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The Appellant and 1st Respondent were contestants in the 11 August 2016 election for Member of Parliament for Senga Hill Constituency. The Appellant contested the seat on the United Party for National Development (UPND) ticket while the 1st Respondent was a candidate on the Patriotic Front (PF) Ticket. The 1st Respondent emerged victorious with 9 410 votes while the Appellant polled 8 345 votes. Aggrieved by the results of the election, the Appellant petitioned the High Court with a view to have the election of the 1st Respondent declared null and void on grounds that the elections were held in an atmosphere which was not free and fair due to widespread malpractices and corrupt practices by the 1st Respondent. Allegations against the 2nd Respondent were that it failed to provide the GEN 12 Form as per Electoral Commission of Zambia (ECZ) Regulations in all 56 polling streams in Senga Hill Constituency.
The High Court found that the allegations against the Respondents were not established to the required standard of proof. It dismissed the petition and declared that the 1st Respondent was duly elected as Member of Parliament for Senga Hill Constituency. The Appellant appealed.
1. There is a clear nexus between subsection (2) (a) and subsection (3) of section 97 of the Electoral Process Actª. For subsection (3) to be triggered the requirements of subsection (2) (a) must be fulfilled. If a candidate’s election falls afoul of subsection 2 (a) of section 97 of the Electoral Process Act, following a trial in the High court or tribunal but the candidate successfully invokes the defences available in subsection (3), then his election will not be nullified. Thus the operation of subsection (3) is contingent upon the petitioner meeting the threshold in subsection 2(a). It does not create a stand-alone ground upon which an election can be annulled. If it were so, the legislators of the law would have made it expressly clear. Brelsford James Gondwe v Catherine Namugala Appeal No 175 of 2012 followed.
2. The key ingredients of section 97 (2) (b) are that there must be non compliance with the provisions of the Act relating to the conduct of an election and it must appear to the court or tribunal that the electoral principles as laid down by the law have not been adhered to; and the non-compliance must affect the result of the election. It is unequivocal that section 97(2) (b) relates to non-compliance with the provisions of the law in the “conduct of elections”. It calls for the annulment of elections in the event that there has been non compliance with the principles laid down in the Electoral Process Act in as far as the conduct of elections is concerned. Section 97 (2) (b) therefore concerns non compliance to the provisions of the Act by the Electoral Commission of Zambia, the body charged with the conduct of elections under Article 229(2)(b) of the Constitution, and not the candidates to an election or their agents.
3. The nexus between subsection 2(b) and (4) of section 97 relates to performance of the statutory and constitutional functions of the ECZ relating to the conduct of elections through its officers. Where there is a breach of this statutory duty and such breach substantially affects the results of an election, the election can be declared a nullity pursuant to section 97 (2)(b). This is one of the instances the learned trial Judge identified in section 97(2) of the Electoral Process Act.
4. An election can be annulled on the strength of one incident of corrupt or illegal practice or misconduct provided that, under section 97 (2) (a), such is attributable to the candidate or his duly appointed agent or with their knowledge and consent or approval and the majority of the electorate were or may have been prevented from electing a candidate they preferred; or if it is an allegation pursuant to section 97(2)(b) on non compliance, cogent evidence must be proferred to show that the results were affected. That is the new threshold.
5. The Court after trial of election petitions must be categorical on the finding on allegations; whether or not they have been proved in respect of both limbs as regards the candidate or agent or were done with their knowledge and consent or approval and on the majority of the electorate being affected. The onus on the Appellant, as Petitioner in the Court below was to establish with convincing clarity that the 1st Respondent was responsible, directly or indirectly, for the corrupt or illegal acts, and that as a result, the majority of the electorate were or may have been prevented from voting for a candidate they preferred. This standard of proof was not satisfied. Mubita Mwangala v Inonge Mutukwa Wina Appeal No 80 of 2007 followed.
ªSection 97 (2) and (3) of the Electoral Process Act No 35 of 2016 provide as follows:
97 (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 (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.
IN THE HIGH COURT FOR ZAMBIA 2011/HP/EP/23
AT THE PRINCIPAL REGISTRY