or may have been pre1,1ented from electing the candidate in that constituency, District or Ward. whom they prefr;n-ed. •L 16 The trial judge then found that the will of the people of Sesheke Constituency was expressed by the number of votes secured by the winning candidate Mr. Romeo Kangombe and th.al it was her prin,ary duty t.o sustain lliat will by giving full effect to the decision of the people of Sesheke Constituency. 4.17 She thus held that Lhe Respondent was validly eiected ai:, Member of Parliament in ,the election that was held on 12•ti February. 2019 and therefore dismissed the petition. 4.. 18 Wifh respect lo the argument on the ranking of the Constitutional Court and the Supreme Court, the learned jut'lgc found that it is not in dispute that the two courts rank pa1i. passu and that it was not the intention of the Constitutional Court to ovenu1e the decision 01 the Supreme Court in .the case of Josephat Mlewa v Eric Wightman5 a.s suggested 10 the Jl5 subrr1iss10ns by the Appellant :butt.hat tl1e Constitutional Court was giving interpretaLion to the cur-rent electoral law. Further, that in Nkandu Luo and Another v Doreen Sefuke Mwamba and Attorney Gene:ral6 the Constitutional Court gave a , position that the Josephat Mlewa v Eric Wightman5 case was not tenable under the current electoral law. 5.0 Appeal to this Court 5.1 The decision of lhe lower court to uphold the election of fue Respondent as Member of Parliament for Sesheke Constituency dissatisfied the Appellant and he Q.ppealecl to this Court-against. parts of lhe judgment, He advanced two grounds of appeal as follows: "Ground One: '!'hat the learned trial Judge e1Ted in. lalv a.11cl in fact uJhen she held that the prouisi.on.s of section. 97 ('2) (b) of the Electoral Process Ar.t No. 35 of 2016 exdusiuely gouen1ed the aclivi.ties of the Electoral Commission of Zam.bia. U6 • Ground Two: The learned trial Judge erred in {(J.i/J 1.uh.en. she held that the case of Josephal !vflewa v Eric Wightman (1995 - 199 7) ZR 171 has restrictive application. in the currenlElector,al Law." 6 .0 Arguments on appeal by the Appelhmt or 6. l rn support of bis appeal, the Appellant filed detailed heads argument on gu, Allgust; 2019. The two grounds of appeal were argued together on the basis thal they were interwoven. fi,2 The Appellant argued that the trial.jLldge .cor:rectly encapsulated the electoral legal framework a~ local, regional, continental and interi1ational levels in her judgment (at pages J210 to J'.212) and that she extensively referred fo. ehe provisions of Lhe Constitution part.iculru·ly, Articles l l(b), 21, 45 and 229 of the Constitution of Zambia. 6.3 The Appellant submitted that the trial judge erred in law and fact when she held that provisions of section 97 (2) (b) of the • • Electoral Process Act No. 35 of 2016 exclusively governed the activities 0f the Electoral Commission of Zambia. fi'urtber, lhat the learned trial judge foll in grave eJTOr when she found as a fact that the electoral systen1 in Lhe Sesheke parliamentary by election had broken down and that the environment was not. conducive for the holding of a free and fair election and yel proceeded to hold that the will of the people of Sesheke Constituency was expressed by I he number of voles sec1..1red by the Respondent. 6.4 It was lbe Appellant's further submission that it is not the· nu mber of votes secured by a w'inning candidate that determines that an election was free and fair. That as a matter of fact, the converse is the posilion as the Appellant in the court below aven·ed that he had lost .t.he election because of the violence and that the majon ty of voters were prevented fron1 choosing a candidate of their choice. 11-'te Appella,nt submitted that since lhe trial judge had found as a fact that there was violence and also found that Lhe violence ·was widespread and that the 1najority of voters were prevenLed fro1n casting their J18 • I • vote, lherefore, the learned trial judge's judgment was con tradic1·ory, 6,5 In support of the above submission, the Appellant called in aid varlous decisions of lhis Court in ,vhich we have exarruned section 97 o:f the 8 Iectoral Process A.c;:L. Our atte11tion was particularly drawn to U1e following cases: Herbert Shabula v Greyford Monde7 Sibongile Mwamba v Kelvin M. Sampa and , Another,8 Poniso Njeulu v Mubika Mubika9 , Giles Chomba Yamba Yamba v Kapembwa Simbao, Electoral Commission of Zambia and Attorney Gene.ral10 Nkandu Luo and Another , v Doreen Sefuke Mwamba arid Attorney General6 and Margaret Mwanakatwe v Charlotte Scott and Attorney Genera111 6.6 In distinguishing tbe cases <.:iled in paragraph 6.5 above·, lhe Appullaut ru:gued that in interpreting section 97 (2) (b) of the 8\ectoral Process Act in lhose cases, this Court did not find thal rhe offences committed were of a widespread natw-c. Unliln; in Jl'l the case at hcmd where the trial ju,dge correctly tound as a fact that acts of violence. were widespread. 6.7 lt was further submitted by the Appellant lhat this tourt in its previous decisions was not invhed to inlerrogate the application of the 1-atio in Josephat Mlewa v Eric Wightman5 to 1h e current electoral legal regime. 6.8 lf. was the Appellant's submission that a historical look 1:1t the wording of section 97 oI the Electoral Process Act sb0ws that it has remained the san1e and that it was never the intention of Parliament to make the provisions of section 97 of Lbe Electoral Pvocess t9 become porous and ineffective. 6.9 In demonstrating that the provisions of section 97 of the. Electoral Process Act are the same in wording as in previous electoral laws, our attention was drawn to the repealed pieces or legis1ation as fo1lows; seclion 18 of the Electoral Act Chapter 13 of ,the Laws of Zambia, section 18 of the Electoral Act No. 2 of 199 l und sectio11 93 of the Electoral Act Nq.. 12 of 2006, lt J20 was the Appellant's position that provisions of section 17 of the Electoral Act No. 44 of1973., Chapter 19 of the Laws of Zambia, section 18 of the ~lect.oral Act No. 2 of 1991 and the cu.rr<:=nt section 97 of the Electoral Process Act are almost fpsissim.ct. verba. 6.10 lt was argued that section 18 orthe Electoral Act No. 2 of I991 was pronounced upon by the Supreme Court in the case of Josephat Mlewa v Eric Wightman5 in which it was- h eld inter aJia that. proof of any one of the requirements set out in section 18 was enou.gh to nullify an election. 6. 11 On lhe rruiking of the Constitutional Court and the Supreme Court as reg.arcls the holding of tlle Supreme Gollrt in the case ofJosephat Mlewa v Eric WightmanS, the Appellant submitted that the Constitutional Court in Nkandu Luo and Another v Doreen Sefuke Mwamba and Attorney Genera16 did not hold that Josephat Mlewa v Eric Wightman5 was bad law bul stated that it was inapplicable to that case. That in any cvenl. the Constitutional Court cannot overrule a decision of the JJ.j_ Supreme Court as the said courls rankparipassu as per Article 121 of the Constituti0n of Zambia (Amendment) Act No. 2 of 2016. 6. 12 The Appellant thus submitted tl)aJ the trial judge erred in law when she held that the facts ih the case of Nkandu Luo and Another v Doreen Sefuke Mwamba and Attorney General6 and lhe petition which was before her were similar ll was submitted that since the trial judge found as a fa.ct. lbat there was violence and that the said violence ,vas widespread and furtt1er that the electoraJ system in Sesheke Parliamentary by .election held on 12th February, 2019 had broken do1vvn .a-nd that the env'ironment was nol conducive for the conduct oJ an election, she should have nullified lht: election of the Respondent as Member of Parliament fo1: Sesheke Constituency, 6. 13 The Appellant's prayer was that we should allow the appeal based on the subrr1issions made before us. J22 7 .0 Arguments on appeal by the Respondent 7. 1 The Respondent filed his beads of argument in response .to lhe appeal on l lt" September, 2019. Additionally, t.hc Resporttlen t relied on the submissions filed before the- court below and appearing at pages 654 to 716 of the record of appeal. 7 .2 T.he Resp0ndent submitted that it is not in dispute that there were incidents of violence though these could noL be attiibuted to the Respondent or his appointed election agen L, bt1t by third parties, including the Zambia Police who perpetuated violence during the course of the election, 7 .3 That the lower court having regard to the evidence before it and the unambiguous provisions of section 97 of the Electoral Process Act was on Cerro firma when iL dis1nissed the petition for failure to meet the very stringent ,threshold for annulrnent of an elect10n comprised in section 97 of the Electoral Process Act. '7 ~4· In demonstrating that the trial judge was on terra .fi.rma when she anived at her decision, the Respondent examined the gr.ounds of appeal advanced by tbe Appellant.. 7 ,5 With respect to gr'ound one that:. 'the learned trial Judge e1Ted in /au, arid in facl when she }telr;l that the provisions ofs ecL io rt 97 (2) (b) of the Electoral Process Ac.t No. 35 of 2016 exclusively governed the activities of the Electoral Com.mission ofZ ambia j iL was the Respondent's position that the learned trial judge properly addressed her nlind to the import of section 97 (2) (b) .and (4) of d,e Electoral Process Act, hence arriving at lhe correct decision that the conduct that section 97 (2) (b) of the Electoral Process· Act applie1, to in determi_ning whether or not to annul arl election is that (')f the Electoral Cornrr1ission of Zambia and its pt'ficers. .e 7 The f~espondent thus argued that section 97 (2) (b) of the Electoral Process Act relates to the conduct of elections by the Electoral Commission of Zambia. Further that seGtion 97 (2J (b} of the Electoral Process .Act does not apply in, the circumstances ' or of this case as per guidance given by this Court in the. cases Austin C. Milambo v Machila Jamba and Sibongile i-2 Mwamba. v Kelvin M. Sampa and Another8 The Respondent • therefore µrgecl us to uphold the decision of the lower courL 7 7 Further, in urging us to dismiss the Appellant's appeal, U,e Respondent invited us to consider the .import anc;I practical effects of the case of Webster Chipili v David Nyirenda13 in which the Supre1ne Court laid dovvn an important prmciple that in order to irwok:e section 93 {2) (b) of the Electoral Act No. 2 of 2006 (similar to section 97 (2) (b) or the Electoral Process Act), the lower court was required to review the acts or omissions of election officers in the conduct. of the election in order to determine whether the election was conducted so as to be s1..1-bstantially in accordance with the provisions of the Act and whether such acts or omissions did affect the result of the election. J25 • • 7,$ The Respondent.submitted that no evidence whatsoever was led to show that the Electoral Commission of Zambia was culpable in the inanner ip which it concl.uctecl lhe by-election in Sesheke Constituency. ?. 9 The Respnndent subm,ilt.ed that in temis of section 97 (4) o( t.be Electoral Process Act, the burden lay on the Appellant to riot only plead but. also to prove to the requisite standard of a fairly high degree of convincing clarity that the:: 8lectoral Commission of Zambia's officers charged with conducting the eleetion, as a whole did not do so substantially in accordance with the provisions of the law. 7 to That the Appellant Jailed in all material respects to satisfy the mandatory Tequirements of section 97 (2) (b) <=1S r-ead with subsection 4 by reason of bis failure to show that Lhe conduct or c01nnlained of was that the Electoral Cornrnission of Zambia and to establish tha~ there was substant:iaJ non-complianee witl1 the Electoral Process Aet in the conduct of the election on the part of the Electoral Commission or-Zambia's officers. J,Zi., 7 ,i l 'l'be Respondent submitted that as such, the Appella,11t's case in the court beiow quite correctly failed both in terms of the formal requir,ernents which the Appellant failed to satisfy but a1so on account of the sheer lack of pr-oof that the Appellant was required to prove by law. 7 ·1 2 It was sub1nitted that,. the Appellant's failures cannol forro the basis upon which this Court can strike down section 97 of the Ar.1 fot beirrg unconstitutional as prayed by the Appellant. 7.I3 Pttrlher· that, to the conl'.rary, 1n the absence of clear anct dee1sive evidence to demonstrate lha.1 the conduct of the election by the Electoral Cornrrtission of Zambia was so devoid of merit and so distorted that there were profound in·egularities in the management of the election" the lower court was entitled on the authority of Raila Odinga and five others v Independent Electoral and Boundaries Commission and 3 Others14 to presume that the election was conducted rightly and Tegularly notwithstanding the actions or omissions of other m players the electoral process. 7. 14 The Respondent argued that there was no evidence before the lower cour1 to enable it to assume Lhe contrary. That in fact, fue evidence on record ,showed t.he converse which was that the Electoral Commission of Zambia made an assessment of the situation when it issued the press release and based on its mandate to. conduct elections, went ahead with the by-election. 7.15 The Respondent s ubmitted that the only inference thal the lower court and this Court could anive at. when faced with the foregoing evidence on secord is Lhat the Electoral Comm-ission of Zambia detennined that allowing the Election to go ahead would not entail any substantial departure in the conduct of the election to warrant i1.s being called off. 7 .16 In concluding on this point, the Respondenl argued thal this Court has guided par.ties in a surfeit of appeals that arose aft.er the 2016 set of laws were promulgated to put such parties on guard as to what threshold a petition must attain 1f it is to be upheld. '11:Jat the .Appellant's failure to heed to such guidance was done at his own peril and. cannot be the basis u pon which to sttil<e down section 97 of the Electoral Process Act. 7 ,1'7 "J'he Respondent therefore· called upon tlS Jo uphold our earlier :interpretation of section 97 (2) (b) of the Electoral PrfJcess Act. 7 .18 That given the terms in which Article 229 (2) of the Constitution as amended is cast, section 97 (2) (b) of the Electoral Process Acl does not violale Article- 45 of the Constitution as it merely gives effect: to the requirement under Article 229 (2) of Lbe Constitution thaL elections should be conducted by the Electoral Commission ofZa111bia. 7 19 'The Respondent, therefore, subtnitted thaL ground one of the appeal lacks merit and ought to be dismissed. 7.20 As for the Appellant's second ground of appeal regarding the or applicability of the case Josephat Mlewa v Eric Wightman5 to cases under the current electoral laws, the Respondent submitted fhat he need not belabQU'f t.he point as tlii's Coun. has clearly pronounced itself on that case and Lhal the lower court J19 • was bound by the guidance of the Court and was thus on firm ground when IL abided by this Court's guidance. 7 .21 The Respondent particularly caJled to aid the case tJf Nkandu Luo and Another v Doreen Sefuke IVIwamba and Attorney General6 where we st.ate-cl as follo\vs: ''The .7s, Respondent hud brought to our attention the holding in Mlewa v Wightman as re.fleeted al page 424 of the record of appeal, to the effect thai it. does n.ot mat:ter who the wrongdoer is. Our Jinn position. is that that argLlment is nut te11able under t,he CLJITen.t electoral law as espoused in section 97(2) of the Act and iue accordingly discoun.t iL '' 1 22 The Respondent argued that U'll.! present c.ise is on all fours with Nkandu Luo and Another v Doreen Sefuke Mwamha and Attorney General6 in so far as t:be import of section 97 (2) (b) of the Electoral Process Act is concerned. The Respondent. urged this Court bO equally discount the argurrien t. 0f bringing in the holding in t.heJoseph Mlewa v Eric Wightman5 to t.he current J3U • electoral laws .. Further, that the attempt by the Appellant to have the election of the Respondent arm ulled on account of the ·actions of third parties is not tenable al law. 7.23 The Respondent submitted that the Appellant ignored equally instructive precedents of the Suprenie Cour1· such as the cas<.:. of Akashambatwa Mbikusita Lewanika and Others v Fredrick Chiluba3 which was decided after Josephat M1ewa v Eric Wightman5 case· 0,11d established tbe principle that 1h e malpractice complained uf must be attributable to the Respondent and further i:hat where the flaws complained of affeet: both parties in equal measure RS t.he J\ppella:nt sou_ght to suggest in casu, they cannot be the basis for ru1nulment. 7 ,24 The Respo11dent sul:nnitted that the Appellant's suggestion lhal pa_rlian1e:nL could not have intended sec~ion 97 of the Electoral Process Act to operate in the manner that it does flies it, t.he teeth of this. Court's interpretation of sect.ion 97 of the Electoral Process Act. which bas beeh applied consiste11Uy in previous .H'J • election pet.it.ions and appeals since the current legal regime came intG place. 7,25 The Respondent's prayer was that the ::ippeal lacks merit and ought lo be dismissed .. .8.0 Oral arguments by the parties 8.1 i\t the hearing of the appeal, Ivlr. ,Jalasi, counsel for Ll:'le Appellant opted to rely solely on the filed written argument...:i. 8.2 Mr. Hai1ube. counsel [0r the Respondent, augn1e11ted the Respondent's w.ritten arguments with oral submissions. 8.3 ln his oral. arguments, Mr. Haimbe, submitted that lhe authorities on when a court can dcpar1 from its previous decisions are v.ery clear and that can only be done under compelling reasons where lt can be clearly shown thal the previous decisions wen~ wrong. The Supreme Cour1~ case of Mat.ch Corporation Limited and Development Bank of J32 • • Zambia v the Attorney General15 was cited as authority for this proposition. 8.4 That previous decisions of this Court are clear as regards section 97 (2) (b) of the Electoral Process Act to the effect that the cG.nduct of the election 1·eferrecl to thcre'in is that of the Electoral Commission of Zambia. 'That the Appellant in this case has not demonstrated in any way that U1e previous decisions of this Court ·were wrong to warrant rh.is Court's departure from the set priuciples that were clearly laid ont in those decisions. F'urlher, that there is notl1ing in the Appellant's arguments bef01,e this Court to S1-lggest that thei'c is any cornpeLI.ing reason why this Court should depart frorn its previous decisions. -8.5 The Responden1 submitted further that the Electoral Cornmission of Zambia was the· only party that couid have attested to the fact of whether or not t'.he conditions as .set in section 97 (2) (b) and (4) of the Electoral P,ocess Act for conduct of an election had been fulfillud. '!'hat having failed to join the 8lecroral Com1nission ofZw.nbia to the pi:oceedings in lhe lower , • court, the Appellant's case was fatally flawed. That tl1e learned trial judge was therefore on terra firma ultu-natdy when she dismissed the petition. 8'.6 ln response to the a,gument by the Appellant that section 97 of the Electoral Process Act ought to be struck out as being unconstitutional, ii was the Respondent's submission that as could be seen from pages 13 to 33 of the record of appeaJ. (volume l ), which was !'he petition before the lower couri, the Appell.ant cannot at this stage of the proceedings sneak in this prayer for consideration given I.bat it was not one of the matters which was pleaded in the court below. 8.7 In his brief response 1.0 oral argumenls by Mr. Haimbe, Mr. Jalasi referred us to tl1e case of Motor Holdings (Z) Limited v Raj Raman16 and argued that this Court follows its own prev1ous decisions and can only depart from that in subsequent. cases for a good cause. It was his submission that the arguments before Court justify the reasons why U,e Appellant seeks to clistinguish this appeal fron, previous decisions and .J34 .. that tnis Court sh0uJd depart from its previous decisions ~s or regards interpretatio11 section 97 (2) (b) of the ,Electoral Process Act i.u light of the Supreme Court decision in Josephat Mlewa v Etic Whitman.5 8.8 On the .issue of slriking out Section 97(2) (b) of che Sl~croral Process Act and the argument that this aspect cannot be ·entertained by this Court as it was nol pleaded in the court below, Mr. Jalasi submitted that the application to have section 97 (2) (b) of tbe Electoral Process Act struck out for being unconstitutional was a point of law which could be raised by a party ~1l any stage of the proceedings even when it was not pleaded In the court below. He cited the case of Re Thomas Mumba v The People17 to support his argument. 9 .0 Analysis of the appeal and decision 9.1 We have given thoughtful consideration to the groun ds of appeal, written and oral submissions for and against tl1e J35 ' appeal. We have also exhaustively considered Lhc judgment of the lower court and the evidence on record. 9.2 The appeal before us raises two grounds both of which seek to challenge the findings on the-point .of law and fact of the lower court. These grounds are set out al paragraph 5.1 in this judgment. 9.3 The key questions in this a:ppeal are therefore: i) Whether o, not the learned tdal court correctly held tha.t section 97 (2) (b) of the Electoral Process Act exclusively goven1ed the activities of the Electoral Commission of Zambia; and ii) Whether the learned trial judge erred in law when she held that the Supreme Col.art. ca.se of Josephat Mlewa v Eric Wigh,tman5 h.as restrictive application in rhe current electoral legal regime. J36 9.4 In addressing ground one of the appeal, it is imperative t0 reproduce l he findings of the lower court in respect of the import ,0f .section 97 (2) (h) of the Electoral Process /\ct. The trial judge in her judgment al page ,/236 to ,1237 held as follow: "section. 97 (2) (/;J) addresses acts· of non-compliance witlt the pror.ri.;;ions of the act in the conducr of elections u1hieh ha.s an. effect 011. the ,·esults of the tf3{~ctions ......... ,The provision seems to suggest. that it specifically relcites to the conduct of elections. Article 229 (2/(b} of the Constitution as urn.ended by Act No. 2 of 2016 vests power to <.;onduct elections in the Electoral Com.mission of Zambia. {f that is accepted it follows that section 97 (2) {b) relat.es 1.0 the discharge'Ofthe Electoral Com,nission oj'Zambfa'sfunctions during an election. This position is sorn.e/'tow made clear by £he fact th.at section 97 (2) (b) is subject to subsecli<Jn (4) which provides that an electiori, wilf not be declared void due to Act or omission. of a.n. eiection. officer in breach of his o.fjicial duties m relation fa the conduct qf the ' ,, e l ectwn. ......... . ,J?,7, 9.5 In arriving a l her decision, the learned Lrialjudge !oak guidance frorn decisions of this Court in the cases of Giles Chomba Yamba Yamba v Kapembwa Simbao and Others1u and Sibongile Mwamba v Kelvin M. Samp a and Another8 , 9.6 We nnte that thas appeal comes at a time when we have had occasion to pronounce ourselves on key aspects of l11e current. elecit>ra! lega.1- regime particularly provisions of secfion 97 (2) of r.he Electoral Process Act. fn the case of Nkandu Luo and Another v Doreen Sefuke Mwamba and. Attorney Ge.neral6 . We guided lhal Section 97 (2) of the .Electoral Process Aot 1s central to the judicial resolution of clecloral dispules~ 9.7 in the ca:se of Giles Chomba Yamba Yamba v Kapembwa Simbao and Others10 we examined in detail .t.be provisions of secLinn 97 (2) (b) of the Electoral Procr:ss Act and pronounced ourselves as follows: "Il is un.equhJoc;al th.at section 9 7 (2) {b) re/at.es to non. corripliarwe with the provisions aft he law in the ·'conduct of elections~. It calls for the annufinent of elections in the event BS • that th.ere has been rwn.-comptiarice with the principles lpicl down in the Electoral Process Act in asJ ar as the con.duct of elections is concerned. Tire questwri then arises, 1-uho has con.du.ct of elections? The answe,~ in our viei.u, lies in Article 229 (2) (b) oft he Constitution of.Zambia. fl reads: "(2) Th,e Electoral Commission.shall. .. ..( bj conduct elections o.n.d referenda" Th.us, the Con.sli.t:1J tion expressly gives the function to conduct elections to the Electoral Com,nission of Zambia (ECZ). ,. .. Section 97 (2) (b), therefore, concerns rwn,, compliance to the provisions of1,he A~t by the ECZ., the body charged with the conduct of elections under Article 229 (2) (b} of the Constitution, and not the eandidates to an electio11. llr their agents." 9.8 Further, lb the case .of Austin C. Milambo v Machila Jamba12 we stated as follows: ''As we st(.t.tecl in. the case of Sibongile 1VJwamba. Kell)in Sampa, section 97 (2) (b) of the Act re/ales to t'he conduct of election.s by the Blectoral Commission of Zambia. 1,uho .are not I?espolldents in this mailer and as such the provisions IJ9 • of section 97 (2) (b) do not apply in the circumstances, vlle not do agree wi'th the Appellant's argum.ent that lhe com.mission of corrupt and illegal pTaclice.s or other misconduct amounts to non,compliance 11.11'th the Act within the contemp/'ation of section 97 (2) (b}. To take such o uiew woi.Jld, in effect, amount to establishing ttuo threshold.sfor the n1Jl/ijication of an election based on the same facts which could not have been the intention. of Parliament. Fw1.her, l'O take section 97 (2) (b) us being open. ended in tenns of applicability would in our view create ar'J, absurdity in vieiu ofA rticle 229 of the Constitu.tiori as amended 1.uhen. read together 1;11ith section 97 (2) (b). » 9.9 In our recent .deci~ion in the case of Margaret Mwanakatwe v Charlotte Scott and the Attorney General11 we equally guided as foll0.vs: "ft is clear to us that section 97 (2) (b) u,h.ich is set out above relat.es to rwn-complian.ce wilh the proviszons oft.he Act in. J4U • • the con.duct of the election in issue and I.hat the non compliance has affected the electiQn result." 9 ,10 We nave addressed our minds to the previous decisions of this Court as regards section 97 (2) (bl of the Electoral Process Act, our view is that the interpretation we have given in our earlier decisions is sound ·and that is the cw-rent position of tile Jaw. 9.11 It is therefore, our position tha t the trial judge was on furn ground When she correctly held that section 97 (2) (b) Telates t:o the discharge of the Electoral Commissiun of Zambia's functions during an election. Ground one of the a?peal lacks merit and fails. 9.12 The second ground oJ appeal attacks the trial judge's holding that the Supreme Court case of Josephat Mlewa v Eric Wightman> has restrictive application. Tt was the Appellant's submission that the learned trial judge's holding was lo the effect thaL the case was inapplicable to th<::. current electoral laws or that it had been overruled by legisla.tive interv.enhon. J41 • • The Appellant's submission was lb.at the. prov1s1ons of the current section 97 of the Efectoral Process Act had substantially remained the same since th!:! provisions of -section l 8 of the Electoral Act No. '2 of 1'991 whose inlerpretation was given in Josephat Mlewa v Eric Wightman. 5 9, 13 We have considered the holding of the fower court on this issue. The learned trial judge when referred to the case of Josephat Mlewa v Eric Wightman5 opinecl as follows: ''With respect to the argument on ihe ranking of· the Constitutional Court UJith the Suprem.e Court, il 1s nol in. dispute that the two rank par'i passu. However, I do not think thal ii was lhe intention ofth..e Constitutional Court to overrule the decision of the Supreme Court in the case of Joseph.al Mlewa vs. . Eric Wightman as suggested in. th.e submissions but rather was gil)in.g inr.erpretation to lhe current electoral law,,; • 9.14 The ground of appeal suggesting 1·ha.1 the tri(1l juctgc had held that the case of Josephat Mlewa v Eric Wight man5 has restrictive application to the current electoral laws is therefore 1nisplaced. The tri-al judge did not in any way slate that the Josephat Mlewa v Eric Wightman5 hadrestri'ctive application in the current clccluraJ laws. To the contrary, when referred to Josephat Mlewa v Eric Wightman\ the trial judge correctly found that this Court has given an interpretation to the current electoral laws. 9. I 5 The Appellant has argued tbat the Josephat Mlewa v Eric Wightman5 case is still good law on the premise that section 97 (2) (b) of the Electoral Process Act. is subs1.ant.ialty sin1ilar to section 18 (2) of the rep.ealed Electoral Act No. 2 of 1991 on wluch Lhe Josephat Mlewa v Eric Wightman5 case was determined. 9.16 In regard to that argument, lt is our posit1on that tlris Court has already pronounced itself on U·1e issue in various decisions of this Col.Lrt. In the case of Nkandu Luo and Another v Doreen Jt\3 ' Sefuke Mwamba and Attorpey General6 we t,eld inter sJia as follows: ''The Jst Responden.1. had hrou.ght to our atten.1:ion. the holding inMlewa v Wightman as reflected at page 424- of tke record ofa ppeal, to the ~/feet .that iL does not matter who the wrongdoer is. Ou.r firm position is that that argunieni is not tenabie under the current electoral law as espo~sed in section 97(2) of lhe Act and 1.oe accordingly discount it." 9 . .l 7 hJ the more recent case tif Mwenya Musenge v Mwila Mu tale and Another, 18 we aptly put it as follows: ''Section 18 (2) (a) of the Elecloral Ad of 1991 upon iuhich. the M[ewa case was decided no lol'lger ex.isls in our sta.lut.e book and as such does not apply in this case to the e:xtenl of !he inconsistency uJith the cun-enl Electoral Process Act." 9. 18 Vie emphasizl!. that our deeisions in Nkandu Luo and Another v Doreen Sefuke Mwamba and Attorney GeneraJ4 and J~4 . • ' • Mwenya Musenge v M.wila Mu,tale and Another18 have elucidated the current electoral legal 1·egime. Simply put, the· holding in the Josephat Mlewa v Eric Wightman5 was based on section 18 (2) of the repealed (emphasjs added) Electoral Act of 1991 and therefore, cannot be applied in election per_itions post 2016 to the extent of the inconsistency w1t11 lhe cu1Tent Electoral Process Act. 9. J 9 In view of ·what ·we have· said, we find that the learned tiial judge was bound by the guidance gi'ven by this Court on the status of Josephat Mlewa v Eric Wightman5 and lhl:LS correctly followed that guidance. We therefore, find that ground two of U1e appeal lacks substance and also fails. 9,20 The Appellant rather in passing ~libmitted that we should sr.rike out section 97 (2) of lhe Electoral Process Act. for being unconstitutional. vVe agree with I he Respondent that this issue v1as not pleaded in the court below and was only introduced at appeal sta,gc. 1'bis is not tenable. )45 . ., • • 10.0 CQnclusion 10. l The two grounds of appeal advanced by the /\ppellanl have failed and therefore, lhe entire appeal fails. Accordingly, we sustain llie decision of the lower court and declare that the Respondent, Mr. Romeo Kangombe was duly elected as Member of Parliainent for Seshel<e Constituency, 10.2 As we conclude, we wish to restate that we frown upon and strongly condemn all forms of electoral violence. Elections ru-e a civilized way of participation of citizens in the governance of the counhy. Electoral violence diminishes the National Values and Principles enshrined in Article 8 of the Constitution. Therefore, free and fair ,elections are a cornerstbne of every democratic State tbat espouses its values. 10.3 We therefore, strongly urge the Electoral Comn1ission nf Zambia (ECZJ lo take necessary steps to curb the worrying culture of electoral violence in the Country. We take judicial notice that the ECZ has wide powers under the law to punish J4& . . ' ") • perpetrators of electoral violence which incJude but not limited to disqualification of a political party in breach of the ~lectoral code of conduct from taking part in an election. It's lime that such powers are invoked so as to preserve life, property, democratic values and principles. A copy of this Judgment will accordingly be sent to the ECZ. 10.4 'vVe order that each party bears own co::;ls of this appeal. ····························-····-·······-········· H. Chibomba J>RESIDEN'T' - CONS'l'ITLYl'JONAL COURT ,... ..... :-S-........... . 1 " ........ ..... 0 .. .....-.?. ....... ' ...... -. ~ M.S. Mulenga E. Mulembe CONSTITUTIONAL COURT JUDGE CONSTITUTIONAL COURT ,JUIJGE #ft, ................ ~:~.--:-:-................ Prof. M.M Munalula CONSTITUTIONAL COURT ,JUDGE )1)7