ELECTORAL JUSTICE IN ZAMBIA Resolving Disputes from the 2016 Elections and Emerging Jurisprudence

ISBN 978-1-920446-66-6

9 781920 446666 Electoral Justice in Zambia Resolving Disputes from the 2016 Elections and Emerging Jurisprudence

i Published by EISA 14 Park Rd, Richmond Johannesburg South Africa

P O Box 740 Auckland Park 2006 South Africa Tel: 27 11 381 6000 Fax: 27 11 482 6163 Email: [email protected] www.eisa.org.za

978-1-920446-66-6

© EISA 2017

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of EISA.

First published 2017

Printed by Corpnet, Johannesburg ii Acknowledgements EISA is indebted to the lead consultants, Francis Kondwelani Mwale and Isaac Mwanza, as well as their research and editorial team made up of Melba Diana Lutangu, Peter Mpande and Jeremiah Phiri, for undertaking the research.

EISA is also grateful to Denis Kadima, EISA Executive Director, Catherine Musuva, EISA Zambia Country Director, and Abdon Yezi, Senior Programme Manager, Zambia Accountability Programme (ZAP), for providing technical support.

We also extend our heartfelt gratitude to the Chief Justice of the Republic of Zambia, Judges of the High Court of Zambia and the Office of the Chief Registrar of the High Court of Zambia for their valuable contribution.

EISA deeply appreciates the grant from ZAP – funded by UK Aid and managed by the British Council – which made this research possible.

iii Contents

Acknowledgements iii Abbreviations vi Executive Summary vii Chapter 1: Introduction and History of Election Petitions in Zambia 1 1.1. Introduction 1 1.2. Objectives of the Study 2 1.3. Basis of Election Petitions 2 1.4. History of Presidential Election Petitions 3 1.5. History of Parliamentary Election Petitions 5 1.6. Conclusion 6

Chapter 2: Laws Pertaining to Election Petitions and Other Electoral Dispute Mechanisms 7 2.1. Introduction 7 2.2. The Constitution of Zambia 8 2.3. The Electoral Process Act No. 35 of 2016 10 2.4. Administrative and Judicial Electoral Dispute Resolution Mechanisms 11 2.5. Conclusion 14

Chapter 3: An Analysis of the 2016 Presidential Election Petition 15 3.1. Introduction 15 3.2. The Happenings after Filing of the Petition 17 3.3. The Final Verdict 19 3.4. Analysis of Some Issues Arising from the Petition 21 3.5. Conclusion 28

CHAPTER 4: An Analysis of the 2016 Parliamentary Election Petitions 29 4.1. Introduction 29 4.2. Parliamentary Election Petitions Nullified after Trial 29 4.3. Parliamentary Elections Petitions that were Dismissed after Trial 30 4.4. Appeals in the Constitutional Court 32 4.5. Reasons for the Election Petitions and Reliefs Sought 35 4.6. Processes before Courts Arrive at Decisions 35 4.7. Electoral Act of 2006 (Repealed) v. EPA of 2016 on Rendering Elections Void 37 4.8. Synopsis of the Decisions of the High Court 41 4.9. Conclusion 46 iv CHAPTER 5: An Analysis of the 2016 Local Government Election Petitions 47 5.1. Introduction 47 5.2. Filing, Service and Response to Petitions 48 5.3. Allegations 49 5.4. Remedies 50 5.5. Local Government Election Petition Statistics 50 5.6. Conduct and Outcome of LGE Petitions 51 5.7. Analysis of Tribunal Judgments 59 5.7.1. On the Burden of Proof and Observations 59 5.7.2. On Evidence 60 5.7.3. On Witness Testimonies without Supporting Evidence 61 5.7.4. On Rules of Procedure 62 5.7.5. On Illegality and Fraud 63 5.8. Conclusion 64

CHAPTER 6: Conclusion and Recommendations 66 6.1. Introduction 66 6.2. Recommendations 68 6.2.1. The Legal Framework (Chapter 2) 68 6.2.2. Presidential Election Petitions (Chapter 3) 68 6.2.3. Parliamentary Election Petitions (Chapter 4) 69 6.2.4. Local Government Elections Petitions (Chapter 5) 69 6.2.5. ECZ 70

Annexes on Local Government Petitions 71 Annex 1: Elections Upheld and Petitions Dismissed 71 Annex 2: Elections Nullified and Claim Upheld 73 Annex 3: Petitions Withdrawn or Abandoned 74 Annex 4: Appeals to the Constitutional Court 75

v Abbreviations AG Attorney General ANCP African National Congress Party CMC Conflict Management Committees DA Democratic Assembly DPP Director of Public Prosecutions ECZ Electoral Commission of Zambia EISA Electoral Institute for Sustainable Democracy in Africa EPA Electoral Process Act FDD Forum for Democracy and Development IT Information Technology LGE Local Government Elections LGET Local Government Elections Tribunal MP Member of Parliament PAC Peoples Alliance for Change PF Patriotic Front S.C. State Counsel UNIP United National Independence Party UPND United Party for National Development UPP United Progressive Party YALI Young African Leaders Initiative

vi Executive Summary

This research report was commissioned by the Electoral Institute of Sustainable Democracy in Africa (EISA) following the 11 August 2016 general elections in Zambia with the aim of contributing to stronger election dispute resolution mechanisms in the country. The report documents, reviews and analyses the courts’ decisions of the 2016 election petitions, and examines emerging jurisprudence. It also provides recommendations for electoral justice in Zambia.

Chapter one provides an overview of election petitions in Zambia from a historical perspective. It shows that losing candidates and aggrieved citizens have had the right to petition the outcome of elections in the courts. The first presidential election petition was filed in 1996 and the first parliamentary election petition dates back to 1968. Zambian courts have frowned upon candidates who secure an electoral victory using illegal and corrupt means that undermine the integrity of the electoral process. Furthermore, they would not nullify elections on mere findings of some irregularities or flaws associated with electoral systems except when it is demonstrated that such flaws have a direct bearing on the people’s popular choice of the candidate.

Chapter two analyses the country’s legal framework for election petitions and the administrative and judicial mechanisms for dealing with electoral disputes. The Constitution of Zambia requires that elections are free from violence, intimidation and corruption and that the electoral process ensures accountability, efficiency and transparency as well as timely resolution of electoral disputes. The provisions of the Electoral Process Act (EPA) set very high standards for adjudicating bodies when determining when and when not to nullify an election. Section 97(2) of the Act requires that the petitioner must prove as alleged, and be able to show that the alleged breach was committed by or with the knowledge of the candidate or his agent. Upon such proof, the Court ought to satisfy itself that the alleged breach of the electoral law prevented the majority of people who voted from voting for a candidate of their choice.

Chapter three analyses the petition challenging the election of the Patriotic Front (PF) candidate, Edgar Chagwa Lungu, as president following the August 2016 polls. The petition filed by the United Party for National Development (UPND) presidential candidate, Hakainde Hichilema, was disposed of on a technicality based on Article 101 and 103 of the Constitution, which sets the time limit for hearing a presidential election petition at 14 days. The chapter interrogates whether 14 days is sufficient to

vii hear an election Petition of such magnitude, prominence and importance. It concludes that consideration should be given to increasing the time limit without creating a leadership vacuum, as this would have an adverse effect on the entire country.

Chapter four examines the decisions arrived at by the High Court on the 86 parliamentary election petitions filed by losing candidates after the 2016 elections and the issues they raised. Out of the 86 petitions, 23 were withdrawn or discontinued, four were dismissed at a preliminary stage, 53 were heard and the elections upheld, and six were held and the elections nullified. The chapter concludes that the High Court Judges were on firm grounds in their findings when arriving at their decisions.

Chapter five analyses the 58 petitions filed before various Local Government Election Tribunals (LGETs), which also had to make determinations in line with the provisions of Section 97 (2) of the EPA. The chapter notes that some of the candidates who opted to withdraw their petitions recognised the difficulty in the burden placed on them to prove that either the candidate or official agents were directly involved in the breaches or had knowledge. This leads to the conclusion that some petitioners who opted to withdraw their petitions viewed the Petition process as merely academic, while in some of the Petitions that went to trial and were dismissed, the petitioners could prove only one claim of the required three. The chapter also highlights the failure of candidates to settle electoral disputes through the Conflict Management Committees (CMCs) established by the Electoral Commission of Zambia (ECZ).

Chapter six provides 17 recommendations for enhancing electoral justice in Zambia. It is hoped that these recommendations provide a useful basis for future engagement of the country’s electoral stakeholders on issues related to election dispute resolution, as it is a critical component of the electoral cycle.

viii Chapter 1

Introduction and History of Election Petitions in Zambia

1.1 Introduction

Zambia held its sixth general elections since its return to multi-party democracy on 11 August 2016. Mr Edgar Lungu was re-elected into office based on the majoritarian system as provided for in the Constitution of Zambia, 1991 as amended in 2016. The polls also saw the election of 156 Members of the National Assembly and the direct election of 103 Mayors and Council Chairpersons by the Zambian voters rather than the internal election by fellow Councillors that existed before the Constitutional amendment. A total of 1,640 Councillors were also elected to various City, Municipal and District Councils in the Local Government Elections held simultaneously with the Presidential and Parliamentary Elections.

Following the 11 August 2016 polls, attention shifted in the post-election phase to the various Election Petitions which were filed in the Courts contesting the outcome of the elections at Presidential, Parliamentary and Local Government levels. From 19 August 2016 to 31 December 2016, a total of 145 Election Petitions were duly filed and heard by the Constitutional Court, High Court and Local Government Election Tribunals.

The Petitions included a Petition for the Presidential Election filed before the Constitutional Court by Hakainde Hichilema and Godfrey Bwalya Mwamba of the United Party for National Development (UPND) but was dismissed for want of prosecution due to time limitations as stipulated in the Constitution. The others were 86 for Parliamentary Elections and 58 for Local Government Elections. A summary on how different adjudicating bodies heard and determined these Petitions is provided in Chapters 3 to 5 of this Report.

1 1.2 objectives of the Study

This research was commissioned to document, review and analyse the Court decisions from the 2016 Election Petitions and analyse the emerging jurisprudence. The overarching objective of the study is to contribute to stronger electoral dispute resolution mechanisms in Zambia.

The specific objectives were to:

i. document, review and analyse the Court decisions on the 2016 Election Petitions; ii. examine prominent issues around the Petitions such as the conduct of the Judges, validity of the judgments and trends in the decisions among others; iii. assess the extent to which the Election Petitions process met the principles of electoral dispute mechanisms; iv. highlight key issues for the appeals process; and v. provide recommendations for electoral justice in Zambia.

1.3 basis of Election Petitions

The Constitution of Zambia1 provides for a legal regime that allows political parties, candidates aspiring for different offices and citizens with voting rights to Petition the nomination of candidates and election results, if not satisfied. After elections, Zambian Courts and Tribunals continue to adjudicate Election Petitions filed at Presidential, Parliamentary and Local Government Election levels. A detailed analysis of electoral dispute resolution mechanisms and electoral cycle is provided in Chapter 2.

With the reintroduction of a multi-party democratic system of electing leaders, a new challenge of electoral disputes and how to resolve these disputes has emerged, which has placed Zambia’s judicial system at the epicentre in the resolution of these disputes. From 1991, Zambia has seen an increased number of election Petitions filed after each election.

Disputes are inherent to any electoral process and it is therefore imperative to develop effective dispute resolution mechanisms that lead to electoral justice and contribute to credible elections. Zambia has an existing legal framework that

1 CAP 1 of the Laws Zambia, Constitution of Zambia, 1991 as amended by Act No. 2 of 2016

2 establishes Courts and non-judicial structures for delivering electoral justice before, during and after elections. The legal framework for disputes related to election results includes the newly established Constitutional Court by the amended Constitution of 2016, the High Court and Local Government Election Tribunals (LGETs).

1.4 History of Presidential Election Petitions

The first-ever presidential election Petition was filed in the Supreme Court of Zambia in 1996 in the case of Akashambatwa Mbikusita Lewanika, Hicuunga Evaristo Kambaila, Dean Namulya Mungomba, Sebastian Saizi Zulu, Jennifer Mwaba v. Frederick Jacob Titus Chiluba.2 In this case, the five Petitioners challenged the election of the Respondent as President of Zambia on 18 November 1996 on the grounds that he was not qualified to be a candidate for election as President and be elected because neither Dr Chiluba nor his parents were citizens of Zambia by birth or by descent as required by Article 34 (3) of Schedule 2 to the Constitution of Zambia.3 The Petitioners also alleged electoral flaws in the electoral system, and asked for the annulment of the election on the ground that it was rigged and not free and fair.

This Petition was dismissed for being frivolous and not supported by evidence. The Supreme Court of Zambia noted:

The elections while not perfect and in the aspects discussed quite flawed, were substantially in conformity with the law and practice which governs such elections; the few examples of isolated attempts at ‘rigging’ only served to confirm that there were only a few superficial and desultory efforts rather than any large scale, comprehensive and deep rooted ‘rigging’ as suggested by the witnesses who spoke of aborted democracy.

In 2001, the second Presidential Election Petition was brought before the Supreme Court of Zambia over the election of Levy Patrick Mwanawasa, S.C. by three Petitioners, each Petitioner filing a separate Petition. The three Petitions were consolidated into one Petition on 31 July 2002 as appears in the case of Anderson Kambela Mazoka, Lt General Christon Sifapitembo, Godfrey Kenneth Miyanda v. Levy Patrick Mwanawasa, the ECZ and the Attorney General4 in which the Petitioners

2 S.C.Z. Judgment No. 14 of 1998 3 Constitution of Zambia (Amendment) Act No. 18 of 1996 4 (2005) Z.R. 138 (S.C.)

3 petitioned the election of the 1st Respondent as President on grounds that the election was fraught with general and notorious bribery, corrupt and illegal practices as well as misconduct by reason of which the majority of the voters were or may have been prevented from electing a candidate of their choice and were therefore disenfranchised.

The other ground was that the election result was pre-determined or pre-arranged by Levy Patrick Mwanawasa and/or his agents in Levy Patrick Mwanawasa’s favour and therefore was contrary to the spirit of upholding the value of democracy, transparency, accountability and good governance and hence was a sham and was null and void.

The Petitioners also alleged that the Electoral Commission of Zambia (ECZ) was negligent and failed to supervise or superintend the Election in accordance with the Electoral Act and its Regulations, thereby facilitating the illegal and fraudulent conduct of several of its officers such as the opening of ballot boxes, or allowing them to be opened, in the absence of interested parties and deliberately transporting ballot boxes without seals and unaccompanied by agents of Parties.

In its Judgment delivered on 16 February 2005, the Supreme Court determined and declared Levy Patrick Mwanawasa to have been duly and validly elected as President of the Republic of Zambia while noting, as in the earlier case of Chiluba, that:

We are satisfied, on the evidence before us, that the elections, while not being totally perfect as found and discussed, were substantially in conformity with the law and practice. The few partially proved allegations are not indicative that the majority of the voters were prevented from electing the candidate whom they preferred; or that the election was so flawed that the dereliction of duty seriously affected the result which could no longer reasonably be said to reflect the true free choice and free will of the majority of the voters.5

In summary, the Supreme Court set the tone that while the Court would frown upon illegal or corrupt practices, it would not always be the Court’s finding that illegalities would always result in the nullification of elections, especially if there is insufficient proof that the majority of voters were prevented from voting for candidates of their choice. These principles have been recognised in the development

5 Supra Note 8 at 171-172

4 of electoral laws over a period of time and, as such, the Courts would be hesitant to declare elections null and void if the other ingredients were not proven to the satisfaction of the Court.

1.5 History of Parliamentary Election Petitions

Parliamentary Election Petitions in Zambia on the other hand have a longer history than Presidential Election Petitions and some of the earliest Parliamentary Election Petitions date as far back as 1968 such as the case of Re Three Election Petitions.6

Some losing Parliamentary candidates in the 1968 general elections also exercised their constitutional right to challenge the election of persons who were declared as duly elected. For instance, in 1969 a Petition was filed before the High Court in the case of Jere v. Ngoma7 in which Mr Wingford Kaliza Jere, who had intended to put himself forward as a candidate for the African National Congress Party (ANCP) for the Chipata West Constituency at the General Election, sought a declaration of Mr John Chiponda Chisamba Peterson Ngoma as void. The petitioner alleged that he was prevented by supporters of Mr Ngoma from duly lodging his nomination papers on Nomination Day, namely 26 November 1968. The High Court, when it ruled in favour of Mr Jere and nullified the election, stated as follows:

… I am therefore satisfied that on this (Nomination) day there were crowds of opponents of the petitioner stationed at the entrance to the returning officer’s office in order to prevent his (the petitioner’s) access to the office; that he was put in reasonable fear so as to prevent him approaching the returning officer to lodge his nomination papers, and that this amounted to misconduct. I therefore find that this behaviour of the crowd at the education offices on that day constituted misconduct as a result of which the majority of voters in the constituency of Chipata West were or may have been prevented from electing the candidate whom they preferred, contrary to section 16 (2) (a) of the Electoral Act, 1968 …

In Paul John Firmino Lusaka v. John Cheelo,8 the Petitioner, a losing candidate for the election to the National Assembly election for Kafue Constituency held on 12 December 1978, filed a Petition in the High Court alleging that the Respondent, Mr John Cheelo, was guilty of undue influence, threatening to use force, and bribery in different instances. On the evidence, the Court found the Respondent guilty of

6 1968/HP/EP/5, 21 and 22 (Unreported) 7 (1969) Z.R. 106 (H.C.) 8 (1979) Z.R. 99 (H.C.)

5 the illegal practice of bribery and, accordingly, the election of the Respondent was nullified.

It is worth pointing out that the grounds in these early Petitions are similar to recent and present-day Petitions and the reasoning of the Courts in either nullifying or confirming the election of Candidates has not changed much over the years.

More examples of recent Parliamentary Election Petitions of precedential value include landmark cases such as Josephat Mlewa v. Eric Wightman;9 Michael Mabenga v. Sikota Wina, Mafo Wallace Mafiyo and George Samulela;10 and Priscilla Mwenya Kamanga v. Attorney General, Peter N’gandu Magande.11

The Michael Mabenga and Priscilla Mwenya Kamanga cases went on appeal to the Supreme Court, while in the case of Priscilla Mwenya Kamanga the appeal was upheld and the election was nullified on grounds of misconduct. The appeal in theMabenga case was dismissed and the election was upheld and the ground of malpractices was dismissed.

1.6 Conclusion

It is clear from this chapter that losing candidates and citizens in general have had the right to petition the outcome of elections in Zambia. It is also clear that Courts have frowned upon candidates who secure an electoral victory using illegal, corrupt means and methods that undermine the integrity of the electoral process. It has also been shown that Courts would not nullify elections on mere findings of some irregularities or flaws associated with electoral systems, except when it is demonstrated that such flaws have a direct bearing on the people’s popular choice of the candidate. As can also be seen, Zambia saw its first Presidential election Petition only following the 1996 Presidential Election. Until Zambia moved from the “one-party participatory democracy”, which allowed Dr Kaunda to be the only candidate in a Presidential election, it was not possible to petition the outcome of the presidential election. Petitions are also associated with a multi-party democratic process that allows more than one candidate to contest elections.

9 (1996) S.J. 1 (S.C.) 10 (SCZ Judgment No. 15 of 2003) 11 (2008) Z.R. 7 Vol. 2 (S.C.)

6 Chapter 2

Laws Pertaining to Election Petitions and Other Electoral Dispute Mechanisms

2.1 Introduction

Since 1964, Zambia has enacted different laws to provide for how elections for President, the National Assembly and Local Government (district, municipal and city councils) ought to be conducted. Noteworthy is a pattern where almost every piece of legislation enacted appeared to be passed at a time when the preparations for elections at Local Government, National Assembly or Presidential level were at an advanced stage.

The making of new electoral laws has followed the consistent path associated with Zambia’s constitutional reform. The Electoral Act12 was framed to support relevant provisions contained in the 1964 Constitution as amended in 199613 which acknowledged the existence of political parties in the National Assembly by requiring a Member of Parliament (MP) to resign if he or she ran for election as a member of a party and subsequently left that party.14 Ever since, the Electoral Act has either been repealed or amended at every instance when the Constitution has been amended or repealed. For instance, the 1973 Constitution introduced the two-tier system of primary and final National Assembly elections, and following upon, another Electoral Act15 subsequently repealed and replaced the 1968 Act.

At every turn when the Constitution has been amended, there has been a shift in the electoral law affecting laid-down precedents that the Courts could have set before amendments and it will be seen, in Chapter 4, how the new electoral law has also affected old-age precedents. The constant changes in electoral laws, rules and

12 Act No. 24 of 1968 13 Act No. 47 of 1966 14 It was considered unwise for an MP who wished to retain his seat to change parties midstream because in the seven instances where this happened during the first Assembly, not even in one case were the electorate persuaded to follow their MP to his or her new party. 15 Cap. 19, 1973

7 regulations, shortly before or after each election, are not conducive to the creation of a uniform pattern over time in what the public would view as consistency by adjudicating bodies in the enforcement of electoral laws and upholding the principle of stare decisis, based on precedent. The amendment, repeal and re-enacting of electoral laws, as will be shown later, has a serious effect on how Courts and Tribunals determine electoral Petitions or indeed disputes.

2.2 the Constitution of Zambia

The Constitution of Zambia16 is the primary and principal source of electoral laws that govern the conduct of elections and resolution of electoral disputes. It comprehensively provides for the modus operandi for conducting elections in Zambia at all levels. Since 1964 to date, the Constitution of Zambia has been consistent in spelling out principles on the resolution of electoral disputes. These principles have been reflected in some Acts of Parliament and other subsidiary laws passed pertaining to electoral disputes.

Article 43 of the Constitution of Zambia17 requires that citizens must endeavour to register and vote, if eligible, in national and local government elections and referenda. The electoral system is anchored on the provisions of Article 45, which set principles and provide a legal framework for Zambia’s electoral system. Article 45 reads:

(1) The electoral systems provided for in Article 47 for the election of President, Member of Parliament or councillor shall ensure – a) that citizens are free to exercise their political rights;

(2) The electoral process and system of administering elections shall ensure – a) that elections are free and fair; b) that elections are free from violence, intimidation and corruption; c) independence, accountability, efficiency and transparency of the electoral process; d) timely resolution of electoral disputes.

16 Supra Note at 5 17 Constitution of Zambia (Amendment) Act No. 2 of 2016

8 Article 52 (6) explains in clear terms what happens to an election when one candidate resigns on his own accord, dies or becomes disqualified after having filed his or her nomination:

Where a candidate dies, resigns or becomes disqualified in accordance with Article 70, 100 or 153 or a Court disqualifies a candidate for corruption or malpractice, after the close of nominations and before the election date, the Electoral Commission shall cancel the election and require the filing of fresh nominations by eligible candidates and elections shall be held within thirty days of the filing of the fresh nominations.

It is surprising that a democratic constitution would provide for cancellation of an election and require the filing of fresh nominations in an instance where a candidate resigns on his or her own accord after successfully filing nominations. This scenario would produce conflict where, for instance, after filing of nomination in presidential elections, candidates conspire to cause postponement of elections through one resignation after another.

Article 55 allows persons to challenge, before a Court or Tribunal, the nomination of a candidate within seven days of the close of nominations. Under this provision, it is mandatory for the Courts or Tribunals to hear the filed Petition within 21 days of its lodgement and ensure that 30 days before the general elections, all such disputes are concluded and disposed of.

Under the Constitution, a person may also challenge the declaration of any person who has been declared unopposed within seven days of the declaration and the Courts or Tribunals are expected to hear and determine the matter at least 30 days before the general election.18

Important to the electoral process in Zambia is also Article 56 and Article 57 of the Constitution. The former sets out the election date, which is the second Thursday in August of every five years following an election, while the latter provides for the timeframe within which the election must be held in the event that a vacancy occurs on all levels of candidacy, apart from the Presidential by-election.

Other Constitutional provisions that have an effect on elections and petitions will be discussed in detail in the chapters to follow.

18 Ibid, Article 53

9 2.3 the Electoral Process Act No. 35 of 2016

The Electoral Process Act (EPA) is a key election legislation that derives its existence from the Constitution as provided for under Articles 48, 49 and 54. The Act has repealed and replaced the Local Government Elections Act19 under which the Local Government Elections were held and the Electoral Act20 under which Presidential and Parliamentary elections were held.

The Act gives guidance on the whole voting process in Zambia from the beginning to the end of the election process as well as dispute resolution mechanisms provisions before, during and post elections. It provides for registration of voters, and creates and ushers in election officers. Section 3 of the Act provides as follows:

Subject to the Constitution, the principles applied in the electoral system and process shall ensure the following:

a) equal and universal suffrage; b) no discrimination based on gender or disability when providing electoral services; c) transparent and credible electoral process; d) no special privileges accorded to a political party or social group, except for persons with special needs; e) no impediments to lawful inclusion in the electoral register; f) impartial voter-education programmes; g) access to polling stations for representatives of political parties, accredited local or international election monitors, observers and the media; h) secrecy of the vote; i) design of the ballot paper that promotes easy use; j) transparent and secure ballot boxes; k) impartial assistance to voters at the polling station; l) transparent, accurate and reliable vote counting procedure; m) proper management of invalid ballot papers; n) precautionary measures for transporting of election materials; o) impartial protection of polling stations; p) established procedures for lodging and dealing with complaints; q) impartial handling of election complaints;

19 Chapter 282 of the Laws of Zambia 20 No. 12 of 2006

10 r) impartial delimitation of electoral boundaries; and s) timely resolution of electoral disputes.

Section 110 of the Act provides for the Electoral Code of Conduct, breach of which may necessitate Election Petitions.

The new electoral law has a bearing on how Election Petitions are determined as opposed to the previous law. For instance, under this Act, once the Petitioner or claimant proves any one allegation on which his or her petition is based during the hearing of the election Petition, the burden of proof shifts to the Respondent to dispute the facts. The Act also requires the Petitioner to not only prove allegations being complained against but also show that the majority of voters in a constituency, district or ward were or may have been prevented from electing the candidate in that constituency, district or ward whom they preferred.

Part VIII of the EPA creates and provides for the offences of corruption, illegal practices and several other election offences. It is under this part that most of the disputes arise. On the other hand, Part IX of the Act provides for the Election Petitions that may be commenced for breach of Part VIII aforesaid. Part IX details the procedure on how an election Petition must be lodged and presented, the nature of the reliefs sought and the grounds upon which the election may be nullified. It is also under this part that the details of the rules and procedure are spelt out.

The Code of Conduct is provided for in Section 110 of the Act under Part X. The Code regulates the behaviour of all the election stakeholders such as candidates, agents, monitors, election officials, the media, and law enforcement agencies on how they must handle and conduct and carry their respective selves during elections. All election stakeholders are guided by the Code.

Some details of the provisions of the EPA will be discussed in subsequent chapters.

2.4 administrative and Judicial Electoral Dispute Resolution Mechanisms

As already noted, disputes are inevitable in the election process, and there must be mechanisms in place to resolve these disputes. Electoral disputes can be categorised at all levels of the electoral cycle, i.e. before, during and post elections. It is for this reason that different electoral dispute mechanisms along the electoral process have

11 been designed. This is to reduce the number of post-election disputes and increase the acceptance of results and enhance the legitimacy of the electoral process.

The starting point for dispute resolution is Section 113 of the EPA, which provides for the ECZ, for purposes of resolving electoral disputes, to constitute such number of Conflict Management Committees (CMCs) as the Commission may determine. Further to this, there are three institutions that have been put in place for the resolution of disputes: the Constitutional Court, the High Court and the Local Government Elections Tribunals.

The Constitutional Court is established under Article 127 of the amended Con­ stitution of 2016. The Constitutional Court Act21 gives further details on how the Constitutional Court is supposed to operate. Article 128 of the Constitution and Part II in Section 8 (1) (c), (d) and (e) of the Constitutional Court Act22 establish and provide for jurisdiction of the Constitutional Court, which, among other things, hears and determines a Petition to challenge the nomination of a candidate for election as President of the Republic and or indeed his or her election. The Constitutional Court also has jurisdiction to determine Election Petition appeals from the High Court. The procedure for the dispute resolution of Presidential Election Petitions is further set out in the Constitutional Court Rules23 under Order XIV. The aforesaid Order provides for the particulars to be included in the Petition, the service of the same and how it is supposed to be responded to. It also provides for all the steps to be taken leading to the disposal of such a Petition.

The High Court on the other hand has jurisdiction to adjudicate on Parliamentary Election Petitions. Article 73 (1) of the Constitution provides that, “a person may file an election Petition with the High Court to challenge the election of a Member of Parliament”. This is the primary legal framework for the resolution of Parliamentary Election disputes, and the forum before which such can be settled is the High Court. Apart from this express provision, Article 134 of the Constitution is key in this discussion as the High Court has, by law, unlimited and original jurisdiction in civil and criminal matters.

Article 73 (1) of the Constitution and Section 100 (2) (b) of the EPA are instructive as to where a Parliamentary Election Petition must be lodged. It states that the

21 No. 8 of 2016 22 Ibid 23 Statutory Instrument No. 37 of 2016

12 Election Petition may be presented to the Principal or District Registry of the High Court. Over and above this, the EPA provides in Parts IX and X for different procedures and processes as regards Election Petitions in the High Court and Election Petitions in the LGET.

The Constitution in Article 159 establishes the LGET. The Tribunal is established under this provision for the purpose of hearing whether someone has been validly elected councillor or the office of councillor has become vacant. It should be mentioned that the LGET is a novel creature of the Constitution as amended in 2016. Before this, Election Petitions at Local Government level used to be filed and determined by Subordinate Courts with the right of appeal to the High Court and subsequently to the Supreme Court.

In furtherance of the purposes of the Article above, in 2016 the Chief Justice promulgated or put in place the LGET Rules.24 In these Rules, the jurisdiction of the Tribunal is set out in Rule 3 while restating the Constitutional provision of Article 159 as the function of the Tribunal. Parts IX and X provide for the procedure on how the commencement, trial and determination of the Local Government Elections must be conducted.

It should be mentioned that in terms of the powers of the Tribunal, it has been given power under Article 157 (3) to disqualify or bar councillors whose elections are nullified by the LGET to contest elections during the life of that Council. The High Court has not been given similar powers when an election of a Member of Parliament is nullified. Rather, the Constitutional Court under Article 72 (4) (a) and (b) has been given such powers.

A member of the National Assembly or Council whose election is nullified by the High Court or Tribunal may appeal against the decision of the High Court or LGET to the Constitutional Court. Where an appeal is lodged with the Constitutional Court, such a member may vacate their seat only upon determination of the appeal by the Constitutional Court. This is in line with the provisions of Articles 73 (4) and 159 (6) of the Constitution. This position was confirmed by the Constitutional Court in the case of Margaret Mwanakatwe v. Charlotte Scott, ECZ and Attorney General25 in which a single Judge stated:

24 Statutory Instrument No. 60 of 2016 25 2016/CC/AOI8

13 In that regard, I note that Article 72(2) of the Constitution addresses instances when the office of Member of Parliament becomes vacant. Of particular relevance to this application is Article 72 (2) (h) where one can cease to be a Member of Parliament following a decision of the Constitutional Court. My considered view is that I see no need to entertain this application for stay any further when, by operation of law and in terms of the Constitution, it is clear when a seat becomes vacant. One of those instances is when the Constitutional Court makes a final determination on a seat that has been nullified. In the premises,I find this application for stay of execution of the judgment of the court below irrelevant because when there is an appeal, the law, as per constitutional provisions, has stated that the seat only becomes vacant after the final determination of the Constitutional Court26 (Emphasis supplied).

2.5 Conclusion

The legal framework of Election Petitions in Zambia shows complexity in the procedures as well as evolution of the law. So while the Constitution of Zambia provides for the legal framework that strictly requires that elections are free from violence and intimidation and that there is accountability, efficiency and transparency, the EPA has demonstrably introduced further provisions which have set standards very high for adjudicating bodies when determining Election Petitions on when to nullify or not nullify an election. In an environment where proof is available that elections were marred with violence and corrupt and illegal practices, the hands of the Courts are tied if the Petitioners fail to prove that such acts were conducted by or with the full knowledge of the candidate or agent. As will be shown in Chapter 4, the High Court acknowledged that the difficulty arises when determining the threshold required for a proven allegation to be considered as having influenced or prevented the majority of voters in a constituency, district or ward from electing the candidate of their choice in that constituency, district or ward. Against this backdrop, Chapters 3 to 5 analyse how Courts arrived at their respective decisions in determining Election Petitions following the 2016 general elections.

26 Page R21 of the Ruling

14 Chapter 3

An Analysis of the 2016 Presidential Election Petition

3.1 Introduction

After the general elections held on 11 August 2016, the declaration of the winner of the Presidential Elections was made on Monday, 15 August 2016. As per Article 99 of the Constitution of Zambia, the Chairperson of the ECZ, Justice Esau Chulu, made the declaration. The declaration stated that the total number of votes cast was 3,781,505, with 85,795 as rejected votes and 3,695,710 as valid votes. This represented a turnout of 56.45% of registered voters.27

Out of the valid votes cast, the nine participating or contesting candidates polled as tabulated below:

No. Candidate Name Sex Party Votes Percentage

1. Edgar C. Lungu Male PF 1,860,877 50.35%

2. Hakainde Hichilema Male UPND 1,760,347 47.63%

3. Edith Z. Nawakwi Female FDD 24,149 0.65%

4. Andyford M. Banda Male PAC 15,791 0.43%

5. Wynter Kabimba Male Rainbow 9,504 0.26%

6. Saviour Chishimba Male UPP 8,928 0.25%

7. Tilyenji C. Kaunda Male UNIP 8,198 0.24%

8. Peter C. Sinkamba Male Green 4,515 0.12%

9. Maxwell Mwamba Male DA 2,378 0.06%

27 https://www.elections.org.zm/general_election_2016.php

15 In line with Articles 47 (1) and 101 (2) of the Constitution, Edgar Chagwa Lungu, and his running mate pursuant to Article 110 (1) of the Constitution, Inonge Mutukwa Wina, of the PF, were declared President-elect and Vice President-elect respectively of Zambia on 15 August 2016.

The President-elect and his Vice President-elect were scheduled to be sworn into office on the Tuesday following the seventh day after the date of the declaration of the presidential election results, if no Petition had been filed in accordance with Article 103 of the Constitution; or the seventh day after the date on which the Constitutional Court declares the election to be valid. This is in line with Article 105 (2) of the Constitution. As it would turn out, the UPND losing candidates, Hakainde Hichilema, and his running mate, Geoffrey Bwalya Mwamba, were aggrieved with the aforesaid declaration and filed an Election Petition28 in the Constitutional Court on Friday, 19 August 2016. The Petitioners cited Edgar Chagwa Lungu, Inonge Mutukwa Wina and the ECZ as 1st, 2nd and 3rd Respondents respectively.

The Petitioners requested the Constitutional Court to declare that the President- elect Lungu and Vice-President-elect Wina were not validly elected and that the presidential election was invalid for non-compliance with the legal framework for elections. Further, they requested a declaration that Mr Lungu did not receive more than 50% of the valid votes cast. The Petitioners also asked the Court to order a recount of all votes in the Presidential Election, and scrutinise all rejected ballots. They further sought a declaration that UPND won the election, or, should the Court order a second ballot, disqualify Mr Lungu as a candidate in any future election. The Petition was based on arguments pertaining to both the electoral environment, such as bias in the public media, restrictions on movement and campaigning, as well as irregularities alleged during polling, counting, tallying, transmission and announcement of results.

The Attorney General (AG) was later joined to the proceedings as the 4th Respondent. It is important to point out that as per the provisions of Article 101 (4) and 103 (1) of the Constitution, a person may Petition presidential election within seven days of the declaration made by the Returning Officer. This means that the UPND had up to Monday, 22 August 2016, to file the Election Petition but elected to file the same on Friday, 19 August 2016 with no or insufficient evidence. This may have contributed to what transpired post the time of filing the Petition.

28 Case No. 2016/CC/0031

16 Suffice it to say that stakeholders have wondered whether the period of seven days to file a presidential Petition is reasonable for legal teams and Petitioners to gather evidence, interview and record witness statements that have to be filed with the Petition at the close of the seven-day period from the date of the declaration. This limitation has encouraged advocates to duplicate claims and statements, which, when noticed by other parties, raises possibilities for interlocutory claims for dismissing Petitions. A recommendation therefore is that this period be increased to 14 days to allow enough time for petitioners and advocates to prepare and file a petition.

3.2 The Happenings after Filing of the Petition

In the heading of the Election Petition, the Petitioners cited among other laws Articles 1, 2, 5, 9, 45, 46, 47, 48, 59, 50, 54, 60, 90, 91, 93, 101, 102, 103, 104, 118, 128 and 267 of the Constitution of Zambia. The citing of the above Articles, specifically 101 and 103, later became the subject of an application for a Preliminary Issue raised by the Respondents, who contended that the Petition presented by the Petitioners was scandalous and may prejudice, embarrass or delay the fair trial of the matter, as the Petitioners had invoked two distinct, conflicting and mutually exclusive provisions of the Constitution – videlicet, Articles 101 and 103. Therefore any reference to Article 103 in paragraph 30 and wherever it appeared in the Petition must be struck out.

It was the Respondents’ argument that the Petitioners were supposed to rely only on the provisions of Article 101 in their Petition, as the President-elect and his Vice had been declared winners after the first round of polls without the necessity of a re-run or second round, which would have been be the case had they failed to garner more than 50% of the valid votes cast after the first poll on 11 August 2016. The Respondents further argued that Article 103 comes into play only if there is a re-run or second poll.

To stretch the above argument, it would seem that the only time the Constitution envisages the President-elect not being sworn into office because an election Petition has been filed is when the elections are won after the second round. This is because Article 105 (2) (a) of the Constitution only talks about a Petition filed under Article 103.

17 It would seem that because of the aforesaid provisions of Article 105 (2) (a), the Petitioners had to cite both Articles 101 and 103 in their Petition. Because the provisions of both Articles were invoked, the swearing-in of the President-elect and his Vice could not take place on Tuesday, 23 August 2016. Suffice it to say that the Constitutional Court never delivered its Ruling on the Preliminary Issues raised by the Respondents and, accordingly, the contention on whether a Petitioner of Presidential Elections can invoke both Articles 101 and 103 at the same time, or indeed whether when someone wins in the first round of polls they can be sworn into office despite the filing of an election Petition, is yet to be pronounced on by the Constitutional Court.

After the Petition was filed on 19 August 2016, the period that followed was a hive of activities. The following week the AG was joined to the proceedings as the 4th Respondent. In the same week the single Judge of the Constitutional Court ordered that in preparing their Answers to the Petition, the Respondents should concentrate only on the witness statements that were filed at the same time with the Petition and disregard all those witness statements that were filed after the Petition was already filed and without leave of the Court.

This could eventually leave the Petitioners’ case to be determined on the basis of 21 witness statements filed together with the Petition on 19 August 2016. The Order made by the Court was pursuant to Order 14 Rule 1 (3) of the Constitutional Court Rules,29 which requires that a Presidential Election Petition should be filed together with an Affidavit Verifying Facts; witness statements; skeleton arguments; and a list of authorities and copies of authorities cited.

It was also during the week that the Petitioners applied to amend their Petition on 25 August 2016. The application was later denied by the Court. Another application that was heard during the week was the one the Petitioners made for the preservation of election materials, which was also dismissed by the Honourable Court.

On 24 August 2016 the single Judge of the Constitutional Court issued directions in the matter. The directions issued initially were that the matter would be heard from Friday, 2 September 2016 and end on Thursday, 8 September 2016. Some representations were made by Counsel for the Respondent, which resulted in the single Judge summoning the parties on the morning of 1 September 2016 and

29 Supra Note 17

18 directing them that the hearing of the matter would commence and conclude on Friday, 2 September 2016, being the last day of the hearing.

On Friday, 2 September 2016 the full bench of the Constitutional Court comprising five distinguished Judges were all set to hear the Petition from as early as 07:00 hours. The Court accordingly informed the parties that the hearing would extend to 23:45 hours and that each side would be given six and half hours in which to present their cases. However, the Petitioners’ Advocates made a number of preliminary applications on which the Court had to make rulings. The last of the aforementioned applications was determined only after 19:00 hours, leaving only about four hours in which the parties would present their cases. The parties were accordingly informed that each side to the Petition had about two hours in which to present their cases.

It was at this stage that Advocates for the Petitioners applied for leave to be excused from representing the Petitioners on the basis that the two hours was inadequate for them to represent their Clients effectively. The Advocates were accordingly granted the leave. After the withdrawal of their Advocates from representing them, the Petitioners personally addressed the Court and requested for time within which to engage Counsel. At about 23:55 hours on 2 September 2016, the application was granted and the Court adjourned the matter to Monday, 5 September 2016 at 08:00 hours.

The Court further directed that the matter would be heard up to 8 August 2016, with each side given two days in which to present their cases. However, before the Court could rise, the Learned AG informed the Court that in line with Article 101 (5) of the Constitution, a Presidential election Petition was supposed to be heard within 14 days after being filed. It was his contention that hearing the matter outside the 14 days prescribed by the Constitution would render such a hearing a nullity.

3.3 The Final Verdict

When the matter came up on Monday, 5 September 2016 at 08:00 hours the Advocates for the Petitioners who had withdrawn from representing the Petitioners on 2 September 2016 were in Court. An apology was rendered on their behalf by Mr Vincent B. Malambo, S.C. on the way proceedings turned out on Friday, 2 September 2016. However, on 5 September 2016, it is interesting to note that the Advocates for the 1st, 2nd and 3rd Respondents were conspicuously missing from the Courtroom.

19 On Monday, 5 September 2016, the Constitutional Court finally disposed of the Election Petition on a technicality. Three Judgments or Rulings30 were delivered on the said day. The first was the majority Ruling, which constitutes the decision of the Constitutional Court. The other two Judgments were dissenting Judgments. The majority Judgment, which constitutes the decision of the Constitutional Court in line with Section 3 (5) of the Constitutional Court Act No. 8 of 2016, was the opinion of three Judges, namely, Justices A. M. Sitali, M. S. Mulenga and P. Mulonda. It was the holding of the Court that as Articles 101 (5) and 103 (2) of the Constitution limit the period within which a presidential election Petition must be heard by the Constitutional Court to 14 days after the filing of the Petition, the Court could not competently hear a Petition outside this period. The Court stated:

As we have said in this case, the period for hearing the Petition is prescribed by the Constitution itself. The timeframe is rigid and thus this Court has not been given discretion to enlarge time. This is for good reason, that is, to avoid prolonged uncertainty concerning the office of President, which is the highest office in this Country through a prolonged delay in swearing in of the President- elect. Thus, the rigid timeframe for the hearing of presidential Election Petitions was deliberately enacted by law makers because, from the provisions of Article 104, a President-elect cannot assume office once the validity of their election is challenged.31

As the prescribed 14 days had expired on Friday, 2 September 2016, it was the holding of the Constitutional Court that the Petition stood dismissed for want of prosecution. This was because the Petitioners failed to prosecute their case within the 14 days prescribed by the Constitution after it was filed.

The other two Judges who comprised the full bench of the Constitutional Court hearing the election Petition, Justices H. Chibomba and M. M. Munalula, delivered individual dissenting Judgments on 5 September 2016. The salient issues arising from the dissenting Judgments were that the 14-day period prescribed in the Constitution for the hearing of a presidential election Petition does not take into account the period for preparing and setting down the matter for trial. Further, that the right to be heard is fundamental and the period of 14 days prescribed by Articles 101 (5) and 103 (2) is not practical and therefore inconsistent with the right to be heard.

30 The majority decision was inscribed with the word “Ruling”, while the two dissenting decisions were labelled “Dissenting Judgment”. 31 Page R13 and R14

20 Following the majority Judgment, the President-elect and his Vice were sworn into office on Tuesday, 13 September 2016.

3.4 analysis of Some Issues Arising from the Petition

The cardinal issue that inevitably arises from the 2016 Presidential Election Petition is the issue of the 14 days as enacted by Articles 101 (5) and 103 (2) of the Constitution. The issue is whether the provision of 14 days for hearing a presidential election petition is sufficient for the Courts to hear witnesses from contending sides, evaluate evidence and make a determination of an election petition of such magnitude, prominence and importance.

It should be mentioned that Articles 101 (5) and 103 (2) of the Constitution are not without history. In her introductory remarks to a paper titled “Judicial Case Management: Impact of Delays and Backlog on Public Perception of the Judiciary”,32 her Ladyship the Chief Justice observed that backlog and delay (in the disposal of cases) has plagued many jurisdictions in the world, leading to a slowing down of the wheels of justice. She noted that delay was being caused by cases taking too long to be processed through the system up to and including trial or that upon being tried the court takes too long to render its decision. The two circumstances combined lead to a case taking years before it is cleared. In the Anderson Kambela Mazoka & Others v Levy Patrick Mwanawasa & Others case, the Supreme Court, after tracing the long journey that the case took before it was determined, opined thus:

We have deliberately delved into the long history of this petition in order to bring out two points. The first point is that the events leading to the period it has taken to complete this matter was unavoidable and in the interest of justice. The second point is that elections, be it presidential or parliamentary, by their nature of demanding a quick resolution, ought not and must not follow the course of the existing clogged court system which has very slow wheels of resolution because of the strict requirements of adherence to rules of pleadings, practice and procedure. Matters pertaining to elections must be determined very expeditiously lest they be rendered an academic exercise at the end.

In a well-meaning attempt to rectify the above mischief, Zambians introduced the 14-day amendment in January 2016. Prior to this amendment as indicated, such petitions would languish before the courts for years and by the time decisions were

32 Presented at the 2015 Judicial Conference, Livingstone, https://www.daily-mail.co.zm/?p=53152

21 handed down, the person whose election was challenged was well into his term of office. The effect was that either too much uncertainty was created by the pending petition that the president could not fully perform the important functions of the office, or the petition was so overtaken by events altogether that the court’s decision was more or less predetermined. Conventional wisdom therefore required some degree of certainty to be legislated. Zambia borrowed heavily in this regard from Kenya, which had only five years earlier constitutionalised a strict 14-day timeline for its Supreme Court to hear and determine presidential election petitions.33

From the way the 2016 Presidential Election Petition was determined, the obvious question that arises is whether this period is indeed sufficient to hear a Petition of the magnitude of a presidential election. The experience from the 2016 presidential election Petition shows us that the 14 days is insufficient. This is because before a Petition is heard, there is a need for documentation and setting the matter down for trial. As a presidential election affects the whole country, it is expected that the issues for determination are wider and as such involve several people to present evidence.

Indeed, it has been argued that even a Local Government Election Petition has been given 30 days in which to be determined after filing by Article 159 (4) of the Constitution and Article 73 (2) of the Constitution has prescribed a 90-day period from the date of filing in which an election Petition for a member of Parliament must be heard. One would argue that the complexities and magnitude associated with the Local Government and Parliamentary Election Petitions are far less when compared to the Presidential Election. This is because Local Government and Parliamentary Election Petitions are concerned with Constituencies and Wards or Districts, while Presidential Election Petitions cover the whole country.

It is also worth pointing out that is not clear whether 14 days as prescribed by the Constitution for hearing includes determination of the Petition. The Constitution of Kenya 2010 from which Zambia supposedly drew inspiration when drafting its Constitution also provides in Article 140(2) that: “Within fourteen days after the filing of a petition … the Supreme Court shall hear and determine the petition …”.

In the case of Raila Odinga and 5 Others v. Independent Electoral and Boundaries Commission and 3 Others,34 the Kenyan Supreme Court interpreted the above

33 Owiso, R. 2016. The 2016 Zambia presidential election: How not to handle a petition. AfricLaw. https://africlaw.com/2016/09/16/the-2016-zambia-presidential-election-petition-how-not-to-handle-election-petitions/ 34 Petition No. 5 of 2013

22 provision to the effect that, in the interests of time, the petitioner is not expected or entitled to reply to the respondents’ answer to the petition. While the court cannot be faulted for limiting the preliminary procedures to ensure ‘ample’ time is left within the 14 days to ‘hear’ the petition and make a determination, this again draws attention to the gross inadequacy of the 14 days. These two presidential election petitions highlight the counterproductive effect of otherwise well-meaning constitutional provisions.

While the mischief of unreasonably prolonged election petitions has been cured by these constitutional provisions, the flip-side has been to rob the judiciary of sufficient time to hear petitions, evaluate evidence and render judicious decisions that uphold the integrity of the electoral process and promote democracy. What the Kenya and Zambia scenarios have shown is that courts have no option but to hold what amounts to formality hearings, if at all, and make obligatory pronouncements without having the benefit of properly hearing and deliberating upon all the evidence.35

Some people have argued that it was not right for the Constitutional Court to dismiss the Petition on a technicality of the lapsing of the 14 days. The case of Anderson Kambela Mazoka has been used as authority for this proposition. The Supreme Court of Zambia observed the following in that case:

The learned Attorney-General also raised the issue of the limitation period under Section 27 (1) of the Electoral Act which provides that Parliamentary Election Petitions should be determined within 180 days of the presentation of the Petition to the High Court. He stated that there is no similar provision applicable to a presidential Petition. The learned Attorney-General submitted that should this Court hold that provisions relating to Parliamentary Election Petitions should be applied in determining Presidential Election Petitions, then Section 27 (1) of the Electoral Act should also apply. To support his submission, the learned Attorney-General relied on the case of Re Nomination Paper of, A.C. Ngoma and the Federal Act (7), which according to him, expounded the principle that Courts must ensure that the provisions of Electoral Acts are properly complied with. He submitted that the idea behind prescribing the period of 180 days was to cure the mischief of delaying Petitions for long periods until they become an academic exercise. He submitted further that this period is mandatory and should be complied with. He stated that since the Petition in this case went well beyond

35 Owiso. R. 2016. The 2016 Zambia presidential election: How not to handle a petition. AfricLaw. https://africlaw.com/2016/09/16/the-2016-zambia-presidential-election-petition-how-not-to-handle-election-petitions/

23 the 180 days period, we should dismiss it for want of prosecution. According to the learned Attorney-General, there was inordinate delay in prosecuting the action and that passing judgment now would be catastrophic and disruptive to the nation. He also stated that such nullification would bring into question, the agreements and appointments made by the 1st respondent. He submitted that the correct status of the matter is that it is illegally before the Court, having exceeded the prescribed period by two and half years.

The Court thus provided the following guidance:

The Respondents also submitted that in the event that we hold that Section 18 of the Electoral Act applies to Presidential Election Petitions, we should also hold that Section 27(1) of the Electoral Act, which prescribes the time limit of 180 days within which to determine an election Petition, should also apply to a Presidential election Petition. We have found that Section 18 of the Electoral Act does not directly apply to Presidential Election Petitions. We have found no law, which suggest that Section 27(1) of the Electoral Act applies to Presidential Election Petitions. Though for different reasons, we uphold the Petitioners’ submissions that the 180 days limitation does not apply.

On the other hand, even if Section 27(1) would be applicable, strict adherence to it, would lead to a number of illogicalities and absurdities in both Parliamentary and Presidential elections, in that regardless of any reason, a Petition which exceeds 180 days must cease or collapse in midstream without any determination. This, in our view, would be most unsatisfactory. Perhaps, this explains why the Section is silent on what should happen when a Petition has exceeded 180 days. We take note that in practice most Parliamentary Election Petitions and even the last Presidential election Petition exceeded 180 days.

The above thought appears to have the backing of Article 118 (2), which states:

“In exercising judicial authority, the Courts shall be guided by the following principles: (a) Justice shall be done to all, without discrimination (e) Justice shall be administered without undue regard to procedural technicalities”.

Our view on the guidance of the Supreme Court of Zambia in the above matter is that it would not apply in the current Constitutional order.

This brings us to the second school of thought, which this report subscribes to.

24 This school of thought is that the time for hearing a Presidential Petition is fixed by the Constitution. The provision has been couched in mandatory terms for the Courts to hear the Petition within the 14 days. It is the argument from this school of thought that the provision of 14 days is not a procedural technicality to fall under the ambit of Article 118 (2) (e) of the Constitution. The provision of the 14-day time limit in which the Petition ought to have been heard and determined is a substantive matter and was rightly adhered to by the Constitutional Court when it refused to hear the matter outside the set timeframe.

It is further argued that even if the above provision in Article 118 (2) (e) was a procedural technicality, which has been pointed out it is not, the Court is still supposed to pay due regard to such procedural technicalities. What Article 118 (2) (e) proscribes the Courts from doing is to pay undue regard to procedure. This was the guidance offered by the Constitutional Court in the case of Henry Kapoko v. The People36 in which it was stated “Article 118 (2) (e) does not direct courts to disregard technicalities, it enjoins courts not to pay undue regard to technicalities that obstruct the course of justice”.

It is noted that Articles 101 and 103 have specifically provided that a presidential election Petition must be heard within 14 days of its filing. The Supreme Court arrived at the above conclusion by making interpolations of provisions of Acts of Parliament and Rules. However, what the country is now faced with after the 2016 amendments to the Constitution are clear time stipulations by the Constitution. The drafters of the Constitution had reasons as to why the 14 days period was prescribed and, as such, this research finds wisdom in the holding of the majority of the Constitutional Court that the Court’s hands are tied. The Constitutional Court stated in its aforesaid majority Ruling that:

The purposive approach to the interpretation of the Constitution does not assist in this case as the time frame for the hearing of the Petition is stated in mandatory terms and Order XV rule 7 of the Constitutional Court Rules, Statutory Instrument No. 37 of 2016 states that this Court has no jurisdiction to change the time frame specified in the Constitution. The Court’s hands are, therefore tied in terms of enlarging time. In view of the fact that the Court has no power to enlarge time, the order we gave to the parties, on 2nd September, 2016, that they would be given two days each to present their case outside the prescribed period is not tenable.37

36 2016/CC/0033 37 Page R8

25 Having determined that the 14-day period is insufficient, the next issue to be determined is whether there is anything the country can do in future elections to ensure that the right to be heard as guaranteed by the Constitution is adhered to even in a Presidential election Petition. Zambia seriously needs to consider amending the Constitution so as to provide for a longer period in which a Presidential Election Petition must be heard. In making this recommendation, we must be alive to its possible consequences.

The first consequence of giving a much longer period of, say, 30 days or more is that the country may have a vacuum in the highest office in the land for a period of more than three months – in other words, until the next year following an election. This would also mean the budget for the country is not prepared and presented in line with Article 202 of the Constitution, as there would be no Minister of Finance who is an appointee of the President as per the Article 116 (1) of the Constitution. Suffice it to say at this juncture that the Constitutional Court in the case of Stephen Katuka and Law Association of Zambia v. Attorney General, Ngosa Simbyakula and 63 Others38 held that it is illegal for Ministers to be in office after dissolution of Parliament. The problems that the country would face with increasing the time limit within which to swear in the President-elect are illustrated in detail below.

Article 51 (1) of the Constitution provides that a general election shall be held, every five years after the last general election, on the second Thursday of August. If we take 2021 as an example, because it is expected that this is when the next general election will be held, the day will be 12 August 2021. From the date of the election to the date of the results being announced and a winner declared, if a candidate surpasses the 50% requirement, we add another five days, taking us to 17 August 2021.

Since an election Petition is supposed to be filed within seven days, the same would be done by 24 August 2021. If we add a minimum of 30 days from 24 August 2021 for the Petition to be heard, the hearing would be concluded by 23 September 2021. Assuming that the Court arrived at a decision that in fact the candidate whose election was contested was not validly elected, another election would need to be held within 30 days in line with Article 103 (5) of the Constitution. This would stretch the period to 23 October 2021. After the elections on 23 October 2021,

38 2016/CC/010 and 011

26 we add another five days for the declaration, taking us to 28 October 2021. Should someone be dissatisfied with the outcome of the elections after declaration, they are at liberty to Petition and the Petitioning period is seven days from the date of the declaration, which would take us to 4 November 2021.

Add the 30 days from 4 November 2021 for the determination of the Petition and we end up on 4 December 2021. In line with Article 105 (2) of the Constitution, the President-elect and the Running mate would be sworn into office only on 14 December 2021. If it takes about one week for Cabinet to be constituted, this would take us to around 21 December 2021, which also happens to be a vacation period. It must also be borne in mind that before the budget is implemented, the National Assembly has to approve it by debating it for several days.

This would definitely mean that it would only be in 2022 when the new Minister of Finance would be acquainted with the budget and present it to the National Assembly. In addition, the President has to ceremonially open the National Assembly. The above scenario would only be possible if the word ‘hearing’ as used in Articles 101 (5) and 103 (2) includes determination, because if that were not the case, the period would even have to be stretched further to include the time for the Court to deliver its Judgments.

The other issue that arises and that is prompted by the above scenario is whether it is desirable that when a Presidential Election Petition is filed in Court the President-elect must not be sworn into office. It would seem, and rightly so, that the wisdom behind not allowing the President-elect from being sworn into office after an election Petition challenging his or her election is filed in Court is to avoid the possibility of the President-elect interfering in the Court process.

Much as this position is quite justified, it should be noted that it is not only a President who has been sworn into office who can interfere with the judicial process. In fact, it is true that anyone can interfere with the judicial process depending on the circumstances. The answer does not necessarily lie in not swearing the President- elect into office but indeed ensuring that all the governance institutions inclusive of the Judiciary are independent and protected from political interference. This would result in repelling any possible interference from whichever person or authority.

Our recommendation is for Zambia to take further stock of these constitutional provisions and realign them with the general spirit of the Constitution and internationally accepted standards, which require enough of a timeframe for

27 aggrieved parties to present their Petitions and for the Courts to evaluate the evidence adduced and determine matters before them. As the adage goes, justice delayed is justice denied, and the same also applies to justice rushed.

3.5 Conclusion

The results of the Presidential Elections of 11 August 2016, won by Edgar Chagwa Lungu of the PF, were contested in the Constitutional Court by a Petition filed by the UPND on 19 August 2016. This Petition was disposed of on a technicality based on Article 101 and 103 of the Constitution, which sets the time limit for hearing a presidential election Petition at 14 days. Stakeholders have wondered whether 14 days is sufficient to hear an election Petition of the magnitude, prominence and importance of presidential elections. This can also be seen from the majority Judgment of the Constitutional Court delivered on 5 September 2016 dismissing the Petition on a technicality that 14 days may not be sufficient to hear an Election Petition of the magnitude of that dealing with Presidential elections. It is because of this that stakeholders have to interrogate the 14-day period with a view to increasing the time limit. However, in doing so, caution must be exercised to ensure that the office of the President is not left vacant for elongated periods, as this would have an adverse effect on the entire country.

28 Chapter 4

An Analysis of the 2016 Parliamentary Election Petitions

4.1 Introduction

Zambia has seen an exponential increase in Parliamentary Election Petitions since the advent of multi-party democracy in 1991. In the 2001 elections, 41 Parliamentary seats were petitioned, while 43 were in 2006 and 68 were in 2011. After the 2016 general elections, 86 Parliamentary Election Petitions were filed by losing candidates.

Out of the 86, 23 were withdrawn or discontinued, 4 were dismissed at a preliminary stage, 53 were heard and the elections results upheld and 6 were heard and the elections nullified.

The following are the cases that went to trial accordingly.

4.2 Parliamentary Election Petitions Nullified after Trial

1. Kaliye Mandandi v. Mbololwa Subulwa – 2016/HP/EP002 2. Enock Kaywawa Mundia v. Mahau George Imbuwa – 2016/HP/EP 0013 3. Belinda Moola Mutanda v. George Muhali Imbuwa, Enock Kaywala Mundia and ECZ – 2016/HP/EP 0063 4. Greyford Monde v. Hebert Shabula – 2016/HP/EP 0027 5. Doreen Sefuke Mwamba v. Prof. Nkandu Luo – 2016/HP/EP0021 6. Charlotte Scott v. Margaret Mwanakatwe – 2016/HP/EP 0039

Cases number 2 and 3 related to the same constituency – Nalolo.

29 4.3 Parliamentary Elections Petitions that were Dismissed after Trial

1. Alfreda Kansembe v. Mwenya Mukonge – 2016/HP/ EP 001 2. Ackson Simize v. Pauyuma Kalobo – 2016/HK/EP01 3. Austin C. Milambo v. Machila Jamba – 2016/HP/EP003 4. Davis Mwila v. Jewis Chabi – 2016/HP/007 5. Collins Nzovu v. Boyd Hamusonde – 2016/HP/EP006 6. Giles Chomba Yamba Yamba v. Kapembwa Simbao – 2016/HP/EP008 7. Richwell Siamunene v. Sialubalo Gift – 2016/HP/EP004 8. Robert Chiseke Taundi v. Mwene Naluwa – 2016/HP/EP009 9. Changano Kakoma Charles v. Kundot Mulonda – 2016/HP/EP010 10. Austin C. Liato v. Sitwala Sitwala – 2016/HP/EP0011 11. Kufuka Kufuka v. Ndalamei Mundia - 2016/HP/EP0012 12. Richard Sikwibele Mwapela v. Muyutu Chinga - 2016/HP/EP0016 13. Mwangala Mwenda v. Situmbeko Musokotwane - 2016/HP/EP0017 14. Samuel Mukwamataba Nayunda v. Geoffrey Lungwangwa - 2016/HP/EP0018 15. Peter Kahilukazhila v. Mishek Mutelo – 2016/HP/EP 0019 As Consolidated with Victor Chivumbu Kachaka v. Misheck Mutelo – 2016/HP/EP 0044 16. Josephine M. Limata v. Makozo Chikote - 2016/HP/EP 0020 17. Jimmy Dons v. Jean Kapata - 2016/HP/EP 0022 18. Joseph Mulyata v. Mwilola Imakando - 2016/HP/EP 0023 19. Abel Musinda v. Given Katuka - 2016/HP/EP 0024 20. Christabel Ngimbu v. Prisca Chisengu Kucheka - 2016/HP/EP 0025 21. Steven Masumba v. Elliot Kamondo - 2016/HP/EP 0026 22. Rose Salukatula v. Victor Lumayi - 2016/HP/EP 0028 23. Abiud Kawangu v. Elijah Muchima - 2016/HP/EP 0029 24. Jonathan Kapaipi v. Newton Samakai - 2016/HP/EP 0030 25. Makuwa Anthony Lusaka v. Harry Kalaba - 2016/HP/EP 0034 26. Sunday C. Maluba v. Rodgers Mwewa - 2016/HP/EP 0035 27. Sibongile Mwamba v. Kelvin M. Sampa - 2016/HP/EP 0040 28. Michael Kaingu v. Sililo Mutabo - 2016/HL/EP01 29. Poniso Njeulu v. Mubika Mubika - 2016/HL/EP02 30. Patricia Mulasikwanda v. Alfred Mandumbwa - 2016/HL/EP03 31. Edwin Simwimba v. Matthews Jere - 2016/HL/EP05 32. Andrew Kafuta Kayekesi v. Chishimba Kambwili - 2016/HN/EP01 33. Helen Mulenga v. Steven Chungu - 2016/HN/EP02 34. Lloyd Lubosha v. Frank Ng’ambi - 2016/HN/EP03

30 35. Ernest Lufunda v. Bowman Lusambo - 2016/HN/EP04 36. Chrispin Siingwa v. Stanely Kakubo - 2016/HP/EP0043 37. Phiri Alfonso Kaziuhe v. Margret Miti - 2016/HP/EP0046 38. Elijah Biyete v. Evans Chibanda - 2016/HP/EP0047 39. Sylvia T. Masebo v. Japhen Mwakalombe - 2016/HP/EP0048 40. Emmanuel Munaile M. v. Christopher Bwalya – 2016/HP/EP 049 As Consolidated with 2016/HP/EP 0062 41. Mulenga Sata v. Given Lubinda - 2016/HP/EP0050 42. Chikundika Derrick v. Chali Chilombo - 2016/HP/EP0051 43. Samson Thole v. Salatiel Tembo - 2016/HP/EP0053 44. Brian Sikazwe v. Chansa Hastings - 2016/HP/EP0058 45. Rodrick Chewe v. Mwenya Mukonge - 2016/HP/EP0059 46. Champion C. Tembo v. Vincent Mwale - 2016/HP/EP0061 47. Charles Bowa Sinyangwe v. Siwanzi Yizukanji - 2016/HP/EP0064 48. Justina Chikota v. David Mumba - 2016/HP/EP0065 49. Japhet Msimuko v. Mr Zimba - 2016/HP/EP 0066 50. Sydney Chisanga v. Davis Chisopa - 2016/HK/EP02 51. Elvis Ng’andu Chishala v. Ng’onga Mayas - 2016/HK/EP03

Of the two cases that were dismissed at a preliminary stage, there was one appeal to the Constitutional Court. This was in the case of Margret Zulu v. Peter Daka, ECZ and Attorney General - 2016/HP/EP 0037. In its Judgment delivered on 11 January 2017 in Appeal No. 4/2016 the Constitutional Court agreed with the High Court that citing repealed law in commencing an election Petition is fatal and that such a Petition is null and void and cannot therefore be amended.

A total of 37 Notices of Appeal were lodged in the Constitutional Court from the above 58 cases that went to trial. However, only 12 records of appeal had been filed in the Constitutional Court as at 13 January 2017. In the interests of clarity, the table below shows cases that had been appealed to the Constitutional Court:

31 4.4 Appeals in the Constitutional Court

No. Cause No. Parties Date Matters of the Law for Status Determination 1. 2016/CC/ Jimmy Dons 29/09/16 Interpretation of Article 47 (2), 51, 54, ACTIVE A001 v. 72, (2) (c) 73 (1) of the Constitution (Pending) Jean Kapata and E.C.Z of Zambia (Only a Notice of Appeal filed) 2. 2016/CC/ Margret Zulu 4/10/16 Interpretation of Section 83, 89 (1) (e) ACTIVE A002 v. of the EPA No. 35 of 2016. (determined on Peter Daka and E.C.Z (Notice and Record of Appeal 11 January 2017) filed) 3. 2016/CC/ Elizabeth Phiri 20/10/16 Interpretation of Section 81, 89, 97 (1), ACTIVE A013 v. 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) Samuel Mwale and E.C.Z 35 of 2016. (Only a Notice of Appeal filed) 4. 2016/CC/ Chishimba Kambwili 20/10/16 Interpretation of part V and VI of the The Appellant DIS- A014 v. Constitution of Zambia ACT No. 2 CONTINUED the Andrew Kafuta Kayekesi and of 2016. matter. Attorney General (Notice and Record of Appeal filed) 5. 2016/CC/ Alfonso Phiri 31/10/16 Interpretation of Section 81, 89, 97 (1), ACTIVE A015 v. 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) Margret Miti and E.C.Z 35 of 2016. (Only a Notice of Appeal filed) 6. 2016/CC/ Nkandu Luo (Prof) 23/11/16 Interpretation of Section 81, 89, 97(1), ACTIVE A016 v. 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) Doreen Sefuke and 35 of 2016. E.C.Z (Notice and Record of Appeal filed) 7. 2016/CC/ Muhali George Imbuwa 23/11/16 Interpretation of Articles 46, 57, 54 and ACTIVE A017 v. 73 of the Constitution of the Republic (Pending) Enock Kaywala Mundia of Zambia and section 96 of the EPA No. 35 of 2016. (Notice and Record of Appeal filed) 8. 2016/CC/ Margaret Mwanakatwe 24/11/16 Interpretation of Articles 1, 2, 5, 8, 9, 45, ACTIVE A018 v. 46, 47, 48, 49, 50, 54, 70, 71, 72, and 73 (Pending) Charlotte Scott of the Constitution of Zambia ACT No. 1 Volume 1 of the Laws of Zambia. (Notice and Record of Appeal filed) 9. 2016/CC/ Samuel Muyunda Mukwa- 25/11/16 Interpretation of Article 73 (1) of ACTIVE A019 matama the Constitution of the Republic of (Pending) v. Zambia and section 96 of the EPA No. Geoffrey Lungwangwa 35 of 2016. (Only a Notice of Appeal filed) 10. 2016/CC/ Giles Chomba Yambayamba 25/11/16 Interpretation of Article 73 (1) of ACTIVE A020 v. the Constitution of the Republic of (Pending) Kapembwa Simbao Zambia and section 96 of the EPA No. 35 of 2016 (Notice and Record of Appeal filed) 11. 2016/CC/ Herbert Shabula 25/11/16 Interpretation of Article 73 (1) of ACTIVE A021 v. the Constitution of the Republic of (Pending) Grayford Monde Zambia and section 96 of the EPA No. 35 of 2016. (Only a Notice of Appeal filed)

32 12. 2016/CC/ Kufuka Kufuka 28/11/16 Interpretation of Article 73 (1) of ACTIVE A022 v. the Constitution of the Republic of (Pending) Mundia Ndalamei Zambia and section 96 of the EPA No. 35 of 2016. (Notice and Record of Appeal filed) 13. 2016/CC/ Austin C. Milambo 29/11/16 Interpretation of Article 73 (1) of ACTIVE A023 v. the Constitution of the Republic of (Pending) Machila Jamba Zambia and section 96 of the EPA No. 35 of 2016 (Notice and Record of Appeal filed) 14. 2016/CC/ Steven Masumba 30/11/16 Interpretation of Article 73 (1) of ACTIVE A024 v. the Constitution of the Republic of (Pending) Eliot Kamondo Zambia and section 96 of the EPA No. 35 of 2016 (Notice and Record of Appeal filed) 15. 2016/CC/ Mbololwa Sibulwa 30/11/16 Interpretation of Section 81, 89, 97 (1), ACTIVE A025 v. 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) Kaliye Mandandi and 35 of 2016. Mutomena Mubiana (Notice and Record of Appeal filed) 16. 2016/CC/ Ernest Lufunda 5/12/16 Interpretation of Section 81, 89, 97 (1), ACTIVE A027 v. 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) Bowman Lusambo 35 of 2016. (Notice and Record of Appeal filed) 17. 2016/CC/ Chrispin Siingwa 6/12/16 Interpretation of Section 81, 89, 97 (1), ACTIVE A028 v. 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) 35 of 2016. Stanley Kakubo (Only a Notice of Appeal filed)

18. 2016/CC/ Collins Nzovu 6/12/16 Interpretation of Section 81, 89, 97 (1), ACTIVE A029 v. 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) Boyd Hamusonde 35 of 2016. (Only a Notice of Appeal filed) 19. 2016/CC/ Emmanuel Munaile 6/12/16 Interpretation of Section 81, 89, 97 (1), ACTIVE A030 v. 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) Christopher Bwalya Yaluma 35 of 2016. (Only a Notice of Appeal filed)

20. 2016/CC/ Poniso Njeulu 7/12/16 Interpretation of Section 81, 89, 97 (1), ACTIVE A031 v. 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) Mubika Mubika 35 of 2016. (Only a Notice of Appeal filed) 21. 2016/CC/ Herbert Shabula 7/12/16 Interpretation of Section 81, 89, 97 (1), ACTIVE A032 v. 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) 35 of 2016. Grayford Monde (Notice and Record of Appeal filed) 22. 2016/CC/ Sibongile Mwamba 7/12/16 Interpretation of Section 81, 89, 97 (1), ACTIVE A033 v. 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) Kelvin Sampa 35 of 2016. (Notice and Record of Appeal filed) 23. 2016/CC/ Peter Kahilu 7/12/16 Interpretation of Section 81, 89, 97 (1), ACTIVE A034 Kazhila 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) v. 35 of 2016. Misheck Mutelo (Only a Notice of Appeal filed)

33 24. 2016/CC/ Richwell Siamunene 8/12/16 Interpretation of Section 81, 89, 97 (1), ACTIVE A035 v. 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) Sialubalo Gift 35 of 2016. (Only a Notice of Appeal filed) 25. 2016/CC/ Austin C. Liato 8/12/16 Interpretation of Section 81, 89, 97 (1), ACTIVE A036 v. 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) Sitwala Stwala 35 of 2016. (Only a Notice of Appeal filed) 26. 2016/CC/ Richard Sikwebele 8/12/16 Interpretation of Section 81, 89, 97(1), ACTIVE A037 Mwapela 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) v. 35 of 2016. Miyutu Chinga (Only a Notice of Appeal filed)

27. 2016/CC/ Robert Chiseke 9/12/16 Interpretation of Section 81, 89, 97(1), ACTIVE A038 Taudi 99(c), 99, 100(2) (a) of the EPA No. (Pending) v. 35 of 2016. Mwene Naluwa (Only a Notice of Appeal filed)

28. 2016/CC/ Abiud Kawangu 9/12/16 Interpretation of Section 81, 89, 97 (1), ACTIVE A039 v. 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) Elijah Muchima 35 of 2016. (Only a Notice of Appeal filed) 29. 2016/CC/ Sunday Chitungu Maluba 19/12/16 Interpretation of Section 81, 89, 97 (1), ACTIVE A040 v. 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) Rodgers Mwewa and 35 of 2016. Attorney General (Only a Notice of Appeal filed) 30. 2016/CC/ Mwenya Musenge 19/12/16 Interpretation of Section 97, (2) (a) and ACTIVE A041 v. (c) of the EPA, Act No. 35 of 2016. (Pending) Mwila Mutale (Only a Notice of Appeal filed)

31. 2016/CC/ E.C.Z 21/12/16 Interpretation of Section 81, 89, 97 (1), ACTIVE A042 v. 99 (c), 99, 100 (2) (a) of the EPA No. (Pending) Doreen Sefuke Mwamba 35 of 2016. (Only a Notice of Appeal filed) 32. 2016/CC/ Changano Kakoma Charles 21/12/16 Interpretation of Section 96 of the EPA ACTIVE A043 v. No. 35 of 2016. (Pending) Kundoti Mulonda (Only a Notice of Appeal filed)

33. 2016/CC/ Patricia Mambeya Mazala 22/12/2016 Interpretation of Section 81, 89, 97, 99, ACTIVE A044 Mulasikwanda 99, 100, 110 of the EPA No. 35 of 2016. (Pending) v. (Only a Notice of Appeal filed) Alfred Mandumbwa 34. 2016/CC/ Dr. Michael Liwanga Kaingu 22/12/16 Interpretation of Section 81, 89, 97, 99, ACTIVE A045 v. 99, 100, 110 of the EPA No. 35 of 2016. (Pending) Sililo Mutaba (Only a Notice of Appeal filed)

35. 2016/CC/ Sydney Chisanga 22/12/16 Interpretation of Section 96 of the EPA ACTIVE A046 v. No. 35 of 2016. (Pending) Davies Chisopa, E.C.Z and (Only a Notice of Appeal filed) Attorney General 36. 2016/CC/ Christable Ngimbu 27/12/16 Interpretation of Section 45 (2a), (c) ACTIVE A047 v. and (d), 47 (2), 68 (1) (2a) of the EPA (Pending) Prisca Chisengo Kucheka and No. 35 of 2016. E.C.Z (Only a Notice of Appeal filed) 37. 2016/CC/ Jonathan Kapaipi 27/12/16 Interpretation of Section 96, 97, 98, 99, ACTIVE A048 v. 100, 106, 107 and 108 of the EPA No. (Pending) Newton Samakai 35 of 2016. (Only a Notice of Appeal filed)

34 4.5 reasons for the Election Petitions and Reliefs Sought

There were various reasons as to why losing candidates contested the outcome of the elections. Some of the common reasons were intimidation, drilling and/or sinking boreholes, vote buying, bribery, corruption and illegal electoral practices, tribal, racist and derogatory remarks, threats, no GEN 12 Form provided, declaration of wrong results, mis-posting of results, inflating results, wrong assistance of voters, ghost voters, transportation of voters, denying voters entry to polling stations, publishing false statements and use of government resources.

The Petitioners in most of the electoral Petitions wanted the Court to declare the election of the winning candidates who were mostly cited as the 1st Respondent to be null and void by reason of non-compliance with the Constitution and the EPA, and the procedure for the conduct of elections. In other cases, the Petitioners prayed for an order of recount, verification and scrutiny of the votes cast in the election. The Petitioners also prayed for costs and any other reliefs that the Court may deem fit.

4.6 Processes before Courts Arrive at Decisions

The number of Election Petitions that were successful in the High Court (six but affecting five constituencies) was much lower when compared to 2011, when more than 10 members of Parliament lost their seats. The number of Election Petitions in 2011 was only 68, as opposed to the unprecedented 86 after the 2016 General Elections.

The question that begs an answer therefore is why is it that only a few election results were nullified in 2016 by the High Court? Before answering this question, one has to analyse the process of receiving evidence and what Courts take into account before arriving at their decisions.

Due to the nature of allegations that Election Petitions usually present, it is safe for one to conclude that a Court cannot arrive at a final decision and pronounce whether the election was valid or not without taking into account the evidence of the witnesses. In short, there is no default procedure in election Petition cases. In saying this, it is recognised that a matter can be disposed of on a technicality, but this would have not determined the rights of the parties.

35 Before a decision is arrived at by the Court, the Petitioner(s) may present the evidence on which the election Petition is based; the Respondent(s) adduce(s) evidence to rebut the evidence of the Petitioner(s); and the parties present oral or written submissions to the Court within a period directed. In presenting the evidence by the Petitioner(s) or adducing evidence in rebuttal by the Respondent(s), the usual format of receiving evidence by way of examination in chief, cross-examination and re-examination is used. This is the age-old standard by which material facts are proved. A Court is mandated to accord all parties concerned an opportunity to be heard and to appear in person or be represented by a Legal Practitioner. Parties are also at liberty to call Witnesses and to cross-examine any Witnesses in addition to a Court’s power to compel a person to testify as a Witness.

A Court may also receive evidence in any form, namely, oral evidence, affidavits, statements, documents, information or other matter. In the course of receiving such evidence, issues pertaining to admissibility of certain types of evidence may arise. A Court is required to make a decision one way or the other regarding the objections.

Having received the evidence and possibly submissions relevant to the Petition, the Court proceeds to prepare its judgment. There is no doubt that in doing so the question of relevance is cardinal in arriving at the facts at issue. A Court is required to make findings of fact, identify the issues and law in contention if any and then apply the law to the facts as found. Article 45 of the Constitution relating to principles of the electoral system and process as enshrined must be borne in mind where necessary in arriving at a decision.

It is necessary to point out that in coming to its decision, a Court may apply the legal principles and precedents established under the common law. Courts apply the law to the facts and may be persuaded by decisions of courts at the same level. However, they are bound by decisions of superior or senior courts if the matter is on all fours. This is the principle of stare decisis and applies to decisions made by superior courts in Zambia, specifically the Supreme Court and now the Constitutional Court. Courts can learn from common law principles but are not bound by those principles unless imported into the legal system.

36 4.7 Electoral Act of 2006 (Repealed) v. EPA of 2016 on Rendering Elections Void

In terms of the law, it is important to analyse the provisions of the Electoral Act of 2006 and the EPA of 2016 with regard to rendering elections void. Section 93 of the repealed Electoral Act of 2006 provided:

93. (1) No election of a candidate as a member of the National Assembly shall be questioned except by an election Petition presented under this Part.

(2) The election of a candidate as a member of the National Assembly shall be void ON ANY of the following grounds which is proved to the satisfaction of the High Court upon the trial of an election Petition, that is to say –

(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;

(b) subject to the provisions of subsection (4), that there has been a non- compliance with the provisions of this Act relating to the conduct of elections, and it appears to the High Court that the election was not conducted in accordance with the principles laid down in such provision 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 that candidate’s election agent or polling agent; or

(d) that the candidate was at the time of the election a person not qualified or a person disqualified for election.

(3) Notwithstanding the provisions of subsection (2), where, upon the trial of an election Petition, the High Court finds that any corrupt practice or illegal practice has been committed by, or with the knowledge and consent or approval of, any agent of the candidate whose election is the subject of such election Petition, and the High Court further finds that such candidate has proved that –

(a) no corrupt practice or illegal practice was committed by the candidate personally or by that candidate’s election agent, or with the knowledge and consent or approval of such candidate or that candidate’s election agent;

37 (b) such candidate and that candidate’s election agent took all reasonable means to prevent the commission of a corrupt practice or illegal practice at the election; and

(c) in all other respects the election was free from any corrupt practice or illegal practice on the part of the candidate or that candidate’s election agent’s; the High Court shall not, by reason only of such corrupt practice or illegal practice, declare that election of the candidate void.

(4) No election shall be declared void by reason of any act or omission by an election officer in breach of that officer’s 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.

On the other hand, Section 97 of the EPA provides as follows:

97 (1) An election of a candidate as a Member of Parliament, Mayor, Council Chairperson or Councillor shall not be questioned except by an election Petition presented under this Part.

(2) The election of a candidate as a Member of Parliament, Mayor, Council Chairperson or Councillor shall be void if, on the trial of an election Petition, it is proved to the satisfaction of the High Court or a Tribunal, as the case may be, that –

(a) a corrupt practice, illegal practice or other misconduct has been committed in connection with the election –

(i) by a candidate; or

(ii) with the knowledge and consent or approval of a candidate or of that candidate’s election agent or polling agent; and the majority of voters in a constituency, district or ward were or may have been prevented from electing the candidate in that constituency, district or ward whom they preferred;

(b) subject to the provisions of subsection (4), there has been non-compliance with the provisions of this Act relating to the conduct of elections, and it appears to the High Court or Tribunal that the election was not conducted in accordance with the principles laid down in such provision and that such non-compliance affected the result of the election; or

38 (c) the candidate was at the time of the election a person not qualified or a person disqualified for election.

(3) Despite the provisions of subsection (2), where, upon the trial of an election Petition, the High Court or a Tribunal finds that a corrupt practice or illegal practice has been committed by, or with the knowledge and consent or approval of, any agent of the candidate whose election is the subject of such election Petition, and the High Court or a Tribunal further finds that such candidate has proved that -

(a) a corrupt practice or illegal practice was not committed by the candidate personally or by that candidate’s election agent, or with the knowledge and consent or approval of such candidate or that candidate’s election agent;

(b) such candidate and that candidate’s election agent took all reasonable means to prevent the commission of a corrupt practice or illegal practice at the election; and

(c) in all other respects the election was free from any corrupt practice or illegal practice on the part of the candidate or that candidate’s election agent; the High Court or a Tribunal shall not, by reason only of such corrupt practice or illegal practice, declare that election of the candidate void.

(4) An election shall not be declared void by reason of any act or omission by an election officer in breach of that officer’s official duty in connection with an election if it appears to the High Court or a Tribunal 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.

The underlined parts of Sections 93 in the repealed Act and Section 97 in the 2016 Act may begin to explain why very few elections were nullified by the High Court in 2016 as compared to 2011 despite the unprecedented numbers of Election Petitions presented to the Court in 2016.

To start with, the 2006 repealed Act provided that an election would be nullified if the Petitioner proved any of the grounds as provided for in Section 93 (2) of the Act. This provision has been substantially altered in the 2016 EPA, as the grounds have been condensed.

By way of explanation, for an election to be nullified under the 2016 Act on account of a corrupt practice, illegal practice or other misconduct being committed in

39 connection with the election by a candidate, it must be proved that the corrupt practice, illegal practice or other misconduct was committed:

(1) by a candidate; or

(2) with the knowledge and consent or approval of a candidate or of that candidate’s election agent or polling agent;

(3) and the majority of voters in a Constituency, District or Ward were or may have been prevented from electing the candidate in that Constituency, District or Ward whom they preferred.

We will refer to the above as the ‘three-tier’ process, the first tier being that the candidate must be personally involved or that (the second tier) s/he must have the knowledge and consent or indeed approval of the corrupt practice, illegal practice or other misconduct or of that candidate’s election agent or polling agent. When the above factors are proved, it is still not enough to nullify an election until the third tier is satisfied and that is that the majority of voters in a Constituency, District or Ward were or may have been prevented from electing the candidate in that Constituency, District or Ward whom they preferred.

There is no doubt that in comparison with the 2006 Act the 2016 Act has raised the bar for nullifying an election. This is even more so when it comes to proving an election Petition: the standard of proof is higher than in ordinary civil cases. Indeed, Petitioners in election Petition cases have to establish and prove their allegations as raised in the Petition with a fairly high degree of convincing clarity. The Supreme Court provided guidance in the case of Michael Mabenga v. Sikota Wina, Mafo Wallace Mafiyo and George Samulela39, in which it was held that: “proof of an election Petition, although a civil matter is higher than the balance of probability, but less than beyond all reasonable doubt”.

From the above analysis, it goes without saying that Courts have to be a little bit more careful when making their decisions in election Petition cases, because the law on Petitions has changed substantially. This means that some decisions passed by the Courts prior to the 2016 EPA may not be entirely good law.

39 SCZ Judgement No. 15 of 2003

40 4.8 synopsis of the Decisions of the High Court

It was thus not possible to provide a comprehensive analysis of most of the decisions delivered by the High Court on the principle of sub judice – under judicial consideration and therefore prohibited from public discussion elsewhere. This therefore became a limitation of the research. That notwithstanding, it is clear from the decisions delivered by the Courts after the 2016 elections that the law was followed to the letter, and in most cases the Courts behaved with propriety in arriving at their decisions.

Below is a synopsis of some of the Judgments delivered by the High Court:

1. Sylvia T. Masebo v. Japhen Mwakalombe and ECZ – 2016/HP/EP/48 The Petition related to the Chongwe Parliamentary seat, which the Petitioner wanted to be nullified on account of alleged illegal practices by the st1 Respondent. The Petitioner testified and called other 10 witnesses and the st1 Respondent gave evidence of his own behalf and called other four witnesses. The 2nd called two witnesses.

After analysing the evidence presented to the Court, the Court held that the will of the people of Chongwe Constituency was expressed by the majority votes secured by the winning candidate, the 1st Respondent. The election of the 1st Respondent was therefore upheld and the Petition accordingly dismissed.

2. Edwin Simbwimba v. Matthew Jere and ECZ – 2016/HL/EP05 This Election Petition related to the Livingstone Constituency in which the 1st Respondent was declared a winner. The Petitioner testified on his own behalf and called seven witnesses. The 1st Respondent called five witnesses and the 2nd Respondent called two witnesses.

After analysing the evidence before the Court, the election of the 1st Respondent was upheld accordingly. The reasoning of the Judge was that even if some allegations such as commotion at the Totalling Centre caused by UPND cadres was proved, the same did not warrant a nullification of the results.

3. Jonathan Kapaipa v. Newton Samakayi – 2016/HP/EP/0030 This Petition related to Mwinilunga Parliamentary Constituency. The Petitioner polled 2,900 votes, while the Respondent polled 32,645 votes. The Petitioner called 15 witnesses, including himself, and the Respondent called 17 witnesses, including himself.

41 In dismissing the Petition and upholding the election of the Respondent, the Court observed that the import of Section 97 (2) of the EPA is that compliance failures do not automatically void an election. Where a party alleges non-compliance with the electoral law, the Petitioner must prove that there has been non-compliance with the law, but also that such failure to comply did affect the results of the election in a significant manner.

4. Richard Sikwebele Mwapela v. Miyutu Chinga – 2016/HP/EP/0016 This was an Election Petition challenging the declaration that the Respondent was a duly elected MP for Kalabo Central Constituency. The gap between the two candidates was 8,613 votes. At the hearing of the Petition, the Petitioner testified and called 12 other witnesses and the Respondent called 15 witnesses, including himself.

The Judge in delivering her Judgment observed that:

Arising from the provisions of Section 97 (2) of the EPA, an election of a Member of Parliament in my considered view can only be avoided if it is proved to the satisfaction of the High Court that such candidate or with his knowledge and consent or approval or that of his election or polling agents committed corrupt practices, illegal practices, or other misconduct. The section goes further in that it must also be proved that as a result of such corrupt practices, illegal practices, or other misconduct, the majority of voters in a constituency were or may have been prevented from electing the candidate of their choice.

What this entails is that the strict liability rule that was in the repealed Electoral Act of 2006 has been done away with meaning that some of the old cases or precedents are no longer good law … The test to be used is now more stringent than before as it must be borne in mind that election Petition is no ordinary Petition as it encapsulates a public interest.40

The Petition was accordingly dismissed as the Petitioner failed to prove the case to the required standard. The election of the Respondent was accordingly upheld.

5. Andrew Kafuta Kayekesi v. Dr. Chishimba Kambwili and Attorney General – 2016/HN/ EP/001 This was a Petition relating to Roan Constituency, in which the gap between the Petitioner and the 1st Respondent was more than 6,000 votes. The Petitioner

40 Page J93 of the Judgment

42 testified in his own right and called nine witnesses, while the st1 Respondent also testified and called four witnesses. Part of the allegations included use of Government resources and vehicles.

In its Judgment, the Court held that:

Bearing the totality of the evidence before me, and bearing in mind my findings, can it be said that the majority of the electorates in Roan Constituency were robbed of the opportunity to elect a person of their own free will and choice? There is no doubt that there was a wide difference of over 6,000 votes between the Petitioner and the 1st Respondent. But sight should not be lost that the alleged corruption took place on the voting day at only two polling stations, Mangano and St. Thomas, of a one off incident each. It could not therefore be reasonably said that the election was so flawed that the defects seriously affected the results which no longer represented the true free choice and free will of the majority of the voters in Roan Constituency. For the above reasoning and conclusions, I find and hold that the Petitioner has failed to prove his Petition to the requisite standard and it lacks merit.41

6. Josephine M. Limata v. Makozo Chikote – 2016/HP/EP/0020 The Petition herein related to the elections held in Luampa Constituency. The Petitioner polled 2,921 votes and the Respondent polled 9,524 votes. The Petitioner apart from herself called 11 witnesses and the Respondent called 16 witnesses apart from himself.

In passing his Judgment, the Honourable Judge said the following:

Primordially, I must remark that the EPA No. 35 of 2016 was assented to on 6th June, 2016. Therefore, reported cases based on the repealed Electoral Act of 2006, or before, may have limited precedential value to this adjudication, in particular on the grounds for nullification of the Parliamentary election. The MICHEAL MABENGA case, and the JOSEPHAT MLEWA case wherein it was held that satisfactory proof of any one corrupt or illegal practice or misconduct in an election Petition is sufficient to nullify any election, regardless of the wrongdoer, is no longer law in view of the current Act.42

41 Pages J89 to J90 42 Page J29

43 The Court accordingly upheld the election of the Respondent and dismissed the Petition.

7. Rose Salukatula v. Victor Lumayi – 2016/HP/EP/0028 The Election Petition related to the Chavuma Constituency. In arriving at its judgment, the Court made the following observations:

Having determined that the Respondent offended sections 81 and 89 of the Act, as well as sections 15 (1) (c) and (h) of the Code of Conduct, I must undertake an impact analysis to determine whether the breaches meet the litmus test prescribed under section 97 (2) (a) to justify the avoidance of the election of the Respondent.

Chavuma Constituency had 43 polling stations with a total of 13,810 votes as reflected in the declaration of results exhibited on page 7 of the Respondent’s Bundle of Documents.

From my findings, there are only four out of the forty three polling stations where I found that the Respondent was in breach of the Act. These were Kambuya, Kakhoma, Sewe and Mandalo.

In Kambuya, I found that the Respondent gave one Chitenge to PW2. In his testimony, PW2 assured the Court that he was neither influenced by the gift nor did he influence any other person on account of the gift. It follows therefore, that this misconduct had no impact on the result of the elections.

However, the Petitioner was successful in satisfying me, with a high degree of clarity, that in Kakhoma, the Respondent was (i) greeting people in voting queues using the UPND symbol as he visisted Kakhoma Polling Station and (ii) that during the campaign period, the Respondent aligned the Referendum to same sex marriages and attributed the attempt to introduce same sex marriages to the Patriotic Front.

The Respondent received 686 votes out of 1148 ballots in Kakhoma.

In Sewe, the Petitioner was successful in satisfying me, with a high degree of certainty, that the Respondent was embracing people in voting queues.

The Respondent received 233 out of 633 ballots.

In Mandalo, as in Kakhoma, the Respondent was found wanting as regards falsely aligning the Petitioner and her party to attempting to introduce same sex marriages.

44 In Mandalo, the Respondent received 67 votes from the 445 ballots.

The total number of votes which the Respondent received in contentious areas of Kakhoma, Sewe and Mandalo, where there may have been an impact, was 986 votes, which represented less than 10% of the total votes cast in Chavuma Constituency.

As I indicated in the genesis of this Judgment, my position is that there can only be one of the three conduits prescribed under Section 97 of the Act, to which this Petition can be considered, namely Section 97 (2) (a).

Section 97 (2) (a) of the Act is cast conjunctively. That is, it requires that the transgression must not only exist, but it must necessarily result in the possibility of the prevention of the majority of voters in that constituency from electing their preferred candidate.

My impact reveals that less than 10% of the total number of voters in Chavuma may have been prevented from electing their preferred candidate by virtue of the Respondent’s misconduct.

Clearly, any percentage less than 50% of the electorate represents a minority, thereby falling foul of Section 97 (2) (a) of the Act. This being the case, avoidance of the election of the Respondent would not be supported by the law, as applied.

Accordingly, the Petition of the Petitioner filed on 26th August, 2016 is dismissed.

The other Petitions were dismissed by the Courts on similar reasoning as above of failure by the Petitioners to prove their allegations to the required standard of proof. Some of these are:

8. Mulenga Sata v. Given Lubinda, ECZ and Attorney General – 2016/HP/EP/0050 9. Joseph Mulyata v. Mwilola Imakando – 2016/HP/EP/0023 10. Changano Kakoma Charles v. Kundoti Mulonda 11. Robert Chiseke Taundi v. Mwene Naluwa – 2016/HP/EP/0009 12. Brian Sikazwe v. Chansa Hastings and ECZ – 2016/HP/EP/0058 13. Peter Kahilu Kazhila and Victor Chibvumbu Kachaka v. Misheck Mutelo, ECZ and Attorney General -2016/HP/EP/0019; and 2016/HP/EP/0044 14. Alfrida Kansembe v. Mwenya Munkonge and ECZ – 2016/HP/EP/001 15. Rodrick Chewe v. Mwenya Munkonge, Alfreda Kansembe, ECZ and Attorney General – 2016/HP/EP/0059

45 16. Abel Musonda v. Given Katuta and ECZ – 2016/HP/EP/0024 17. Sunday C. Maluba v. Rodgers Mwewa, ECZ and Attorney General – 2016/ HP/EP/0035

4.9 Conclusion

This chapter has shown that following the 2016 Parliamentary Elections, an unprecedented number of 86 Election Petitions were filed in the High Court by losing candidates. An analysis of how the Petitions were dealt with by the High Court has been provided and it is safe to conclude that the High Court Judges were on firm grounds in their findings when arriving at the decisions in the different Election Petitions presented to them.

46 Chapter 5

An Analysis of the 2016 Local Government Elections

5.1 Introduction

The Local Government Elections of 11 August 2016 opened with a pre-nomination Petition in which two Lusaka-based lawyers and the Young African Leaders Initiative (YALI)43 filed a Petition in the Constitutional Court against the ECZ and the AG whose aim was to stop political parties from sponsoring candidates for Local Government Elections. The Petitioners contended that Article 60 (1) (b) of the Constitution has limited the right of political parties to sponsor candidates for election or nomination to a State office and argued that Councillors, Mayors and Council Chairpersons are not State Officers as defined by the Constitution. This first-ever Petition to be heard and determined in Zambia’s Constitutional Court history was unsuccessful and Councillors were adjudged to be State Officers who occupy State Office as defined by Article 266.

After the general election of 11 August 2016, 58 Local Government Election Petitions were filed in accordance with the EPA and LGET Rules. Generally, Petitioners and Respondents in a number of Petitions raised preliminary issues that were quickly heard and disposed of by the Tribunals.

Among the issues that saw their way into these interlocutory applications were the failures by either the Petitioners to file the Petitions within the stipulated time as per the Rules of the Tribunals or the Respondents filing responses to Petitions outside the stipulated time, matters that we shall address in this Report. An analysis of the determination of Petitions made by the Tribunals brings into question the standard used by each Tribunal to determine that either the standard of proof in the Election Petition was or was not met by the Petitioner for the election to be nullified or upheld.

43 Noel Siamondo, Kelly Kapianga, Young African Leaders Initiative Ltd v ECZ and Attorney General – 2016/CC/009

47 It is important to reiterate that it was the first time that Petitions at the Local Government level were being heard by LGETs pursuant to the provisions of the EPA. In this regard, the LGETs that were constituted weeks before the Petitions were filed operated under difficult circumstances in somewhat uncharted waters.

5.2 Filing, Service and Response to Petitions

We note that depending on which District the Petition was filed in and what procedure was followed, adherence to rules or variation of these shaped the outcome of the Petitions. The timing for the filing of Petitions, service and providing Answers were some of the issues that had a bearing on both the direction Petitions would take and the outcome.

Section 102 (1) of the EPA empowers the Chief Justice to:

Make rules regulating generally the practice and procedure of the High Court and Tribunals with respect to the presentation and trial of Election Petitions, including rules as to the time within which any requirement of the rules is to be complied with and as to the costs of and incidental to the presentation and trial of the Election Petitions and as to the fees to be charged in respect of proceedings therein, and generally as regard to any other matter relating thereto as the Chief Justice may consider necessary or desirable.

Section 100 (3) of the EPA provides the 14-day period for the filing of Local Government Election Petitions: The Section reads:

An election Petition shall be signed by the Petitioner or by all the Petitioners, if more than one, and shall be presented not later than fourteen days after the date on which the result of the election to which it relates is duly declared.

On the other hand, the LGET Rules, made by the Chief Justice, provide for Petitions to be filed within seven days after the declaration of the result. Rule 8 (2) 2 of the Rules states: “A person may file an election Petition within seven days of the date on which the result of an election is declared”.

The inconsistency in the provisions of the LGET Rules with provisions of the main Act raises a question of law that other Tribunals were able to resolve by enforcing provisions of the main Act as opposed to the Rules. Upon filing of the Petition, Rule

48 10 requires that service of the Petition on the Respondent is made two days after the filing of the Petition, while Rule 10 requires the Respondent to file an Answer to the Petition within seven days after being served. Section 106 of the EPA provides for the hearing and determination of the election Petition “within thirty days from the date of filing an election Petition”.

5.3 Allegations

In almost all the Petitions, a pattern of allegations emerged that led Petitioners to file Petitions before various Tribunals. Depending on the Province and which Advocates were retained by Petitioners to draft their Petitions, the Petitions had more or less the same wording and allegations made, which related to illegal practices, corrupt practices, violence and breach of the Electoral Code of Conduct. For example, most Petitions in Western Province had the following allegations:

1. Brewing of beer and distributed money at polling stations to induce voters. 2. Distribution of “electronic pens”44 to voters in queues at all polling stations as a campaign tool to use for marking of the ballot papers and upon return of the pens after voting, receive cash payment. 3. Distribution of maize, slaughtering of animals, and foodstuffs to lure voters to vote in the favour of Respondents. 4. Violence and assault of supporters. 5. Removal and destruction of campaign posters. 6. Campaigns based on assassination of the character by Respondents. 7. Chasing away of voters on Election Day thereby preventing them from voting. 8. Distribution of ordinary and unbranded chitenge materials which does not constitute campaign materials.

We observe that most of the Petitions and Answers to the Petitions were drafted by the same Advocates and as a result we noticed similarity of allegations and responses from one petition to another.

44 The allegation was that voters were given pens to use when voting for candidates and threatened that if the voted for another candidate, they would be traced using computers as the pens had a component to do just that (see for example, Shomeno Dominic v. Mwiya Mutapwe - 2016/LGET/02)

49 5.4 Remedies

In almost all the Petitions, the Petitioners were seeking the same remedies thus:

1. A declaration that the election of the Respondents was void. 2. An order that the declaration of the winning of the Respondent was null and void and must be set aside. 3. A declaration that the election is invalid by the reason of non-compliance with the Constitution and with the EPA and the procedure for the conduct of the elections prescribed by the ECZ pursuant to the provisions of the EPA. 4. An order that the Respondent be disqualified from being a candidate in the by-election for not complying with the provisions of the Constitution and the EPA. 5. An order that the Respondent bears the costs of this cause. 6. Any other relief the Tribunal may deem fit.

The Petitions were based on Sections 81, 82, 83, 84, 86, 87, 89, 91, 92, 94, 96, 97, 98 99, 100 and 110 of the EPA No. 35 of 2016 of the Laws of Zambia. These Sections are in parts VIII and IX of the said Act covering election offences as well as how an aggrieved party can bring an election Petition before the LGET. The Petitioners also relied on the provisions of the Electoral Code of Conduct.

5.5 local Government Election Petition Statistics

Summary of LGE Petitions Totals

Dismissed (Tribunal level) 26 Dismissed but active on appeals to Constitutional Court 09 Successful 10 Successful and Dismissed on appeal by Constitutional Court 01 Successful and withdrawn on appeal from Constitutional Court 01 Withdrawn or Abandoned 11 TOTAL 58

The full list of Petitions is attached as annexes at the end of the Report.

50 5.6 conduct and Outcome of LGE Petitions

Of the 58 Local Government Elections Petitions, 11 found their way to the Constitutional Court by way of appeal against the Judgments of the Tribunals. Since the appeals were lodged, one appeal in the case of Edward Musamba v. Patrick Zulu &ECZ - 2016/CC/A003 was withdrawn by the appellant, while the Constitutional Court has also dismissed an appeal in the case of Sikalange Luke v. Chisha Saphrine and ECZ - 2016/CC/A012, thereby confirming the Judgments of the Tribunals in these matters. The nine appeals that are pending before the Constitutional Court are therefore not the subject of this analysis.

In Edward Musamba, the Tribunal nullified the election of Mr Musamba based on the fact that the Petitioner, Patrick Zulu, had proved one of the allegations that the Respondent who was duly declared Council Chairperson for Masaiti District Council had defamed and assassinated the character of the Petitioner by calling him a murderer and a thief during campaigns. The Tribunal applied the one rule in the Mabenga case that satisfactory proof of any one act of corrupt practice or illegal practice and misconduct in an election is sufficient to nullify the election provided that the majority of voters were prevented from voting for a candidate of their choice.

A similar Petition where the ECZ made mistakes in the tallying of votes and where the Presiding Officers generated more than one GEN 12 Form with different results appeared in the case of Penelope Carveshame Mwenda v. ECZ and Sipho Hlazo - 2016/P/LGEP/001 arising from the election of Councillor for Nyemba Ward in Chilanga District. The Petitioner contended that the Presiding Officer altered the number of votes received by the candidates in favour of the 2nd Respondent, Sipho Hlazo, who was declared duly elected by the Returning Officer. While the Tribunal, upon review of the evidence and a recount, agreed that the standards of conducting elections were adhered to, it upheld the claim that the 2nd Respondent was not duly elected and annulled his election. The Petitioner was thus declared the duly elected Councillor.

Commenting on the conduct of election officers who cause such anomalies, the Tribunal stated:

The confusion created by 1RW2 (the Presiding Officer) cannot pass without comment in a democracy like Zambia where the voice of the masses in relation to how and by whom they wish to be governed is expressed through the ballot.

51 Persons such as Presiding Officers entrusted by law with running the electoral process at Polling Stations and indeed any place elsewhere must understand the seriousness of the task that they are given. One cannot simply say they misplaced critical documents because of ‘confusion’. This situation is unacceptable. The situation was further compounded by 1RW2 filing in an Announcement of Results Form (GEN 12) away from the Polling Station and having the same signed outside the Polling Stations then trying to cover up his dereliction of national duty. In the case of Akashambatwa Mbikusita Lewanika, the Supreme Court held that: Elections are the sole lawful constitutional and legitimate method for the peaceful and legal acquisition of power and the culmination of exercise of some basic fundamental rights. The various flaws in the electoral process which had been established should be addressed by the authorities.

In Temani Leslie Banda v. Samuel Lupito, ECZ and Attorney General - 2016/LGET/01 the Petitioner contested the election on a UPND ticket as a Councillor for Lulamba Ward in Chingola Constituency, where the ECZ declared the 1st Respondent, Samuel Lupito, who stood as an Independent candidate, as the duly elected winner of the 11 August 2016 election. The Petitioner contended that the declaration of the 1st Respondent was null and void since it was the Petitioner who had polled the highest number of votes and not the 1st Respondent.

ECZ as the 2nd Respondent admitted that their Information Technology (IT) Assistant Returning Officer erroneously transmitted wrong figures to the ECZ, which culminated in the declaration of the 1st Respondent as winner. The Tribunal satisfied itself that the election staff mis-posted the election results and, accordingly, the Tribunal upheld the Petition and nullified the election of the 1st Respondent and duly declared the Petitioner as the winner.

In Munyamba Likando v. Mayeya Mayeya - 2016/LGET/22, Munyamba Likando stood on the PF ticket for election as councillor in Mpuangu Ward, where the Respondent, Mayeya Mayeya of the UPND, was declared duly elected on 13 August 2016. In his Petition filed outside the 14-day period allowed by law, Mr Likando, among other claims, averred a myriad of irregularities, including non-compliance with the EPA, brewing and distribution of local beer to induce voters, defamation and character assassination of the Petitioner and other PF contestants by the Respondent and his agents, acts of violence by members of the Respondent’s party, stealing food and other personal belongings, threatening violence, giving K50 to voters on voting

52 day by UPND supporters, giving pens to voters for use in voting, usage of ordinary materials, removal of campaign posters for the Petitioner by the Respondent and his agents.

Counsel for the Respondent raised a preliminary issue, viva voce, that the Petition be dismissed because it was filed out of time, on 29 August 2016, for an election that was declared on 13 August 2016. Rule 8 (2) of the LGET Rules requires that Petitions be filed within seven days from the date of the declaration, while Section 100 (3) of EPA stipulates that the Petition shall be filed within 14 days from the date of the declaration of the election result. It was Counsel’s further position that the Respondent was not served within the two days as prescribed by Rule 10 of the Tribunals’ Rules. Counsel therefore contended that the Respondent was of the view that there was no Petition before the Tribunal, ab initio, hence did not file any Answer.

The said application was dismissed on account that Rule 8 (2) of the Tribunal Rules, on which the application was anchored, was at variance with Section 100 (3) of the EPA as the principal Act. The Tribunal opined, “the said Rule 8 (2) is void to the extent of its inconsistency with the Principal Act”. Earlier the Tribunal provided the guidance that the “within rule” was a luxury that could be done away with, citing the Supreme Court authority in Republic of Botswana v. Mitre Limited,45 where the following was said regarding rules of procedure:

The High Court Rules were rules of procedure and were therefore regulatory and any breach should be treated as a mere irregularity which was curable.

Where, in the beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of the time, place, manner, form or content or in any other respect the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings or document, judgment or order therein.

And in the Leopold Walford case (2) at page 205 we said: As a general rule, the breach of a regulatory rule is curable and not fatal.

45 (1995-97) ZR 113

53 While pointing at Counsel’s calamitous approach of neglecting to file an Answer to the Petition on account that she felt the Petitions were incompetent, the Tribunal allowed Counsel to file an Answer by the following day. The Respondents filed an Answer, which in essence was a denial of all the allegations.

The Tribunal heard the evidence of the Petitioner, which it concluded to have been hearsay evidence that it found inadmissible. The Tribunal also had a problem believing the testimonies of the Petitioner’s evidence, which was not backed by any evidence the Tribunal could rely upon. The Tribunal thus noted: “The candidates or indeed the general citizenry would do well in future to gather sufficient cogent evidence and bring credible witnesses”. Despite the Petitioner and his witnesses being at pains to link the Respondent or his authorised agents to the allegations, the Tribunal dismissed the Petition.

In Mubumbulwa Godfrey v. Katoma Katoma - 2016/LGET/19, the Petitioner, Mubumbulwa Godfrey, was a losing candidate in the Local Government Elections in which he stood on a PF party ticket as a Councillor in Kaungamashi Ward. Dissatisfied with the outcome of the election, he filed a Petition against the winning candidate, Katoma Katoma of the UPND.

The Petitioner alleged irregularities, which included non-compliance with the EPA, brewing and distribution of local beer to induce voters, defamation and character assassination of the Petitioner and other PF contestants by the Respondent and his agents, acts of violence by members of the Respondent’s party, stealing food and other personal belongings, threatening violence, giving K50 to voters on voting day by UPND supporters, giving pens to voters for use in voting, usage of ordinary materials, and removal of campaign posters for the Petitioner by the Respondents and his agents.

The Respondent did not file an Answer and the Tribunal allowed trial to proceed. The Petitioner called a total of four witnesses, with the Petitioner simply reaffirming his allegations of malpractices, illegal practices and corrupt practices allegedly perpetrated by the Respondent and his agents, some of which he said were reported to the police, but not all because of the distance from Kaungamashi to the Police Station. He did not have any evidence of making such a report to the Police. He conceded that he reported only one incident of violence and he could not remember the name of the Police Officer he dealt with at the Station. He admitted that candidates for Councillors in PF did not have posters and only Parliamentary candidates and the Presidential candidate had posters. He concluded by saying

54 the removal of the posters disadvantaged him because if the President loses the election he also loses.

At the close of the Petition, when all of the Petitioner’s witnesses had testified, albeit oral testimonies not backed by any hard evidence, the Tribunal stated:

In evaluating the evidence we have warned ourselves of two things. Firstly that the burden of proof to prove all the allegations contained in the Petition, to the required standard of proof, lies solely on the Petitioner. Secondly that the standard of proof is that, it is higher than the balance of probabilities but lower than beyond reasonable doubt. This is in line with the Supreme Court judgment in Anderson Mazoka case where evidence adduced must establish the issues raised to a fairly high degree of convincing clarity.

The allegation in the Petition that during the campaigns throughout the Ward the Respondent brewed beer for the electorate in order to induce them to vote for him failed, as evidence on this allegation came from three witnesses – that is, PW1, PW2 and PW4. PW1’s evidence was very general in nature, with no mention of where he saw the Respondent doing so.

On the second allegation, that during the campaigns the Respondent and his Chairman and the MP was heard at all polling stations saying that the Petitioner is a thief and a drunkard, the Tribunal found the evidence from PW1 and PW2 not credible, the witnesses having failed to state where they heard the Respondent call the Petitioner a thief.

Surprisingly, the Tribunal made the following pronouncements despite its earlier finding:

However, we accept the evidence that the Respondent did refer to the Petitioner to be a thief and a drunkard on the basis that he did testify that he actually raised the issue with the Respondent. The evidence is further corroborated by PW2 who indicated in re-examination that he called the Petitioner to tell him of what the Respondent said at the meeting held at Mushukwa Village.

The other allegations also could not succeed based on insufficient evidence or that the evidence did not fall within the ambit of a prohibited act, e.g. ferrying voters to polling stations using private motor vehicles.

55 The Tribunal turned to the electoral law by comparing the two Sections and noted that it was to them clear that Section 93 (2) (c) of the Electoral Act No. 12 of 2006 was no longer in operation and had since been replaced with the provisions of Section 97. The Tribunal stated:

This, in our opinion, entails that for an election Petition to succeed the Petitioner must prove the corrupt practice, illegal practice and other misconduct complained of and in addition, he must show that the majority of voters in a constituency, district or ward were or may have been prevented from electing the candidate in that constituency, district or ward whom they preferred.

It is no longer sufficient to prove the allegation only. The Petition was thus dismissed. In Nyame Mulimukwa v. Kubongana Kubongana - 2016/LGET/27, Nyame Mulimukwa, who stood on a PF ticket, was seeking the nullification of the election of the Respondent, Kubongana Kubongana, as Councillor for Sikabenga Ward of Sioma District for committing acts of bribery, corrupt practices, threatening violence and character assassination, which the Petitioner claimed prevented the majority of voters from exercising their freedom in electing a candidate whom they preferred.

Despite the allegations and the testimony made by the Petitioner and witnesses, it emerged clearly that the Petitioner had not made any report of any of his complaints to the District CMC, although he had reported the defamation of his party President by the Respondent to the Police. He had petitioned the election based on what had been reported to him by other people. The evidence of both parties and their witnesses, all supporters from their political parties, were based on mere allegations against each other without any tangible evidence presented before the Tribunal. The guidance from the case of Simasiku Kalumiana v. Geoffrey Lungwangwa and ECZ guided the Tribunal on the credibility of witnesses, where the Supreme Court held: “The testimony of witnesses such as police officers and monitors during election is more credible than that of party officials and election officers”.

The presentation of the Petition was brought into question because instead of the signature of the Petitioner as provided for under Section 100 (3) of the EPA, his name was endorsed. Further, the Petition had the date of 1 September 2016 when it was filed on 29 August 2016 as per Court records. The Tribunal stated that “the endorsement of the name is for purposes of the Petitioner’s signature … we find that the Petition was signed by the Petitioner and therefore properly before the Tribunal”.

56 As in the case Sitali Sililo, analysed and cited below, the Tribunal found the pleadings defective but was of the considered view that the said defects and/or irregularities were minor and did not go to the substance of the matter, thus curable. The Tribunal stated: “It is trite law that curable defects in civil actions cannot nullify the action if the affected party takes a fresh step after becoming aware of the defect/irregularity as the same amounts to acquiescence”.

On whether the Petitioner had proved his allegation, the Tribunal provided the guidance that “the Petitioner bears the burden of proving his allegations. It is not for the Respondent to dispense with the Plaintiff’s allegations”.

The Tribunal noted that the Petitioner failed to show that the acts complained of did influence the voters, preventing them from electing the candidate of their choice, as this is what the law now requires. The Tribunal remarked: “more than just the allegations, the Petitioner (i.e. Nyame Mulimukwa) also needs to show that as a result of the act complained of, (which we have found not to be proven) the majority of voters in the ward were prevented from electing the candidate of their choice”. The Petition was thus dismissed.

In the cases of Sitali Sililo v. Mukelenge Mushe - 2016/LGET/29, Mebelo Muyunda v. Chibinda Mwangala - 2016/LGET/25 and Innocent Mubiana v. Mushimba Kaumba - 2016/ LGET/13 the facts and the findings of the Tribunal and guidance from the case of Nyame Mulimukwa are similar in nature.

In the Sitali Sililo case, the Tribunal stated,

Unlike the old position in the now repealed 2006 Electoral Act, the current law as provided for under Section 97 (2) (a) of the Act, is that the misconduct upon which an election can be nullified or voided must have been committed by the candidate or his agent with his knowledge and consent or approval of his agent.

The case of Capt. Cosmas Moono v. Keith Akekelwa Mukata cited earlier, in which the Court held that where there are general allegations by the Petitioner and general denials by the Respondent the Court will not entertain the situation, acted as a basis for the refusal by the Tribunal to entertain the allegations.

In the cases of Mambo Maunga v. Siyanga Mukela - 2016/LGET/28 and Wamunyima Nosiku v. Sililo Muka E. - 2016/LGET/26, trial had commenced in both Petitions in which Petitioners were challenging the election of the Respondents. When the

57 Petitioners were asked whether they had prepared and signed the Petition, Mambo Maunga stated that he signed the Petition on 1 September 2016 but had filed it on 29 August, 2016, agreeing that he signed only three (3) days after having filed it, while Wamunyima Nosiku admitted he was not the one that wrote the name that appeared on the Petition. In toto, the Tribunal came to the conclusion that, even though they had begun hearing the Petitions, the Petitioners had not signed the Petitions filed on 29 August 2016.

In dismissing the Petition, the Tribunal remarked:

Although we proceeded to hear the case in full, we are of the view that in light of the decision we have reached and for the reasons given above, it is not necessary to delve into the merits or demerits of the case and we award the costs to the Respondent.

In Sipalo Josephine Mulima v. Mufiti Gildnard - 2016/LGET/12, the Petitioner contested the election of Mufiti Gildnard on the basis that the Respondent did not qualify to contest the elections of Council Chairperson in Mwandi District. The Petitioner contended that the Respondent had used a false Grade 12 School Certificate that she claimed was verified when, in fact, it was not.

The Tribunal found that the Respondent who had been declared as elected Chairperson had in fact used a forged Grade 12 Certificate and also a forged confirmation letter from ECZ verifying the result. The Tribunal declared the election of the Respondent null and void and called on the Director of Public Prosecutions and ECZ to take appropriate steps against the Respondent.

In Kebby Kashinamilunda v. Geoffrey Chumbwe and ECZ - 2016/P/LGET/006, the Petitioner was a candidate for Council Chairperson for Chongwe District, where the 1st Respondent was declared as duly elected after the 11 August 2016 elections. The Petitioner averred that the 1st Respondent engaged in a campaign that was associated with malpractices, corrupt practices and illegal acts, including violence against his supporters. It was alleged that ECZ and the 1st Respondent collaborated to rig elections in favour of the 1st Respondent.

The Tribunal found that the allegations of illegal practices were not committed by or with the knowledge of the Respondent and/or his agents and thus dismissed the Petition and upheld the election of the 1st Respondent.

58 5.7 analysis of Tribunal Judgments 5.7.1 On the Burden of Proof and Observations In the determination of disputes resulting from Petitions before the various Tribunals, a settled position of the law that the burden of proof lies on the Petitioner, to prove his or her case, was constantly espoused and that the Petitioner must achieve a standard of establishing the issues raised to a fairly high degree of convincing clarity. We note that most Tribunals relied on the Supreme Court authority of Anderson Kambela Mazoka, where the Court stated that “if the Petitioner failed to prove his case, the Respondent will not need a defence anyway and it did not matter that the defendant did not file an answer”.

For instance, in making a commentary on why this ought to be so, the Tribunal in the case of Mwakamui Peter v. Simona Lufwendo - 2016/LGET/20 stated:

It appears to us that one of the reasons the Petitioners cannot have the default judgment (whenever a defence has failed or no answer has been given by the Respondents) is that Section 97(2) of the EPA is crafted with the spirit to limit the occasions on which an election must be declared invalid … the authority in Morgan v. Simpson46 tells us that an election is an expensive venture and ought not to be set aside lightly …

We have examined section 97 of the EPA and confirm that that an election can only be declared to be void after a trial and not before whether the Respondent has filed an answer or not.

On the contrary, another Tribunal, in its Ruling on an interlocutory matter in the case of Shomeno Dominic v. Mwiya Mutapwe - 2016/LGET/02, clearly stated:

We have few observations to make with regards to the provisions of Subsections 2 and 3 of Section 97 of the EPA as the same relate to this case. The first and general observation is that much as Subsection 3 purports to subordinate Subsection 2 to it, Subsection 2 in its current form is not subjected to Subsection 3.

The second observation is that Subsection 3 shifts the burden of proof on the Respondent once the Petitioner has discharged his burden.

46 [1974] 3 All ER 735

59 Further, suffice to note that with regards to this case, the provisions of Subsection 3 do not arise because the Respondent after neglecting or failing to file an Answer was not entitled to call witnesses to prove that in fact, a corrupt practice, illegal practice or other misconduct against the law was not committed by the candidate (the Respondent) personally or by that candidate’s election agent, or with the knowledge and consent or approval of such candidate or that candidate’s election agent …

The pattern by different Tribunals in interpreting the intent of the EPA and the demand for strict or lack of strict adherence to the Rules had an impact on the various outcomes of the cases before them.

For instance in two different cases, the Tribunal guided and allowed the Respondents to file an Answer out of time, while in two other different cases, another Tribunal refused Respondents to file an Answer, although it acknowledged the failure to file an Answer was fatal to the cases of the Respondents.

5.7.2 on Evidence As regards evidence, the Tribunals took a similar standard that evidence adduced must establish the issues raised to a fairly high degree of convincing clarity and that proven defects or electoral flaws must establish that the majority of voters should have been prevented from electing the candidate whom they preferred. In application of this standard, it is noted that one LGET would proceed to nullify an election while another would refuse to do so based on adduced evidence. However, none of the Tribunals that nullified an election explained how it arrived at the determination that the “majority of people who voted” in a Ward or District were prevented from voting for a candidate of their choice.

Examining Judgments on cases with similar issues and facts, we conclude that reliance in nullifying an election, in some cases, appear to have been necessitated by the failure on the part of the Respondents to rebut the allegations advanced by Petitioners, supported by statements from Petitioners’ witnesses.

The Anderson Kambela Mazoka case should be the ultimate authority, where the Supreme Court stated as follows on page 173:

Earlier in 1982, in Mohamed v. the Attorney-General, this Court said on burden of proof:

60 An unqualified proposition that a Plaintiff should succeed automatically whenever a defence has failed is unacceptable to me. A plaintiff must prove his case and if he fails to do so the mere failure of the opponent’s defence does not entitle him to judgment. I would not accept a proposition that even if a plaintiff’s case has collapsed of its inertia or for some reason or other, judgment should nevertheless be given to him on grounds that a defence set up by the opponent has also collapsed. Quite clearly a defendant in such circumstances would not even need a defence.

We held in that case, that a plaintiff cannot automatically succeed whenever a defence failed; he must prove his case. It follows that for the Petitioners to succeed in the present Petition, it is not enough to say that the Respondents have completely failed to provide a defence or to call witnesses, but that the evidence adduced establishes the issues raised to a fairly high degree of convincing clarity in that the proven defects and the electoral flaws were such that the majority of voters were prevented from electing the candidate whom they preferred; or that the election was so flawed that the defects seriously affected the result which could no longer reasonably be said to represent the true free choice and free will of the majority of voters. This is the bottom line we alluded to in the Chiluba case (3).

5.7.3 on Witness Testimonies without Supporting Evidence It is noted in the majority of Petitions that the Petitioners and their witnesses failed to provide supporting evidence that linked either the Respondents or their agents to alleged illegal practices, corrupt acts or acts forbidden by both the EPA and the Code of Conduct. Some LGET placed a heavy reliance on the witness “I-was-told or heard” (hearsay) testimonies that could not be collaborated with other verifiable evidence such as police reports or medical reports.

The pronouncements by the Privy Council in Subramaniam v. Public Prosecutor47 ought to remain helpful to Tribunals when placing reliance on statements made by a witness:

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made.

47 [1956] 1 WLR 965, p. 970

61 In some cases, witnesses would just give oral explanations that campaign teams of candidates whose election was being Petitioned brewed beer and distributed the same to people during the campaign period or that the Respondents and agents were removing campaign posters or distributing chitenge materials without any evidence to back up such claims or testimonies. Some Tribunals noted that other tangible evidence such as police reports, medical reports, or complaint letters by petitioners to district CMCs would have helped to make their case.

Again, some Tribunals cautioned themselves against reliance on testimonies of witnesses who were either party officials or election officers by reminding themselves of the holding of the Supreme Court when, in the case of Simasiku Kalumiana v. Geoffrey Lungwangwa and ECZ, provided the following guidance: “The testimony of witnesses such as police officers and monitors during election is more credible than that of party officials and election officers”.

5.7.4 on Rules of Procedure In examining the work of the Local Government Election Tribunals, it would appear that Tribunals seem to have varied in their interpretation of the Rules pertaining to the filing and service of Petitions and the time in which Answers were to be filed. This largely affected how parties presented their arguments and had an effect on the outcome of Petitions. In one instance, a Tribunal went further to declare Rule 8 (2) of the LGET Rules void, although its jurisdiction to make such a declaration remains questionable.

In the case of Mwakamui Peter, the Tribunal relaxed the strict enforcement of Rules when it guided parties by quoting the Morgan48 case, where Stephenson LJ observed:

Failures to comply with the rules or to use the right forms do not void an election unless they have affected its result; but any departure from the principles of election by ballot embodied in the statute itself will void an election. The negative form of the section emphasizes that an election is a serious – and expensive – matter and is not lightly to be set aside. Like its successor, s 37 of the 1949 Act,–

it is negatively stated to limit occasions when an election must be declared invalid. In other words it is an enabling section setting out circumstances in which, despite irregularity, a new election need not be held.

48 Supra

62 In Shomeno Dominic, the Tribunal made the following pronouncements on the Respondent’s failure to file an Answer:

The Respondent did not file an Answer to the Petition. The Tribunal ordered that the Respondent was not entitled to call witnesses because he did not file an Answer …

We observed that the provisions of Rules 17 (2) and 19 (b) of the Rules which were quoted by both Counsel seemed to suggest that it is mandatory to hear the Respondent at trial. However, it was our view and we agreed with the Petitioner’s Counsel that the same is premised on the assumption that the Respondent would have filed an Answer in terms of Rule 11 before hearing. The two Rules should not be read in isolation but together with Rule 11 that makes it mandatory to file an Answer.

In sum, we held that failure to file an Answer by the Respondent was fatal (Emphasis supplied).

5.7.5 on Illegality and Fraud In both the Penelope Carvshame Mwenda and Temani Leslie Banda cases, the Tribunals noted the conduct of election officials, which borders on illegalities and incompetence, and whose net effect is the failure by the ECZ to conduct elections that meet the constitutional requirement of accountability, efficiency and transparency of the electoral process. Further, in the case of Sipalo Josephine Mulima, the Tribunal satisfied itself of the criminal behaviour of the Respondent, who forged an academic qualification and the verification letter from the ECZ.

At the conclusion of the trial of election Petitions, the EPA empowers the Tribunals to submit reports of corrupt practices or illegal practices committed by persons in an election to the Registrar or designated person.

Section 92 of the Act states:

An election officer who wilfully fails to perform the functions of that office under this Act commits an offence and is liable, upon conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a term not exceeding two years, or to both.

While Section 108 states:

63 (6) Where it appears to the High Court or a Tribunal upon the trial of an election Petition that any corrupt practice or illegal practice has been committed by any person in connection with the election to which the election Petition relates, the High Court or Tribunal shall, at the conclusion of the proceedings, prepare a report stating a) the evidence given in the proceedings in respect of the corrupt practice or illegal practice; b) the names and particulars of any person by whom the corrupt practice or illegal practice was, in the opinion of the High Court or a Tribunal, committed; (7) The Registrar or designated person shall deliver a copy of every report prepared by the High Court or a Tribunal under subsection (6) to– a) the Commission; and b) the Director of Public Prosecutions.

(8) The Commission shall, as soon as it receives the report under subsection (7), recommend the prosecution of the person stated in the report by the Director of Public Prosecutions.

It is very rare that adjudicating bodies take the mandate to report illegal practices or corrupt practices and criminal activities seriously. It is incumbent upon a competent Tribunal to prepare a report as required by law, the Registrar or designated persons to deliver copies to the Electoral Commission and the Director of Public Prosecutions (DPP) and a proactive ECZ to recommend prosecution. Any dereliction of duty that breaks the chain contributes to lack of redress and appropriate action.

5.8 Conclusion

In this chapter, the high number of 58 Election Petitions filed before various Local Government Tribunals alleging illegal practices or corrupt practices, electoral violence, and blatant violation of the EPA and Electoral Code of Conduct was noted. Despite the ECZ having been given the power not only to enforce the Code of Conduct but also to penalise erring candidates by disqualifying them from the race, the ECZ hardly invoked its powers as contained in Section 110(2) of the Act. As a result, aggrieved parties had to Petition election results in accordance with the law. This could also point to the failure of other administrative electoral dispute mechanisms such as the CMCs.

64 Inasmuch as the Tribunals would make findings of fact that elections could have been marred by violence, illegal and corrupt practices, the hands of these adjudicating bodies remain tied by the provisions of Section 97 (2) of the EPA, which require not only proof that these vices were committed but also a linkage that the main parties, i.e. Respondents and their recognised agents, had knowledge or approved the commission or omission of the said acts. The Tribunals have also been put in a precarious situation of determining, by the evidence of a few witnesses, whether the net effect of illegal acts, corrupt practices, violence or the breach of Code could be said to have prevented the majority of voters from voting for their preferred candidate.

The EPA has set limitations that make it difficult for any Tribunal or Court to easily nullify an election, as it is now a requirement of Section 97(2) of the EPA that the petitioner must prove as alleged, and be able to show that the alleged breached was committed by or with the knowledge of the candidate or his agent. Upon such proof, the Court or Tribunal ought to satisfy itself that the alleged breach of the electoral law prevented the majority of people who voted from voting for a candidate of their choice. Interviews conducted with some of the candidates who opted to withdraw their petitions found that these petitioners recognised the difficulty in the burden placed on them to prove that either the candidate or official agents were directly involved in the breaches or had knowledge. This led to the conclusion that some petitioners who opted to withdraw their petitions viewed the Petition process to be merely academic, while in some of the Petitions that went to trial and were dismissed the petitioners could prove only one claim against the required three-tier system.

65 Chapter 6

Conclusion and Recommendations

6.1 Introduction

It is clear from this report that losing candidates and citizens in general have had the right to Petition the outcome of elections and to enjoy the right to be heard by a competent Court or Tribunal within the time provided by the law. It is also clear that Courts have frowned upon candidates who secure an electoral victory using illegal, corrupt means and methods that undermine the integrity of the electoral process. From the Report, laws, cases and judgments from the 2016 Election Petitions cited, it has also been shown that Courts would not nullify elections on mere suspicions of irregularities or flaws that may be associated with electoral systems, except when it is demonstrated that such flaws have a direct bearing on the people’s popular choice of the candidate. Suffice it to say that Parliamentary Elections have a longer history of Petitions in Zambia (dating as far back as the 1960s), whereas Presidential Elections saw the first Petition only following the 1996 elections. This could be attributed to the fact that Zambia was for a long time under a “one-party participatory democracy”.

In terms of the legal framework of the election petitions in Zambia, it has been demonstrated that there is complexity in the procedures as well as the evolution of the law. So while the Constitution of Zambia provides for the legal framework that strictly requires that elections are free from violence and intimidation, and that there is a high level of accountability, efficiency and transparency, the EPA of 2016 has demonstrably introduced further provisions that have set very high standards for adjudicating bodies when determining election petitions on when to nullify or not to nullify election results.

In an environment where proof is available that elections were marred by violence, corrupt and illegal practices, the hands of the Courts and Tribunals are tied if Petitioners fail to prove that such acts were conducted by or with the full knowledge

66 of the candidate or agent. This provision of the electoral law could be deemed retrogressive and inconsistent with the spirit of the Constitution, which generally demands that elections must broadly be fair and free from violence, corruption and intimidation, irrespective of who conducts such prohibited acts.

The other difficulty in electoral Petitions also arises in determining when the Court would say the proven allegations could be said to have influenced or prevented the majority of voters in a constituency, district or ward from electing the candidate in that constituency, district or ward whom they preferred.

In the general elections held on 11 August 2016, the results of the Presidential Elections won by Mr Edgar Chagwa Lungu of the PF were contested in the Constitutional Court by a Petition filed by the UPND on 19 August 2016. This Petition was disposed of on a technicality based on Article 101 and 103 of the Constitution, which sets the time limit for hearing a Presidential Election Petition at 14 days.

At the Parliamentary Elections level, an unprecedented 86 Petitions were filed in the High Court by losing candidates. An analysis of the Judgments delivered by the Courts has shown that the High Court Judges were on firm grounds in their findings when arriving at the decisions in the different Election Petitions presented to them. There is no doubt that the Judges of the High Court have appreciated the changes introduced by the EPA No. 35 of 2016 and have given effect to the provisions therein. Suffice it to mention that not all Judgments could be analysed at the time of preparing this Report, as 37 appeals had been lodged in the Constitutional Court and most of them had not yet been determined.

58 Petitions were lodged following the Local Government Elections in 2016. The Tribunals made some findings of fact that elections could have been marred by violence and illegal and corrupt practices. However, the hands of these adjudicating bodies remained tied by the provisions of the Act, which require not only proof that these vices were committed but also a linkage that the main parties, i.e. Respondents and their recognised agents, had knowledge or approved the commission or omission of the said acts. A total of 12 appeals from the decisions of Tribunals were lodged in the Constitutional Court. The high number of Election Petitions at both the Parliamentary and Local Government levels may point to the failure of settling electoral disputes amicably using the CMCs.

67 6.2 Recommendations

Following the issues analysed in this report in Chapters 2 to 5, the report concludes with the following recommendations for electoral stakeholders:

6.2.1 The Legal Framework (Chapter 2) 1. Government and stakeholders must seek to complete the enactment of electoral laws at least two years before an election to avoid creating confusion and to allow for sufficient time for education and comprehension of the laws.

2. Ensure that the various provisions of the Constitution are coherent and clear. Conduct a detailed review of the electoral legal framework and, with engagement and consent of the people through agreed processes among stakeholders, re-draft unclear, ambiguous and conflicting provisions in order to ensure consistency and increase legal certainty.

3. Amend the Constitution by prescribing the exact period of time within which the Constitutional Court has to determine a presidential Petition and appeals arising from electoral Petitions. The current provision only talks about hearing a petition and not determining.

4. As some Parliamentary petitions may be concluded by the decision of the High Court level without being appealed against to the Constitutional Court, we recommend an amendment to the Constitution to also empower the High Court to bar candidates who are found wanting after an election Petition has been disposed of from contesting in any elections within the tenure of that Parliament. Currently, only LGETs and the Constitutional Court have been given such powers which are meant to deter political players from engaging in conduct prohibited by the electoral law.

5. The right to effective remedy should be enhanced by clarification of the rules and procedures for complaints, for local, Parliamentary and presidential elections. The rules on which Courts have jurisdiction should be unambiguous and consistent with the spirit of the Constitution.

6.2.2 Presidential Election Petitions (Chapter 3) 6. Make amendments to the Constitution with a view to possibly increasing the number of days from 14 days to 90 days within which a presidential Petition must be heard and determined. A Presidential Petition requires the gathering, presentation and analysis of evidence, examination of witnesses, hearing and

68 disposal of interlocutory matters, if any, and sufficient time for the Court to prepare its judgment.

7. The period for filing a presidential Petition ought to be increased from seven days to 14 days to allow Petitioners gather the necessary evidence and witnesses from around the country and provide sufficient time for Advocates to prepare the Petition. This will also help reduce on parties making applications or motions for interlocutory or preliminary issues at the expense of hearing the main matter.

8. Make amendments to the Constitution with a view to have the President-elect sworn in within seven days after the end of the proposed 90 days but allow for the incumbent President to continue to perform full executive functions of running government during this transitional period whether there is a Petition or not.

9. Remove or clarify the ambiguity of Articles 101 and 103 on which provision can be invoked either in the first or second round (re-run) of voting.

6.2.3 Parliamentary Election Petitions (Chapter 4) 10. Strictly look at Section 97 and other provisions of the EPA with the possibility of amending it to ensure that the raised bar in having an election nullified if there are irregularities is reduced and within the spirit of Article 45 of the Constitution.

6.2.4 Local Government Elections Petitions (Chapter 5) 11. Amend the EPA so it is re-aligned to affirm the spirit of the Constitution in promoting free and fair elections that are devoid of violence and corrupt or illegal practices. As demonstrated in this report, the mere finding of some incidences of violence, corrupt or illegal practices would not move the Court to nullify an election in the absence of proof that the candidate or his/her agent were involved and that, resulting from this action, the majority voters were prevented from voting for candidates of their choice. This three-tier system provides a comfort zone for those who engage in conduct prohibited by the electoral law provided they are not directly involved and the other party fails to prove that majority voters have been influenced by prohibited acts.

69 12. Provide clear guidelines on the appointment of members of the Tribunals.

13. Shift from ad hoc Tribunals to the establishment of permanent Tribunals that shall constantly contribute towards predictable outcomes in the enforcement of electoral laws and determining matters associated with the conduct and accountability of councillors49 and other local government matters. Whereas the Constitution provides for accountability of judicial officers such as Judges,50 it clearly also provides for a fora where citizens can exercise such a constitutional right to hold Judges accountable i.e. the Judicial Service Commission.51 The form, manner and fora where councillors can be held accountable is not similarly provided and permanent Tribunals would serve as a good fora.

14. Tribunals must not only note the existence of fraud or criminal behaviour but should also discharge their responsibility in preparing reports necessary for the prosecution of offenders as per the provisions of the law.

6.2.5 ECZ 15. The ECZ must work to build the competencies for Conflict Management Committees (CMCs) whose procedures should be defined in detail and ensure that they do not overlap with those of Police and the Courts.

16.The Commission must seek to use its new powers provided in the EPA such as disqualification of candidates found in breach of electoral laws and also utilise the window period of seven days after the declaration of the results provided in Section 76 to correct mistakes committed by electoral officers in the tabulation of results rather than wait for Courts and Tribunals to do so.

Finally, a general overall recommendation is that a gap-analysis be done of the Constitution of Zambia, the EPA, Constitutional Court Act and its Rules and LGET Rules, taking into consideration lessons learnt from rulings and judgments from the Courts. It is worth noting that the Constitution of Zambia was enacted without being subjected to the validation process as was provided by the Technical Committee that drafted the Constitution.

49 Supra Note 1, Article 156 50 Ibid, Article 118 51 Ibid, Article 236(2)(b)

70 Annexes on Local Government Petitions

Annex 1: Elections Upheld and Petitions Dismissed

NO. TYPE OF CONSTITUENCY/ PETITIONER(S) RESPONDENT(S) OUTCOME ELECTION WARD

1. Mayoral Ndola District Daphne Pauline Amon Chisenga Dismissed, Ap­ Soko Chabu (PF) & ECZ pealed to Con (UPND) Court 2. Councillor Ndeke Ward, Davies Kasengele Lungu Aaron (PF), Dismissed Kamfinsa (UPND) ECZ & AG

3. Mayoral Chongwe District Kebby Geoffrey Dismissed Kashinamilunda Chumbwe & ECZ 4. Chairperson Mushindamo District Peter Kapamba ECZ & Luckson Dismissed (PF) Mulumbi 5. Councillor Mbunda Ward, Peter Mwakamui Simona Lufwendo Dismissed Shangombo District (PF) (UPND) 6. Councillor Keyana Ward, Shan­ Sikota Kandela Mubika Nganga Dismissed gombo District (PF) (UPND)

7. Mayoral Shangombo District Munyamba Mayeya Mayeya Dismissed Likando (PF) (UPND) 8. Councillor Kaungamashi Ward, Mabumbulwa Katoma Katoma Dismissed Shangombo District Godfrey (PF) (UPND) 9. Councillor Liwandumo Ward, Sitali Sililo (PF) Mukelenge Mushe Dismissed Sioma District (UPND) 10. Councillor Mambolomoka Sitali Musipili Malundu Malundu Dismissed Ward 11. Councillor Sipuma Ward, Shan­ Like Sililo (PF) Sikota Clinton Dismissed gombo District (UPND) 12. Councillor Sioma District, Mebelo Muyunda Chibinda Mwangala Dismissed Sioma Ward (PF) (UPND) 13. Chairperson Luampa Chairper­ Chilemu Chinyem­ Victor Maliti Dismissed son ba (PF) Chibiya 14. Councillor Sikabenga Ward, Nyambe Kubongana Kubon­ Dismissed Sioma District Mulimukwa (PF) gana (UPND) 15. Councillor Nangweshi Ward, Wamunyima Sililo Muuka E. Dismissed based Sioma District Nosiku (PF) (UPND) on procedure 16. Councillor Mbume Ward, Sioma Mambo Maunga Siyanga Mukela Dismissed based District (PF) (UPND) on procedure 17. Councillor Chakaloma Ward, Patrick Maxwell Mulenga Dismissed for Kalulushi Hamunjembwa (PF) & ECZ want of (UPND) prosecution 18. Mayoral Kalulushi District Daudi Simama Rashida Mulenga, Dismissed for ECZ & AG want of prosecution

71 19. Councillor Chembe Ward, Joseph Kabwami Geofrey Kanda, Dismissed for want Kalulushi ECZ & AG of prosecution 20. Councillor Chisupa Ward, Pethias Shiku Clement Njovu Dismissed for want Kalulushi (UPND) (PF), ECZ and AG of prosecution 21. Councillor Lukoshi Ward, Sikayumbu Maureen Mwape Dismissed for want Kalulushi Nasinda Nsokolo, ECZ & of prosecution AG 22. Councillor Mwanambuyu Ward, Cyprian Mubita Enock Ngunga Dismissed for want Senanga District (PF) Kandanda (UPND) of prosecution 23. Chairperson Sioma District Imbula Kanyanda Edmond Mambula Dismissed Sinyinda (PF) (UPND) 24. Mayoral Limulunga District Innocent Mubyana Mushiba Kaumba Dismissed Nalishebo (PF) (UPND) 25. Mayoral Mutete District Morgan Kambeu Mikosa Patrick Dismissed Chipango (PF) Chilufya (UPND) 26. Chairperson Kaoma District Chingumbe Janet Bindundu Muti Dismissed Sombo (PF) (UPND) 27. Councillor Mulenga Mafunda John Vwalika (Inde­ Geoffrey Munkon­ Dismissed but Bemba Ward pendent) dya (UPND) judgment record incomplete 28. Councillor Nakatindi Ward, Musopelo Cephas Evans Muhambi Dismissed for want Chongwe (PF) (UPND) and ECZ of prosecution

29. Councillor Madido Ward , Rachel Simenda Matthews Ngosa Dismissed Chongwe (UPND) (PF), ECZ 30. Councillor Mpancha Ward, Patrick Choolwe Elias Chitonge (PF) Dismissed Chilubi (Independent) & ECZ 31. Councillor Kanchindi Ward, Gibson Malama Febian Chilekwa Dismissed Chilubi (UPND) (PF) & ECZ 32. Mayoral Limulunga District Nasilele Mukwita Imangalibako Dismissed (UPND) 33. Chairperson Lukulu District Yadisha Kayama Kashimba Muyam­ Dismissed Chairperson (PF) bango (UPND) 34. Chairperson Nalolo District Mulumba Mu­ Aggrey Sikananu Dismissed Chairperson letetwi (PF) (UPND) 35. Mayoral Limulunga District Nasilele Mukwita Imangalibako Dismissed (UPND)

72 Annex 2: Elections Nullified and Claim Upheld

NO. TYPE OF CONSTITUENCY/ PETITIONER(S) RESPONDENT(S) OUTCOME ELECTION WARD

1. Councillor Nyembe Ward, Penelope Carve­ ECZ & Hlazo Petition successful Chilanga shame Mwenda Sipho(UPND) (PF) 2. Councillor Lulamba Ward, Temani Leslie Samuel Lupito, ECZ Petition successful Chingola Banda (UPND) & AG 3. Councillor Kafue Ward, Lu­ Sephrine Chisha Luke Sikalangwe Petition successful, anshya (PF) (Independent) and Appeal to Consti­ ECZ tutional Court 4. Councillor State Ranch Ward, Kawina Musipili Mushilwa Muyatwa Petition successful Shangombo District (PF) (UPND)

5. Mayoral Shangombo District Mukelabai Pele­ Mubika Inonge Petition successful kelo (PF) (UPND)

6. Chairperson Shangombo Chair­ Shomeno Domi­ Mwiya Matapwe Petition Successful person nic (PF) (UPND) 7. Chairperson Itezhitezhi District Bilton Manje (PF) Liyako Gift Chi­ Petition successful lombo (UPND)

8. Mayoral Masaiti District Patrick Zulu(PF) Edward Musamba Petition successful (UPND) & ECZ Appeal to Constitu­ tional Court 9. Chairperson Mongu Central Francis Zaza Kasiyo Akayomkwa Petition successful Chairperson Simenda (PF) (UPND)

10. Councillor Singongo Mambo­ Namuchana Sitali Masiliso Petition successful lomoka Sepiso (PF) (UPND) 11. Mayoral Shangombo District Mukelabai Pele­ Mubika Inonge Petition successful kelo (PF) (UPND) 12. Mayoral Mwandi District Sipalo Josephine Mufiti Gilnard Petition successful Mulima

73 Annex 3: Petitions Withdrawn or Abandoned

NO. TYPE OF CONSTITUENCY/ PETITIONER(S) RESPONDENT(S) OUTCOME ELECTION WARD

1. Councillor Mukulungwe Ward Kaweme Lombe Agness D. Kangwa Withdrawn (Rainbow) & (PF) Chama Francis (Independent)

2. Councillor Kafubu Ward, Ndola James Banda Frances Kazembe Withdrawn (Independent) Chisenga (PF) & ECZ

3. Councillor Lubuto Ward, Ndola Simplice A Cecil Malambo (In­ Withdrawn Mambwe (PF) dependent) & ECZ

4. Mayoral Limulunga District Sindanyambe Alibandila Mwi­ Withdrawn Milimo (PF) tumwa (UPND)

5. Mayoral Limulunga District Matakala Allan Joe Namakando Withdrawn Mataka (PF) Masiye (UPND)

6. Councillor Limulunga Ward, Limu­ Maswe Mutakela Sachalwa Sachalwa Withdrawn lunga District (PF) (UPND)

7. Councillor Chongwe Ward, Chon­ Fred Shankoti Juvenelius Malimbika Withdrawn gwe (UPND) (PF) & ECZ

8. Councillor Palabana Ward, Chon­ Dickson Shamba Davies Chilufya (PF) Withdrawn gwe (UPND) & ECZ

9. Councillor Miyonga Ward, Kaputa James K. Katai Jason B. Chipili (PF) Abandoned (UPND) & ECZ

10. Councillor Kanakantapa Ward, Abrason Phiri Hilda Manjolo & Withdrawn Chongwe ECZ

11. Councillor Chinyanja Ward, Kabwe Gabriel Bwalya ECZ & AG Abandoned Chikalipa (PF)

74 Annex 4: Appeals to the Constitutional Court

NO. Case Parties Date Provisions in Status of Number Question Appeal

1. 2016/CC/0009 Noel Siamondo, 29/04/16 Interpretation and RULING Kelly Kapianga, Young enforcement of Articles delivered, African Leaders 2, 60 (1)(b), 153, 156, Matter Dismissed Initiative Ltd 157, 266 of the Con- v. stitution of Zambia Electoral Commis- (Amendment) Act No. sion of Zambia & 2 of 2016 Attorney General 2. 2016/CC/A003 Edward Musamba 06/10/16 Interpretation of Sec- The Appellant v. tions 96, 97, 98 and 99 DISCONTINUED (L/GET) Patrick Zulu & of the Electoral Process the matter. ECZ Act No. 35 of 2016 (NOTICE AND RECORD OF APPEAL FILED) 3. 2016/CC/A004 Gift Luyako Chi- 10/10/16 Interpretation of Sec- ACTIVE lombo tion 83, 89 (1) (e) of (Pending) (L/GET) v. the Electoral Process Biton Manje Act No. 35 of 2016. (NOTICE AND RECORD OF APPEAL FILED)

4. 2016/CC/A005 Morgan Kambeu 12/10/16 Interpretation of ACTIVE Chipago Section 96 (1) of the (Pending) (L/GET) v. Electoral Process Act Mikosa Patrick No. 35 OF 2016. Chibiya (ONLY A NOTICE OF APPEAL FILED) 5. 2016/CC/A006 Chilemu Chinyemba 12/10/16 Interpretation of ACTIVE v. Section 96 (1) the (Pending) (L/GET) Victor Maliti Electoral Process Act Chibiya No. 35 of 2016. (ONLY A NOTICE OF APPEAL FILED) 6. 2016/CC/A007 Chingumbe Janet 12/10/16 Interpretation of ACTIVE Sombo Section 96 (1) the (Pending) (L/GET) v. Electoral Process Act Bindudu Muti No. 35 of 2016. (ONLY A NOTICE OF APPEAL FILED) 7. 2016/CC/A008 Mwiya Mutapwe 12/10/16 Interpretation of Sec- ACTIVE v. tions 81, 82, 83, 84, 85, (Pending) (L/GET) Shomeno Dominic 87, 89, 92, 94, 97, 98, 99, 100 and 110 of the Electoral Process Act No. 35 of 2016 (NOTICE AND RECORD OF APPEAL FILED)

75 8. 2016/CC/A009 Inonge Mubika 12/10/16 Interpretation of ACTIVE v. Articles 46, 54 and 73 (Pending) (L/GET) Mukelabai Pelekelo of the Constitution of Zambia Chapter 1 of the Laws of Zambia. (NOTICE AND RECORD OF APPEAL FILED) 9. 2016/CC/A010 Mushilwa Muyatwa 12/10/16 Interpretation of Sec- ACTIVE v. tions 81, 82, 83, 84, 85, (Pending) Kawina Musipili 87, 89, 92, 94, 97, 98, (L/GET) 99, 100 and 110 of the Electoral Process Act No. 35 of 2016 (NOTICE AND RECORD OF APPEAL FILED) 10. 2016/CC/A011 Sitali Sitali 13/10/16 Interpretation of Sec- ACTIVE v. tions 81, 83 and 97 of (Pending) (L/GET) Namuchana Sepiso the Electoral Process Act No. 35 of 2016 (NOTICE AND RECORD OF APPEAL FILED) 11. 2016/CC/A012 Sikalangwe Luke 17/10/16 Interpretation of Sec- RULING delivered, v. tion 3 (d) (q), Section 4 Matter Dismissed Chisha Sephirine & (1), Section 43, Section (L/GET) ECZ 68 (1) (d), Section 83 (1) (d), Section 97 1,2 (a) (i) (ii) (b) 97(4) Schedule Section 107 4(1) (b) (c), 10 (5) (f) of the Electoral Process Act No. 35 of 2016. (NOTICE AND RECORD OF APPEAL FILED) 12. 2016/CC/A026 Imbula Kunyanda 5/12/16 Interpretation of Sec- ACTIVE Sinyinda tion 96(1) the Electoral (Pending) (L/GET) v. Process Act No. 35 of Edmond Mumbula 2016. (SUMMONS FOR LEAVE TO FILE A NOTICE OF APPEAL FILED)

76