Having reviewed the evidence, it is necessary to conclude. Admittedly, there are some witnesses whose evidence we have not specifically alluded to and which we considered to be unhelpful to the issues before us. Persons like PW70 Mr. Jerade Sekeleti, PW71 Mr. Kayanda and PW72 Mr. Jackson Sekeleti who complained that the MMD candidate Mr. Nkausu visited their polling stations and greeted some people did not make any useful contribution to this case. Neither did PW43 Mr. Tiyaonse Kabwe who - having read the evidence of PWI2 in the Post newspaper - wished to comment on it and to dispute his assertions. There were a number of witnesses from the media who produced various newspaper articles which did not advance the case in any useful fashion. There were other witnesses not specifically mentioned - such as PW37 a polling agent for PW82 - because the point they covered has been adequately dealt with by reference to the evidence of other witnesses. We should also mention that, from the evidence of the petitioners PWI, Mr Zulu, PW2 Mr. Lewanika, PW8 Mr. Kambaila and PWI6 Mr. Mung’omba, the petitioners had a number of grievances which are largely if not purely of a political nature. The resolution of such political issues would have more naturally sounded in another forum than in a courtroom where the parties have vented their feelings in default of meaningful dialogue among our politicians. Thus, they complained of the manipulation of the constitution by the amendments of 1996 which appeared to them to have been selectively and advisedly targeted. One of the them, Mr. Kambaila, even went so far as to call upon their Lordships to declare the 1996 amendments requiring the parents of a candidate to be citizens as null and void. Such call, of course, went beyond the ambit of an election petition which was not constituted for such a purpose. Some of the petitioners raised concerns about the need for a mutually agreed independent Electoral Commission to manage the elections; concerns about the use of the public media and the limited access to it by the opposition; and concerns about the Public Order Act. There were complaints concerning the use - or perhaps more accurately the misuse - of public or government resources, concerns some of which the Electoral Commission endeavoured to address when it set out a code of conduct (by Statutory instrument 179 of 1996) apparently more honoured in breach than in observance. It seems to us that resolution of political issues in the political arena is to be preferred to litigation. For example, some measures which may be considered offensive, provocative, unjust or unfair in the political arena so as not to be universally acceptable may yet strictly speaking be legal as a matter of strict law. It seems to us that in such event where the court may be unable to pronounce upon their validity based on their possible illegality or unconstitutionality, the politicians owe it to the citizens - (who are undoubtedly entitled to peace and the quiet enjoyment of life) - to resolve the political issues and to underight the political well-being of the nation. This we find to be the challenge facing our politicians on some of the grievances brought to our attention by the petitioners. It is certainly not part of the remit of any court (to borrow from the language in the Akar case) to start debating the wisdom or desirability.or fairness of some of the measures if a legal or constitutional challenge is unavailable. We are also aware that there were allegations made in the petition which have either not been supported by any evidence or not been proven. Examples of this include the allegation that at the poll, the polling stations and rooms where people cast their votes had intimidating presence of heavily armed soldiers and policemen there through bullying voters into voting for the respondent and his party in government as the particulars of the voters were also endorsed on their ballot papers thereby ensuring that the vote was not secret, and a voters choice could be traced. There was not an iota of evidence tendered; not a single witness, of the many who testified to events at a polling station, said there were the alleged heavily armed solders at all or any police officers bullying any one. Not one person said particulars were written on the ballot papers unless the reference was to the voters serial number which is written on the ballot counterfoil; a practice which has always been there in Zambia. There was also an allegation that double-voting was facilitated by the provision of substandard ink that could be washed off and by the failure to put measures in place to detect and stop the use of invisible rubber hand gloves which allegedly allowed many people with more than one voters cards to vote as many times as they had cards. While there was some evidence of double voting by the dishonest like Zgyambo and Miss Kalo who washed off the ink, no one came to talk about invisible rubber gloves. We have already dealt with the case of the voter who had two voters cards because of coding errors and we have already found as a fact that such voters could not vote twice, even if they tried to do so, because their names only appeared once in the final registers in respect of the corrected polling district. There was yet another allegation that the Electoral Commission created new polling stations which were secretly used. No evidence was led to support this claim. There was an allegation that persons who had died prior to the election somehow voted in the election using MMD cadres who were supplied with the requisite documents. This allegation may have been intended to be proved by the witnesses from Chongwe who claimed to have been given false identities and to have been driven to Ngwerere to vote in those other names. We have already discussed this evidence which was not believable, as already found. When all is said and done, we accept that there was on the whole reasonable cause for complaint and for bringing this petition which it was in the public interest to ventilate in court. Some of the grievances and issues taken up were certainly well- taken while obviously some could not have been pursued had the complainants been possessed of the full facts or explanations which emerged during the trial. For reasons we have given, we decline to determine and declare that the provisions of Article 34(3) (a), (b) and (e) of the constitution have not been satisfied in respect of the respondent. We find that he was qualified to contest the election. It follows also that we do not find that he falsely swore as to the citizenship of his parents. We were asked to declare that the election process was not free and fair and that the election was rigged and therefore null and void; The election process had flaws and irregularities, as we have already pointed out. The bottom line, however, was whether, given the national character of the exercise where all the voters in the country formed a single electoral college, it can be said that die proven defects were such that the majority of the 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 the voters. We are satisfied, on the evidence before us, that 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. The petition is unsuccessful and it is dismissed. However, it is clearly in the interests of the proper functioning of our democracy that challenges, to the election of a president which are permitted by the constitution and which are not frivolous should not be inhibited by unwarranted condemnation in costs. In the event, it is only fair that each of the parties should bear their own costs. Petition Dismissed
Posted on: Thu, 20 Nov 2014 17:18:15 +0000
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