Yambayamba v Simbao and Electoral Commission of Zambia (2011/HP/EP/23) [2012] ZMHC 85 (19 March 2013);

Group

Headnote and flynote

Flynote:

Elections – Electoral Process Act No 35 of 2016 – Candidate’s election found to be in breach of subsection (2) (a) of section 97 – Whether such candidate may avail himself of the defences in subsection 3 of section 97 to avoid nullification of election
Elections – Electoral Process Act No 35 of 2016 – Whether non compliance under section 97 (2) (b) must be that of Electoral Commission of Zambia or that of a candidate in elections or his agent
Elections – Electoral Process Act No 35 of 2016 – Parameters of non compliance under section 97 (2) (b) that would warrant nullification of election
Elections – Electoral Process Act No 35 of 2016 – Threshold set by section 97 (2) for nullification of election
Elections – Evidence – Standard of proof required to be met by Petitioner

Headnote and Holding:

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.

Held

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.
Appeal dismissed.
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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.
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Full judgment

IN THE HIGH COURT FOR ZAMBIA 2011/HP/EP/23

AT THE PRINCIPAL REGISTRY

AT LUSAKA

(Civil Jurisdiction)

IN THE MATTER OF : ARTICLE 72 (1) OF THE CONSTITUTION OF

THE REPUBLIC OF ZAMBIA

AND

IN THE MATTER OF : SECTIONS 79 AND 81 TO 86 AND 95 OF THE

ELECTORAL ACT NO 12 OF 2006

AND

IN THE MATTER OF : THE ELECTORAL CODE OF CONDUCT S.I NO.

52 OF 2011

AND

IN THE MATTER OF : SENGA HILL CONSTITUENCY

PARLIAMENTARY ELECTION HELD IN ZAMBIA ON THE 20^TH DAY OF SEPTEMBER, 2011

IN THE MATTER OF : THE PETITION FOR SENGA HILL

CONSTITUENCY IN THE NORTHERN PROVINCE OF THE REPUBLIC OF ZAMBIA HELD ON 20^TH SEPTEMBER, 2011

AND

IN THE MATTER OF : THE ELECTORAL PETITION RULES NO. 426

OF 1968

BETWEEN:

GILES CHOMBA YAMBAYAMBA PETITIONER

AND

KAPEMBWA SIMBAO 1^ST RESPONDENT

ELECTORAL COMMISSION OF ZAMBIA 2^ND RESPONDENT

Before the Hon. Madam Justice F. M. Chisanga.

For the Petitioner: A. Mwansa of A.M.C. Legal Practitioners

For the 1^st Respondent: C. K. Phiri and K.M. Simbao of Mulungushi Chambers

For the 2^nd Respondent: C. Nhari of Nhari Mushemi & Associates

JUDGMENT

Cases referred to:

1. Michael Mabenga & Sikota Wina & Others 2003 Z.R. 110.

2. Webster Chipili & David Nyirenda Appeal No. 35 of 2003

3. Mlewa Vs Wightman 1995 Z.R. 171.

4. Lewanika and Others Vs Chiluba 1998 Z.R. 79.

Other works referred to:

1. Halsbury’s Law of England 4^th Edition, vol 15.

The Petitioner was a candidate in the parliamentary elections held on 20^th September, 2011, having contested for the Senga Hill Constituency. The 1^st Respondent was declared duly elected member of parliament for Senga Hill Constituency by the Returning Officer after the said election.

The petition alleges that the elections were characterized by widespread undue influence, bribery, intimidation, voter treating and electoral malpractices by the 1^st Respondent and or his agents contrary to sections 79, 82 to 86 and 93 to 95 of the electoral Act number 12 of 2006 and the electoral code of conduct number 52 of 2011. The alleged malpractices are that the 1^st Respondent made false statements and displayed an awful picture depicting the PF President Michael Chilufy Sata as a person unworthy to rule Zambia and that the PF and its candidates were Satanists. Further that the PF President and PF male candidates were pro homosexual. False statements were made that the PF government would do away with fertilizer subsidies, fail to pay for maize already collected by FRA and stop purchasing maize from the farmers.

It has been further alleged that the 1^st Respondent and his agents used to his advantage government institutions and department, namely the office of the District Agriculture Coordinator, the District Education Board Secretary as well as the Citizen Economic Empowerment Commission to hold meetings with women and youth clubs where they were promised free fertilizer and other farm inputs.

It has further been alleged that the 1^st Respondent by himself or his agents influenced the CEEC to fund selected women and youth clubs in the constituency as an inducement for members of those clubs to vote for the 1^st Respondent and the MMD.

The Petition goes on to allege that the 1^st Respondent distributed foodstuff, bicycles and cash to the electorates as an inducement to vote for him. The 1^st Respondent is alleged to have slaughtered cows at each of the polling station and distributed to voters to unduly influence and induce them to vote for him and the MMD.

It is further alleged that the 1^st Respondent at Chomba Polling Station stated that the people of Senga Hill would regret voting for him as he was dismissed from National Assembly as Motel Manager on grounds of theft of money. Further that the 1^st Respondent took details of voter’s cards and intimidated the voters that it would be known if they did not vote for the 1^st Respondent and MMD and they would not receive fertilizer packs.

It has further been alleged that the 1^st Respondent or his agents used acts of violence to intimidate those that were anti MMD. At Nondo Polling Station of Mwiluzi Ward, the 1^st Respondent and the MMD Presidential Candidate induced the voters by promising them that the Mbala Nakonde road would be tarred.

It has further been alleged that voters at Nasayanga and Mikongolo Polling Stations were threatened with legal action concerning mealie meal, salt cooking oil, beans and money if they did not vote for the 1^st Respondent. A threat was issued that pockets of cement and iron sheet that had been delivered at Nasayanga School would be withdrawn.

As a result of the foregoing, the Petitioner has prayed for,

i. A declaration that the election of the 1^st Respondent as a member of the National Assembly for Senga Hill constituency was null and void

ii. A declaration that the 1^st Respondent was not duly elected

iii. A declaration that the illegal practices committed by the 1^st Respondent and or his agents materially so affected the election result that the same ought to be nullified.

iv. An order that the costs occasioned by the petition be borne by the Respondent.

Further and better particulars were furnished by the petitioner, pursuant to the order of the Court.

The Petitioner testified and called 10 witnesses. His testimony was that he was duly nominated as a Parliamentary Candidate for the Senga Hill Constituency in Mbala district of the Northern Province on the PF ticket.

He testified that between the 10^th August and 15^th September, 2011, Mr. Kapembwa Simbao addressed a meeting in Mwiluzi Ward, at the Polling Station where he alleged that the Petitioner was not credible, had stolen from National Assembly his former employers, and had been dismissed from employment as a result and had gone into politics for personal financial gain. It was remarked that the name ‘Giles’ was for a woman and everyone would regret voting for him as he was going to steal the resources.

The Petitioner was not happy at these derogatory remarks (aspersions) and called Mr. Simbao who did not answer the call. The petitioner sent an SMS cell phone message to say that it was not proper to campaign along those lines and Mr. Simbao acknowledged having received the message two to three weeks after the elections. The remarks were repeated at subsequent meetings at Chomba, Polling Station in Lapisha Ward and at Matanga Polling Station in Ipembe Ward.

The Petitioner went on to testify that Mr. Simbao and his agents camped at several places in different wards. In Mikololo Ward, they camped at Sikalembe Polling Station, in Ipembe Ward at Matanga Polling Station, In Lapisha Ward at Nsokolo Polling Station, in Malamba Ward at Chilinde Polling Station, in Chinika Ward at Mpande Polling Station while at Chozi Ward, they camped at Mikongolo Polling Station and in Chimbili Ward at Kavumbo Polling Station.

At all these polling stations in the night, video or DVDs relating to war and the devastating effects of war such as famine and scampering were shown to several people. Mr. Simbao and his agents threatened people at these places that war would erupt in the country and they would scamper as seen in the video if they voted for the petitioner.

The petitioner went on to testify that at those places in various wards Mr. Simbao invited the electorate to feast on cows that he slaughtered at each of those centres. He would fete the electorate and request them to vote for him as he was a generous person. He went on to further state that Mr. Simbao enabled a number of schools or communities to access material of their choice at Mbala and this was done before the election date.

The petitioner stated that he watched Zambia National Broadcasting Corporation news at which the former President Mr. Rupiah Banda urged the electorate in Senga Hill Constituency to vote for him. He promised that a tarmac from Mbala to Nakonde would be put within a few days. Earth moving machinery was mobilized along the road. Mr. Simbao and his agents went round stating that it was unprecedented that they would do the road immediately. The Petitioner concluded that the electorate were definitely influenced by the promises as it was a very rural constituency where people had never seen tarmac.

It was the petitioner’s further evidence that between 26^th and 28^th August a portrait of two male beings was distributed to all headmen in Chinika Ward. The villages were Pensulo, Mpande, Kunkuta, Kasanga, Munkanta, Chikunka, Nzelani and a number of others. The words on the portrait were “Don’t tell them. Hyena marry yourself. Is this the change you want? If you are a Zambian, you are a Christian, you are a woman, you are a youth, a father, a pupil and son and you love the country of Zambia, say no to the relationship of the same sex.”

The portrait was distributed by District Commissioner for Mbala District Mr. Lightwell Chongo.

On 3^rd September, 2011, the petitioner was addressing a meeting at Mukunta Polling Station when Mr. Simbao and his campaign team also arrived to address their meeting. There was a clash of these meetings and one of the speakers at the petitioners meeting Mr. Evaristo Putapo was physically beaten by Mr. Simbao and his agents.

The petitioner went on to testify that people at Mpande Polling Station were intimidated that voting for PF would entail the withdrawal of subsidized farming inputs as this was not a PF programme. The people of Senga Hill Constituency depended on maize agriculture and this intimidation done at literally all the meeting scared the people. Those who had supplied maize to FRA were threatened with loss of all they had supplied if they voted for PF. Reference was made to the transition from UNIP to MMD when, it was alleged, several people did not get their money at the time. It was further testified that Mr. Chongo the District Commissioner was going round using GRZ vehicles and telling people not to vote for the PF Candidate.

During the campaign period, several clubs were formed upon the insistence of the District Comissioner, so that they could access loans from the Citizens Economic Empowerment Commission. The loans were obtained in September. The Petitioner referred to a list of several clubs that benefited from the said funding. The clubs listed at number 25, 30 and 33 benefited. Others were Manzi Women’s Club, Twikalisha Women’s Club and Isusa Women’s club.

The petitioner further testified that when feting the electorate, government Mealie meal which was a donation to the Ministry of Education in a school feeding programme was used. Mealie meal, cooking oil and cow peas were distributed at Nasayanga Polling Station, one or two weeks before the elections, A. Mr. Muyeya standing on the MMD ticket as Councilor of Lapisha Ward gave out money to several people who were going to cast their vote. Details were taken of some witnesses with statements that the MMD government would know who would have voted for the opposition and they were going to be dealt with.

In cross examination, the petitioner said he did not report any incidence of malpractice to the election authority. He disputed that exhibit number “GYC1”to his affidavit was lifted from Evaristo Kasunga’s Petition. His document was in the Constituency which the witness had brought. He used that exhibit because it was a common one. There was nothing on it to show that it was Senga hill. He did not see the document with the 1^st Respondent. It was distributed by the District Commissioner Mr. Lightwell Chongo who was the 1^st Respondent’s agent.

He went on to testify that he obtained exhibit “GCY3” from the PF District Chairperson in Mbala who got it from the bank which was disbursing the funds. He presumed Tubombeshe was at Mambwe Mission while Natwezye was at Kavumbo. He went on to state that document GCY 2 did not relate to Senga Hill Constituency.

He did not attend the meeting held between 10^th August and 1^st September, 2011. He did not hear the words that he was not a credible candidate who had stolen money. He did not attend the meeting at Chomba, Nsokolo and Matanda in Ipembe ward. He saw ‘GCY1’ at Mpande polling station where it was distributed. The portrait of the President Mr. Michael Sata was on a video shown by 1^st Respondent in Mikololo ward between Lapisha and Mukololo ward. He had never seen the portrait of Mr. Michael Sata. He saw with his own eyes at Matanga people being fed and some people from his camp participated. The invitation was to all living in a particular ward.

The petitioner went on to testify that he presumed the former President addressed the meeting at Nondo polling station. The President was seeking re-election and he was an agent of the 1^st Respondent by implication. Most of the people in Senga hill have never seen tarmac except for those that were close to tarred roads.

The portrait depicting homosexual men was distributed to most of the headmen present at a meeting. The Petitioner was not present and the meeting was between 25^th and 30^th August. At Mukunta polling station, the Petitioner saw Mr. Simbao in the forefront of beating the individual, who was first trying to cycle away. Mr. Simbao who had been on an anthill climbed down. It was an isolated incident and not a several beating up of the cadres.

He did not know who started the fight. The Petitioner, who was not sure whether Mayeya was the correct name, went on to say that he was distributing money. He was an agent of the Respondent. The Petitioner did not know that one was required to appoint an agent.

He went on to testify that the promise of money in Mbala was fulfilled before the election date. Nzelani village was promised K 20, 000, 000 for a bridge. He never went to that village. Nasayanya was a government school. K 20, 000, 000 worth of material was collected from Mbala and Mr. Simbao’s and another person’s vehicles were used to ferry the materials during the campaign period. These were cement, aggregate, culverts, materials used to construct.

At Nasayanya School, people were promised K 10, 000, 000 for iron sheets and other materials for construction of the school and the items were received by the PTA.

In further cross-examination, the Petitioner testified that above 50% of the people in Senga Hill Constituency are unable to read. Of the elderly almost 90% are unable to read and perhaps 10% of the youth. There is no technical or secondary school in the entire Constituency. The electorate saw two gentlemen kissing but they could not read the words. The exhibit referred to the don’t kubeba’ slogan.

The money was received by the clubs from the Citizen Economic Empowerment Commission. He could not tell when tubombeshe women’s club, Natwezye women’s club and Katyesye youth club were formed or it they existed before the campaign.

In Re-examination, the petitioner testified that he was too busy with his campaign schedule to report to the authorities. It was too far and there was no police post where he had camped. He had agents and foot soldiers from Senga hill constituency. He recalled that the place was at Chela ward, Senga hill constituency in Mbala District where a promise relating to a road was made. Mr. Rupiah Banda shared a platform with the 1^st Respondent and was campaigning for all the MMD candidates. The promise to tar the road was not fulfilled but earth moving equipment was put along the road and reference made to that in the campaign. This was a falsehood and a malpractice as the road was not tarred. It was a falsehood to tell people that the fertilizer subsidy programme would not continue if the people voted for PF. It amounted to intimidating the people.

The District Commissioner was an agent of the 1^st Respondent as he was appointed by MMD government. He went around the electorate and urged people not to vote for PF, or they would not receive any subsidized inputs and that they should vote for Mr. Banda and Kapembwa. The Petitioner went on to say that the individual he had referred to as Mayeya was actually Zombe in Lapisha ward.

PW2 was Best Musanta, village headman of Pensulo village, Chief Mpande’s area, in Senga constituency. He testified that around midnight on a date between 25^th and 28^th August, he received a letter from MMD Councilor Mayeye Sichinsambwe addressed to the village headmen summoning them to meet at Mpande village. At the meeting, the said Mayeye Sichinsambwe the councilor for Chinika ward and the District Commissioner Mr. Lightwell Chongo were in attendance.

Mr. Lightwell Chongo informed the meeting that he had been sent by Mr. Kapembwa Simbao to warn them that if they voted on any other party, they would not be given any fertilizer and that they would not be given money for the maize they had produced. PW 2 went on to inform the court that their maize was in satellites, where all the maize was stored. They were warned that it would be like it happened in UNIP when the farmers lost.

The meeting was informed that Mr. Simbao had sent the village headmen blankets. A paper was produced and they were warned that the PF plan was that men marry each other. After the meeting had ended, PW 2 and others started off for the place where lunch had been prepared and on the way, they met Justus Sikazwe a PF member and upon showing him the picture, PW2 asked him whether that is the way men would be marrying. The young man said he would go to the person distributing the paper and enquire. PW2 went on to testify that he collected the blanket which he identified and it was produced in evidence.

On the 3^rd September, 2011, PW2 was summoned by councilor Mayeye Sichinsambwe to attend a meeting at Mukunta. They found that MMD and PF had a meeting in the same area. The PF meeting ended early and they dispersed. They had moved for a few meters when a young man whose sir name was Putapo was beaten by Mr. Kapembwa Simbao. After beating him up, the PF badge was grabbed from Putapo and those people left. PW2 was scared thereafter.

In cross-examination, PW2 testified that Mayeye Evaristo Sichinsambwe a counselor and MMD supporter gave out the blankets. PW2 had 51 bags, in the satellite shed. He received the fertilizer subsidy. He was very sure Mr. Chongo mentioned Mr. Simbao but the latter was not the one who personally distributed the blankets.

He just found Putapo on the ground and they were kicking him. Mr. Simbao hit him with a fist on the cheek and then he fell from the bicycle. Mr. Simbao was with three others when they beat Putako. There were headmen who did not attend the meeting on that occasion. He would not know if they received blankets.

PW3 was Evaristo Putapo a resident of Chakolwa village, in Chief Makasa’s area in Mungwi District. He testified that he was beaten at Mukunta School in Senga Hill constituency on 3^rd September, in the year 2011. On that day he had been campaigning for PF at a large gathering at Mukunta village. Just at the end of the meeting, the MMD came and parked their vehicles where it was a bit hidden and all the people shifted there. PW3 said he left as he did not attend MMD meetings. A youth who knew Mr. Simbao started chanting ‘on the watch!’ ‘on the watch!’

PW3 did not know Mr. Simbao. He told the youths that they were wasting their time in chanting ‘on the watch!’ and asked them if they had not heard them (PW3) say ‘on the boat!’ Then PW3 heard a voice in his ears ‘you talking! Don’t you know that I am Simbao? PW3 stopped the bicycle, one foot was on the ground while the other remained on the bicycle. There was an Irish well about half a metre from the ground as well as an anthill nearby.

PW3 responded that he did not know him but had now known him from the T-shirts worn by the youths with him. When PW3 said that, Mr. Simbao climbed down from the place where he had been making a call. When he reached PW3 who thought they would have a talk, Mr. Simbao hit him on the left cheek with his right hand and three well built young men fell on him. He was injured inside the mouth. The bicycle turned and he fell in a furrow. They continued beating him but he did not know who was beating him. He saw a hand snatch his PF badge. Before he got up, he saw the village headman of Pensulo who assisted him to sit up and took him to the PF chairlady where he was cleaned up. When he went to the Layambi Rural Health Centre to obtain a medical report, he was informed they would just treat him and they asked him if he did not know that Mr. Simbao was the Minister of health.

Under cross-examination, PW3 testified that he did not got to Kasama GBM offices as he had planned to do. He conceded that the MMD members did not go to the PF meeting. He heard the youth chanting ‘on the watch!’ as they went to MMD venue.

PW4 was Emmanuel Simbaya a resident of Mikongolo village, Chief Nsokolo in Mbala District. His testimony was that on 25^th August, 2011, Mr. Kapembwa Simbao and his people set up camp near PW4’s house. He allowed them to fetch water from his place. When night-fell, they put up a cinema and watched a Swarzenegar movie and another one depicting famine. While the film was showing, Mr. Simbao was saying “have you seen how people are dying? This is the way you will be running.” PW4 went on to testify that Mr. Simbao said that if they did not vote for him, they would suffer as shown in the movie.

In the morning the team went out to campaign and when they returned, they showed the same movie that had been shown the previous night. The following morning, a cow was purchased from Mr. Sichula Mateso and was skinned at the school near PW4’s fence. PW4 was given the skin and it was produced in evidence. A meeting was going on, on the other side and after the meeting had ended, they told the people not to go so that they could eat something. PW4 was at the meeting at which Mr. Simbao asked the people if they had seen how he was working for them and what Yamba Yamba would give them. After the meeting, nshima was given to the headman and his people. PW4 was given K 10, 000 by Mr. Simbao at the time of the team’s departure. The mealie meal used was that which had been sent to the school.

In cross-examination he testified that the mealie meal and cowpeas were at school having been sent in August towards September. 40 bags of mealie meal, 20 containers of cooking oil and 5 kg bags of cows peas had been sent to the school.

PW5 was Lulembo Lemondi Suze of Matanga village, Chief Tanzuka. He resides at Matanga Community School in IPembe ward. He is a peasant farmer. He testified that on dates he could not recall but during the campaign period, Mr. Kapembwa Simbao went to Matanga and set up camp there. PW5 and others used to go and watch videos of war and famine. On the third day, all the people were called and urged by Mr. Simbao not to vote for PF, Mr. Sata and Mr. Yamba yamba and that the two would bring war in the country and the people would be running fast like they had seen in the war movies.

PW5 went on to testify that the promise of roofing sheets and cement made concerning Matanga school were fulfilled while the Twichefye Women’s club received the fertilizer they had been promised. Under cross-examination, he testified that the people who watched the videos were those near the camp. Those from other villages did not watch the videos. He did not know who delivered the roofing sheets and it was not Mr. Simbao.

PW6 was John Joseph Simpemba a resident of Nsokolo village. He testified that a cow was slaughtered during the campaigns between 22^nd and 30^th August, and blankets given to village headmen. He testified that a meeting was called but when the meeting started, he went to the chief and only came back when the meeting was almost concluded and he heard Mr. Simbao say that there would be the eating of nshima. The people thanked him and said such are the people they wanted. When the meeting had ended, the people ate nshima and there after Mr. Kapembwa and his group left. The blankets were shared out to the headmen who were many. In cross-examination PW6 testified that he did not know when the meeting started nor when it ended. He went on to say that the blankets were picked around 14:00 hours. The Nshima was eaten at Mr. Siwakwi’s place.

PW7 was Bernard Sinyinza a resident of Nasayanya village and PTA chairman. He testified that Mr. Kapembwa Simbao held a meeting at Chozi attended by the PTA chairmen of all the schools in July, 2011, that is Nasayanya, Chozi, Mikongolo and Sumbi. He informed the meeting that he had prepared K 10, 000, 000 for each school for maintenance.

Afterwards, he went back on 20^th August, 2011. Some days towards September a vehicle went to the school and Stanely Simukoko who contested ward elections on MMD ticket was there. There was mealie meal, 50 bags of 25 Kgs, 28 x 5 liter container of cooking oil, iron roofing sheets, 50 in number. The cargo included 34 bags of cement paint as well as three door frames and padlocks. Stanley Simukoko informed them that the roofing sheets were the ones promised by Mr. Kapembwa while the mealie meal was for the children at school. When those items were delivered, Stanely Simukoko urged them not to vote for another party.

In September, towards the voting day Mr. Kapembwa Simbao and his team went to Nasayanga and he remarked on the thatched state of the school and went on to warn that should the people of Nasayanga vote for Sata and Yambayamba, Mr. Simbao would confiscate al the roofing sheets, cement, paint and door frames together with everything else and take the items to those who would vote for them. A promise was made to the effect that a road would be constructed if the people voted for Mr. Simbao. He invited the people to go to Mikongolo on 25^th August, when a cow would be slaughtered. The witness testified that they went to Mikongolo and ate nshima with meat from the cow that had been slaughtered. They were fed village by village.

Under cross examination, PW7 testified that in July the campaign period had not commenced. The material received was still at the school. He did not see Mr. Simbao when the items were delivered, but Stanley Simukoko. The witness did not count how many people went to Mikongolo village. The villages in attendance were Nasayanga, Sumbi, Mikongolo, Chisembo, Nchelenje. Some did not partake of the meat, it ran out.

PW8 was David Mulenga Silondwa a resident of Chomba village. He testified that on 13^th September, 2011, Mr. Kapembwa Simbao went to Chomba polling station with his team for a campaign meeting. The constituency chairman Lastone Sichilima spoke to the gathering and said that they should not vote for PF as they would not receive fertilizer nor be paid for maize sold to FRA. He went on to claim that the contestant Giles Yambayamba did not have money, he had stolen and was dismissed by his employers and that the Honourable Simbao would obtain the details. The said chairperson went on to claim that Mr. Sata would cause war to erupt.

Mr. Kapembwa Simbao stood up and agreed with what the chairman had said concerning the dismissal of Mr. Yambayamba and payment by FRA for maize delivered. Upon enquiring why construction of the hospital had not been concluded and being informed that spider trusses and roofing sheets were not available, Mr. Simbao promised to send a vehicle from Kasama and that they should select someone to collect the items form Kasama.

On 14^th September, 2011, a vehicle with Mr. Simbao’s two workers Mwenso and Kaipi went there. They proceeded to Kasama with the witness but discovered that the trusses were too long for the vehicle. The roofing sheets were not there. Mwenso, the driver, called Mr. Simbao to inform him that the vehicle could not carry the items and the latter directed that they pick mealie meal from SWADCOM company.

They proceeded to the said company and loaded 200 x 25 kg bags of mealie meal. Joel Mubanga Mutale and John Kaipi, the one who received the mealie meal signed and the witness copied on the portraits of Mr. Banda and Kapembwa Simbao. He took down the registration numbers of the two. PW8 was given a bag of mealie meal.

At Chomba village people asked PW8 where the building materials for the hospital were. PF ward secretary for Mwiluzi ward Elias Muleya grabbed the bag of mealie meal as it indicated GRZ and they wondered why it was being used for campaign. After the elections had passed, it was felt that a lot of things were not well in the way Mr. Simbao campaigned. They returned the mealie meal and told the witness not to eat it. He produced the bag in evidence.

In cross-examination, PW8 testified that the bag of mealie meal was returned after two days with an admonishment not to consume it. The PF told him to keep the mealie meal as it would be evidence against Mr. Kapembwa Simbao. He testified that the hospital was constructed when Mr. Simbao was MP. Power was connected to the teachers houses, in August, 2011.

PW9 was Andrew Mulenga of Nsokolo village in Mbala District. He testified that in August, 2011, Mr. Kapembwa Simbao went with his team to Nsokolo village and camped at Gavis Siwakwi’s house. He was the MMD secretary for Senga Constituency. On the third day, a meeting was called and quite a large crowd gathered. Lastone Sichilima the Constituency chairman urged the gathering not to vote for Giles Yambayamba for he was a thief, had a female name and would not therefore have any brains. Mr. Kapembwa Simbao echoed what Lastone Sichilima had said. When the meeting ended, Mr. Sichilima invited the people to go to Gavis’s Siwakwi’s place where food had been prepared. The people were served with nshima and beef, village by village. On 19^th September, Mr. Simbao’s agents Derrick Simusika and Tenasious Simpemba told him they had money they were giving out on behalf of Mr. Simbao to buy votes. The trio went to Vincent Zombe who gave PW9 K 10, 000 and urged him to vote for him, Rupiah Banda and Simbao. PW 9 shared the money with his wife. It was discovered by PF that he had been given money and he was told to wait. Under cross-examination, he testified that Vincent Zombe was a candidate in the elections. He denied hearing any talk about blankets at the meeting. He did not know how many people were fed as there were many people. He could not count the people from Nsokolo village. The villages fed were Nsokolo, Ngombe, Kanyai, Samatoka, Chikusela, Pambalasa, Kaele, Siwakwi, Mulozu, Seven, Chisama, Chimala, Kaliche, Mawikio, Chikopela.

PW10 was Norad Simwinga, he testified that on 29^th August, 2011, Harold Simbeya Councillor for Malamba ward delivered soccer ball with the words ‘safety malaria’ printed on it. On the 10^th September, the ward councilor announced, in the presence of Mr. Kapembwa Simbao that the latter had donated K 1, 000, 000 and football jerseys for the tournament.

All the people from the 9 villages came. The villages were Chozi, Chiswela, Chilinde, Chandayemba, Sindano, Jimu, Longa, Mulefu, Solesole. The witness did not hear what Mr. Simbao said. Before dispersing, the crowd was invited to a meal of nshima and beef. The people were happy and ululated.

Under cross-examination, the witness testified that Chomba football club was an old club and that a lot of tournaments had been sponsored by the honourable. The tournament was held on 28^th September, and the K 1, 000, 000 was given to the councilor who gave them when they won. Four teams participated. There were nine teams in the ward and the competition commenced in June, and the finals were on 28^th September.

PW11 was Emmanuel Silwimbwa of Chandaemba village. He testified that Mr. Harold Simbeya candidate in the ward on MMD ticket asked the witness to go and purchase an animal. PW11 purchased and slaughtered the animal, loaded it on an MMD vehicle. He skinned the animal at Simbeya’s house, cut it into pieces and made it ready for cooking.

When those who had left for a meeting came back they found the cooking almost ready. PW11 participated in distributing nshima and relish to those who had come from the meeting village by village. The villages present were Chilinde, Chiswela, Sindano, Jimu, Longa, Vundoka, Sole sole and Nachitanga. The witness produced the hide from the animal he slaughtered. PW 11 marked the close of the petitionor’s case.

The Respondent testified and called 3 witnesses. His testimony was that as regards the picture referred to in paragraph 5 (1) 7 of the petition and the picture of the President Michael Sata, no witness gave corroborative evidence on that item apart from the Petitioner.

The first time he saw the picture in paragraph 5 (2) was in the verifying affidavit. He denied having anything to do with the picture, or with Mr. Chongo. At the time of the campaign, he was not in government and Mr. Chongo had nothing to do with him. He went on to observe that the picture copy attached to the verifying affidavit was very unclear and it was impossible to recognize anyone.

He went on to testify that there was no MMD manned sheds. All the sheds were for FRA. He informed the Court that use of fertilizer subsidy and maize purchase was of the party manifesto and it was explained that the manifesto placed emphasis on maize purchasing and the1st Respondent was asking the people to find out from the PF candidate and supporters what the PF manifesto stated on fertilizer subsidy and maize purchasing. He testified that as regards allegations contained in 5 (4) he had no contact with government offices during the campaign and had no idea if they carried out any such activities. He never met with the three offices mentioned and observed that apart from the District Commissioner, no other witnesses gave corroborative evidence on the other offices except the Petitioner.

On the issue of giving out blankets, the 1^st Respondent admitted giving out blankets to headmen in May, 2011. The blankets were given to party executives to distribute in particular, in Chinika ward. They were given on 28^th May to a Mr. Sichinsambwe. In Lapisha, the blankets were given on 28^th May, to a Mr. Gavi’s Siwakwi. He went on to testify that the programme of helping headmen began in 2009 when he started buying them solar lamps but these ran out. The company that used to stock them ran out and he resorted to buying blankets. He explained that the programme began with chiefs. He bought iron sheets and cement for six chiefs starting from 2008, then the headmen started complaining but as he could not buy iron sheets and cement for them he resorted to solar lamps and blankets.

Concerning paragraph 5 (5) of the Petition, he testified that he had no contact with CEEC and could not recognize any of the clubs as belonging to Senga Hill Constituency. He went on to testify that regarding paragraph 5 (6), he had no contact with any of the said offices and was very attentive during the witness’s testimony and noted that none of the witnesses made reference to the District Agriculture Coordinator and the District Education Board Secretary except the Petitioner.

The 1^st Respondent denied the allegation contained in paragraph 5 (7) of the Petition and testified that he did not distribute anything to the electorate during the campaign period. He explained that he only gave K 10, 000 to Mr. Simbaya for hosting them, though he conveyed the money through those that the host had negotiated with.

The 1^st Respondent denied distributing any food stuff. He explained that there was a Ministry of Education programme for feeding school children where many of the schools in Senga Hill Constituency had benefited. He denied uttering any words concerning Mr. Yambayamba as alleged in 5 (9) at the polling station but he recalled that on 22^nd May, 2011, at Senga Hill, the constituency chairman stood up at a meeting and made remarks about Mr. Yambayamba. On 23^rd May, the 1^st Respondent received an SMS from Mr. Yambayamba complaining about the aspersions and the Petitioner wanted the Respondent to stop it or he would take the latter to Court and that he was not a loafer nor was he fired from parliament. The Respondent went on to tell the Court that he downloaded the information and that the download indicated the date of 23^rd May, 2011, 10:06 hours as the date it was sent. He showed the message to the chairman Mr. Lastone Sichilima and admonished him not to proceed in that manner during the campaign, in scandalizing people’s names or character. The Respondent had done a lot in the constituency and had given something of development to almost each school, there being about 45 to 50 schools.

The Respondent testified that whereas he had found only 5 clinics, the constituency could now boast of about 15 clinics. He testified how he took medical personnel to the constituency who attended to the people’s medical needs. He therefore told the chairman that he did not want to character assassinate because of the many projects he had executed and the character assassination was not repeated. He denied, as regards 5 (10) that voters card particulars were taken down and remarked that no witness corroborated the petitioner’s evidence.

In addressing 5 (11) the Respondent testified that he did not carry out acts of violence. He stated that on the 3^rd September, 2011 at Mukunta, he went for an MMD meeting which had been arranged for 14:00 hours. He arrived at 15:00 hours and found a meeting going on which was suspected to be PF and the Respondent instructed his people not to disturb the meeting but to go to a place about 300-400 metres only and wait for their colleagues to end their meeting. Unfortunately when the people saw them, almost all the people attending the meeting followed them where they were going and the meeting began. The 1^st Respondent had a need to call Lusaka and went to look for a signal. A man who he later came to learn was Putapo came on a bicycle stopped about 10 metres from them and started insulting the MMD and its cadres. They ignored him but he went right where they were and when the 1^st Respondent asked him what they had done, he responded by asking the 1^st Respondent who he was and when the 1^st Respondent told him his name, he said he had not been addressing him but that person in the MMD T-shirt. The man referred to who was Chishimba, then got annoyed and approached Putapo and at that point, the Respondent left and went back to the meeting. Afterwards, Chishimba went and informed the Respondent that there had been a scuffle between them. He denied hitting Putapo and went on to say that Mr. Musanta who claimed to have seen the 1^st Respondent hit Putapo did not tell the truth. At that location, there was no one nearby but the four of them.

On allegation number 5 (12) the 1^st Respondent testified that Mr. Rupiah Banda did not go to Nondo. He went to Senga Hill, a settlement although it bears the name of the Constituency. That was the only place he visited in Senga Hill Constituency. He was also a candidate campaigning for himself. He did not promise the people but confirmed what was happening, that the long neglected Mbala Nakonde road was being tarred and that the contract had been awarded and machinery had started arriving. The 1^st Respondent informed the Court that the process of awarding a contract was a long one but when PF came into government, they froze al the road contracts saying they wanted to see how genuine the award of contracts had been and therefore works on the road stalled. He went on to testify that the Road Development Agency through Ministry of Works and Supply awards contracts. He was not involved in the process of awarding contracts and that at the time, he was an MP and his role was just to lobby. The contract was awarded around March, April, 2011.

The 1^st Respondent went on to testify that he did not do what was alleged in number 13. He votes in Senga Hill and that on that day he was at Senga Hill, 170 kilometres away, casting his vote and there was no way he could have been at Nasayanga.

The items of iron sheets and cement were a Constituency Development Fund issue, which was allocated around February, 2011. From the amount of K 500, 000, 000 disbursed, each school was given K 10, 000, 000 and they had to sit and decide what was to be purchased. The 1^st Respondent, who had never been to Nasayanga until September, 2011 was shocked at the state of the school and the reason was that there was no road to talk about. He denied having anything to do with CDF during campaign. He rounded up all the polling stations in Senga Constituency in May/June and went to al the constituencies except Nasayanga and at all the meetings, the schools were informed about the K 10, 000, 000 and that they were required to go to the council, the disbursing agent.

The 1^st Respondent testified that the process involving the constituency development fund was that there was a CDF committee which consisted of the MP, four people from the community, a representative from the council and two councilors. When the committee allocated he funds, the issue was taken to the full council for approval and upon approval, the disbursement or any other implementation process remained with the council.

The 1^st Respondent went on to testify that in May, 2011, he sent his vehicle to deliver material for his building in Senga hill in Lusale village. He received a call from a Mr. Mayeye Silwamba who was complaining about a bridge. The 1^st Respondent called the DC and expressed displeasure that the bridge, which had collapsed the previous season, had not been attended to despite the availability of funds. The DC informed him that the constraint of transport was the cause of the delay whereupon the 1^st Respondent suggested that he could avail his truck to transport the culverts as it was in that area. The culverts were accordingly delivered by his truck.

As regards Chomba polling station, around 13^th September, 2011, the 1^st Respondent enquired why the clinic was not progressing and the response was that the materials were stuck in Kasama as there was no transport. These materials were bought by Ministry of Health Lusaka headquarters and were then transported to provincial capitals and that was where the community based clinics were drawing the materials from. The Respondent had a seven tonner Mitsubishi FM 515 and he told the people that if the items could fit in the truck, he would dispatch the truck in the morning so that the material could be collected so that they continue to build their clinic.

Unfortunately, he was called and told that the only material available there were the trusses which were 14 metres long and could not fit in the truck he had sent. He then directed his men to pass through the campaign centre and find out if there were campaign materials for senga hill. The truck returned empty as there was nothing at the campaign centre for Senga Hill.

He went on to testify that the truck could not carry above 150 bags of maize and because of age, he did not allow the carrying of beyond 100 x 25kg. When he looked at the bag of mealie meal produced in evidence, he informed the Court that he had never seen that bag until in court. They had bought mealie meal made by African Milling Company.

Concerning paragraph 5 (8) the Respondent testified that he had slaughtered cows for the foot soldiers, not for the electorate. One cow could never feed a ward. Before they went into campaigns the MMD secretariat suggested the establishment of feeding centres at all polling stations throughout the campaign. That suggestion was not possible for the Respondent to implement due to the expense involved as the Constituency was vast.

Instead, the MMD Constituency executive agreed that they stay for three days in each ward and on the third day, the branch executives should go to the camp site so that they review their position politically, agree on how to carry on after the Respondent and his team had left and appoint polling and election agents per each polling place in that ward. These meetings were being held in the afternoons on the third day as the team had to hold a local meeting in the area they had camped and this gave an opportunity to the executive members coming from far places to arrive.

It was known that they would not eat unless they were fed. Upon arrival, each branch would register its number. At the end of the executive meeting, these people were given nshima with beef from the cow they used to slaughter, before they went back. Distribution was by the name of the branch and the number of people that registered. The branch number is not limited but went up to 31. The feeding of the cows was purely to the branch executives. Anyone who was not a member of these executives that ate just crashed. The mealie meal used was from Africa Milling Company. The cows were sourced from the local people. The 1^st Respondent went on to tell the Court that a cow was the most ideal food for a big group as not enough chickens or goats could be sourced.

The mealie meal was bought in Kasama and was transported using truck Mitsubishi FM 515 7 tonne truck which carried all their food, mealie meal, sugar, cooking oil, eggs salt and other things. These items were bought from Lusaka and they stayed in the truck and would be offloaded when it was about to be used.

The 1^st Respondent further testified that he showed films to people on his campaign trail and the reason was that he had to keep his people on the campaign trail entertained when he took them away for 21 days from their houses as he did not allow alcohol of any sort as the team very well knew. As the group was big, his portable DVD was inadequate and he provided a projected view of the films. The films were purely for the people he was with on the campaign team and never at any time were people invited to go and watch. Those who came were those who lived near the camp and they could not be chased away. The films were four. Arnold Swarzenegger, terminator 3 and commando and Van Damme no retreat no surrender, Michael Jackson, some cartoons, beauty and the beast.

The 1^st Respondent went on to testify that he had organized a very successful football league in the constituency. The teams would compete in the wards and the Respondent would send transport to all the wards to pick them up and bring them to the tournament for almost 10 days every independence week. Preliminaries, knock out, on semi-finals programme was very successful until 2008 when the losing home team in the finals refused to accept the loss and burnt the field. The 1^st Respondent thought it was time to stop.

In 2010 when he visited the Constituency, he received apologies everywhere and was requested that they resume the competition. The 1^st Respondent acceded but told them the competition would be ward based and the 1^st Respondent would participate at independence time when he would send them something. Around May he gave footballs to almost all the teams in the Constituency so that they start competing but he did not disclose the amount of money they would contest for at independence because he was still aggrieved and was not sure how much money he should spend. The decision as to how much money he would spend was made on 16^th October, 2011, when he decided on K 600, 000 for men and K 400, 000 for women in a ward. He called Chishimba from the village on 17^th October, 2011 to pick up the money and the latter came and collected K 9, 000, 000.

The 1^st Respondent went on to testify that he knew Vincent Zombe who was an aspiring candidate. He denied giving money to Vincent, he had no money to give him. He was carrying a permanent group of 35 which moved with him from ward to ward. Others would join them in a ward and sometimes the number swelled to 50, sometimes 54. The 1^st Respondent had about 12, 000 votes, the Petitioner PF 5 575 and Green Simutowe, UPND 238. He did not agree that his election should be nullified as he was duly elected and declared so by the ECZ and prayed that the Petition be dismissed.

In cross examination, the 1^st Respondent testified that he was first elected for Senga Hill constituency in October, 2001. He had been a Member of Parliament since then. He knew 2011 was an election year. He had campaign material but did not personally dish out the campaign material. His campaign team was involved. Some would be at camp to cook and some would go for meetings. He admitted that the executive members of MMD at branch, ward and Constituency levels campaigned for him. He was not in the constituency at all times. He would be in one place at a time. If he was at Nondo he would not know what was happening at Matanga. He had his food stuff which he carried from Lusaka using his vehicle Mitsubishi 7 tonne truck. He carried about 4 bales of 2 kg of sugar, 20 x 5 litre containers of cooking oil and 100 x 25 kg of mealie meal. He campaigned for about 32-33 days though he was not sure about the number of days. Only the 100 bags of mealie meal were used, though he did not know how many bags of mealie meal would be used after an executive meeting.

He campaigned for the Presidential candidate, the local government candidate as well as himself. The other two aspirants campaigned for his re-elections. The campaign by other candidates was sometimes in his absence. He would not know what was said or done in his absence. He would not know if the District Commissioner went round Senga Hill Constituency and never met him throughout the campaign period. Mr. Chongo was elevated to Permanent Secretary after the previous Permanent Secretary was made a candidate for Mbala.

The 1^st Respondent denied seeing a single copy of the poster in Senga hill constituency. He informed the Court that he rarely listened to news nor read the papers. He recalled a heated debate on homosexuality and he had heard that the PF President was in support of homosexuality. He had seen Pensulo for the first time in Court. He did not know he was village headmen in his constituency nor Mr. Musanta. He went on to testify that he was not with MMD contestant for Mpande ward, Mayeye Silwamba all the time but knew him. He did not know the campaign messages of the local government at the meetings. He stated that the allegation of theft against the Petitioner was made in May at a big meeting in the year 2011 and he would not know if those people repeated the words that the Petitioner was a thief.

He went on to say that he told the people that his party manifesto preached maize and fertilizer subsidies. He denied telling them that PF would do away with subsidies or that PF had no fertilizer subsidy. He had no idea if his agents got in touch with government offices or institutions.

He went on to testify that he used his Mitsubishi truck during the campaign and it was not used to ferry his supporters. He recalled dealing with a kick out malaria programme and that the Ministry procured footballs on which the words ‘kicking out malaria’ were printed. He admitted holding a meeting at Chilinde in September. He admitted knowing Harold Simbeya who was an aspiring candidate for Malamba ward. The villages of Chozi, Chiswela, Chilinde, Chandaemba, Sindano, Jimu, Longa, Mulefu and Sole Sole were not represented at the meeting of 10^th September. Most of the villages are in Malamba ward. He knew about six villages in malamba ward, namely Ndoka, Chiswela, Chilindi, Chandaemba, Sindano and Jimu. The village of Chilinde was represented at the meeting of 10^th September. Harold Simbeye was present and the people at Chilunde were addressed. The 1^st Respondent denied giving jerseys for competition at the tournament, nor did his agents do so, to his knowledge. He gave out K 9 000 000 on 19^th October, to the person who was supposed to give K 1, 000, 000 each for the tournament. He denied knowing about the alleged promise Harold Simbeya had made.

He admitted giving blankets to the headmen. He left them with party executive members to distribute and this programme ended in May, June. He denied encouraging any of his members to form clubs and stated that he had done very badly on that one.

His Constituency members did not access money through CEEC. He did not know about Natwezye women’s club, Nalishya coffee growers, nor Tubombeshe women’s club. He recalled hosting a meeting at Mikongolo where he gave K 10, 000 to Mr. Simbaya. It was in appreciation of being hosted but he did not personally give the money to Simbaya but to the people he had been holding his meeting with, and was not there when the money was given to him nor what he was told, but his instructions were to thank the host.

The foot soldiers were fed on the third day and they used to take a register but he did not have a copy of the register. There were 9 wards in Senga. 6 animals and not 9 were slaughtered for Lapisha Mikololo, Chinyika. His executive members were about 35.

He denied offering his vehicle to transport roofing sheets to Nasayanga. He offered his motor vehicle at Chomba to go and collect material for the clinic during campaign period. He offered the vehicle to transport Culverts in May before the campaign period. His vehicle never delivered stones during the campaign period. On the 3^rd day he had a meeting with local people. They were not invited to go and eat. People were called branch by branch, not village by village. He did not know if PW11 was sent by Harold Simbeye as he said but Harold was aspiring candidate for Malamba. Emmanuel Silwimba was not a member of any of his executives nor a foot soldier. He denied telling people that if they did not vote for the 1^st Respondent’s camp, they would be scampering.

He found the clinic at Chomba Health Post not yet roofed and offered his truck to pick trusses from Kasama at Provincial Health Office. He sent Mwenso, a driver and John Kaipi, a Lorrymate. They called him once when they were in Kasama. He denied knowing a place called SWADCOM nor a bana Chama. He testified that the truck went back empty. He had seen no clause stopping a candidate from using his own vehicle to ferry government material in the electoral code of conduct. When he offered his truck, the people were happy but he failed at that polling station.

He denied beating Putapo and said the latter was saying MMD were dogs and that he that he did not go to dogs meetings. He went on to testify that the money spent at Nasanyanga School was from the constituency development fund.

He testified that the allegations against him did not touch on the electoral commission of Zambia. And that he never visited government offices nor Electoral Commission of Zambia offices during the campaign. He was shown the votes received by each of the three candidates at the constituency and testified that the Electoral Commission did not in any way influence the outcome of the elections. The Electoral Commission of Zambia played a balanced role during and after the elections.

DW2 was John Kaipi a resident of John Howard in Lusaka. He informed the Court that he was the 1^st Respondent’s houseboy. He testified that he was sent to Kasama on 8^th September, by Mr. Kapembwa Simbao and was instructed to get mealie meal. He had a 7 tonne vehicle and went to collect 100 bags of mealie meal. He was with Mr. Mwenso, a driver. He collected 100 bags of mealie meal from the campaign centre. He had the name of the person he collected mealie meal from. He wrote it on a piece of paper, a MMD poster, at the back. He wrote his name and that of the person from whom he got the mealie meal. He took down the NRC number as well. He put the paper on the dashboard in the truck and there were a lot of posters of the same size on the dashboard. The mealie meal was taken to the campaign centre at the chairman’s place. The mealie meal was African Milling brand. When shown exhibit P4, he informed the Court that the mealie meal was not the one they collected.

DW2 went on to testify that on 14^th September, a Wednesday, Mr. Simbao sent him to Kasama again and told him that a person would be waiting for them at Chomba for collection of trusses at Kasama. They went to Chomba and picked up the person and he led them where the trusses were to be fetched but the trusses were too long for the vehicle. DW2 told the driver to call Honourable Simbao and inform him that the russes were too long. When the latter was called, he directed them to go to the campaign centre and collect campaign materials like T-shirts and chitenge.

Before going to the campaign centre, they went to the market as the driver and their companion wished to do so. They later went to the campaign centre where they were informed that Senga hill had already collected the campaign materials and they were finished. The three then went back to Senga and at chomba, the person they had earlier picked up requested the driver to give him his number for he wanted the driver to ferry sand for him. He was availed the number and he took a lot of posters so that he could go and give people.

The following day, DW2 realised that the person they had been with had taken the poster on which DW2 had written the particulars he took. In cross examination DW2 informed the Court that he knew his registration number and that where he collected the maize, the man asked for his particulars. The number of bags was indicated on the paper. He testified that PW8 lied that 200 bags were collected from Kasama. He denied meeting Bana Chama while in Kasama, nor going to a place called SWADCOM.

He went on to say that the vehicle they were using in Kasama was a Mitsubishi and it was used during the campaign. On returning from Kasama, the vehicle was not reloaded as DW2 had to go to Lusaka on the same vehicle.

He testified that he was not with honourable Simbao when he addressed a meeting at Chomba hill. They went to Kasama on three occasions, while in senga hill. On the first trip they went to buy fuel. On the second one, they went to get mealie meal. The driver did not go to ferry sand for PW8.

DW3 was Gavis Siwakwi and he testified that on 27^th May, 2011, he received a message of Mr. Simbao’s visit to senga. As vice constituency chairperson, he received him. A meeting was held on 28^th May, 2011 and after the meeting, the honourable prepared something like blankets because the headmen had complained that they also wanted something because the young ones play football and netball. DW3 received 27 blankets according to the names of the headmen and the villages. DW3 and headman for Nsokolo John Joseph Simpemba agreed that the blankets be taken to senior chief Nsokolo until the following day.

In the morning, John J Simpemba, who at the moment was no longer headman went to the chief together with DW3 and the latter collected the blankets which he shared out and the first person to get a blanket was John J Simpemba who was headman in Nsokolo village at the time. DW3 distributed the blankets up to 30^th May. When shown p3 and p1, he informed the Court that p3 was not one of the blankets he gave out. P1 was similar to the one that had been distributed.

In cross-examination, DW3 admitted knowing Alfred Siwakwi. He could not know about an animal. He denied buying an animal from Alfred Simakwi. He did not recall receiving honourable Simbao on 1^st September, as he was operating at Kamutozo satellite depot in Lapisha. He denied knowing anything about honourable Simbao camping in Lapisha ward, where DW3 lives. He was buying maize from FRA. He did not know if Mr. Simbao was in Nsokolo village. On 22^nd August, 2011, DW3 was at FRA Kamutozo satellite depot and did not know who received Mr. Simbao as he got permission that he was working at the satellite and was not in the campaign. He denied knowing anything about a cow being slaughtered as he was coming back at night. He did not know anything about feeding of foot soldiers as he used to be found at FRA. He started checking maize in June.

He testified that he never participated in the plan for elections and was not in the campaign. He informed the Court that Zombe Vincent participated in the local government elections for Lapisha ward. Due to the programme he had with FRA, he would not know that Hon. Simbao camped at his house or that a cow was slaughtered.

DW4 was Joseph Chishimba of senga, Kalyati village. He testified that he played a role in the 2011 elections. He went to Mukunta for a meeting in September. They found that the meeting had ended. Before the meeting started, they went to look for a place where there was network, when they got to that place, they saw one person approaching and he was hurling insults that MMD were dogs and they were not wanted there. When that person got near, Hon. Simbao asked him what they had done and the person asked him who he was. Hon. Simbao told him that he was Simbao and the person retorted that he did not know him and it was not him he was insulting, but that he was insulting the one wearing MMD T-shirts. DW4 asked him what wrong he had done. Mr. Simbao was called to the meeting and when DW4 remained alone, the person asked him if he knew that he was PUTAPO and DW4 responded that he could not know him, as he was not a resident of that place. Children started chanting PUTATO! PUTAPO! PUTAPO then slapped DW4 and DW4 slapped back and PUTAPO fell down. People came to separate them and DW4 left for the meeting place.

DW4 went on to tell the Court that they were informing people about development. DW4 was youth chairman and football programmes were started in 2002 and matches would be played in zones in each ward. On 24^th October, all the teams would gather together. In 2002, they met at senga, in 2003 the venue was Mambwe Mission. In 2004, they met at Nondo while in 2005 they went back to mambwe. In 2006 they met at Nondo while in 2007 they met at Chozi. In 2008 at senga, the games were not completed as there arose confusion in that one team that lost to another burnt the football field and they stopped playing football. In 2010, a complaint was made to Mr. Simbao who agreed that the football game be revived but that the teams would not gather but would play in the wards. In May, 2011, all the wards were given jerseys and soccer balls. They made teams and started playing. In October, they played and money was taken and each ward was allocated K 1million each. DW4 went to share the money on 21^st October. The wards he found had played soccer, were six, that is Malamba ward, Chimbili ward, Chela ward, Lapisha ward, Chozi ward. The other three did not play.

Under cross-examination, DW4 testified that there was a lawn in the football pitch and he did not know how high the grass was. The meeting had ended but the people had not yet dispersed. He heard children chanting Pankoloko! Pankoloko! Putapo was on a bicycle. They were three when they met him. He maintained that he was the only one who beat up Putapo. It was not true that Hon. Simbao beat Putapo first. He testified that there were people who saw the fight. DW4 got annoyed at being beaten. He did not report Putapo for the slap and insults. The nearest police station was at Chozi, almost 40 kilometres away.

DW4 testified that he was with Hon. Simbao in the campaign and that six cows were slaughtered. The feeding was not done village by village, but the food was being given to the branches. DW 4 was at meeting held at Mukololo ward, Ipembe, Lapisha, Malambwe, Chimika Chozi and Chimbili wards.

In Mikololo they camped at Sikalembe, in Ipembe ward, the camp was at Matanda. In Lapsha, the camp was at Nsokolo, in Malamba, it was at Chandaemba, in Chinika at Mpande and in Chozi at Mikongolo while in Chimbili ward they camped at Kavumbo.

The announcements for people to go and eat was not done at a rally. The meetings on the 3^rd day were announced at polling stations. They had lists for branch officials and that was how they would know them. He did not have the lists for branch officials. He maintained that the foot soldiers were only fed once. Videos were shown at Sikalende, Matanga, Nsokolo, Chandaemba, Mpande, Mikongolo and Kavumbo. They were different and there were scenes of war. Those in the villages who wanted could come and watch.

Under continued cross-examination by counsel for the 2^nd Respondent, he testified that he was the MMD youth chairman who was involved in organizing the tournament. He was not Mr. Simbao’s body guard or bouncer and that was the only scuffle he had. There were no fights elsewhere caused by MMD people, the tournaments were held on independence day and were meant to entertain people and not for campaign.

This witness marked the close of the 1^st Respondents case. The 2^nd Respondent did not call any witness. The parties filed in written submissions which I have taken into account and will refer to them in the course of the judgment.

At the outset it is pertinent to state that the burden to prove al the allegations made against the 1^st Respondent herein lies on the Petitioner. In an ordinary civil suit, a claimant has to prove his case on a preponderance of probabilities. That however is not the standard of proof in an election petition. In the case of MICHEAL MABENGA VS SIKOTA WINA & OTHERS 2003, Z.R. 110, the Supreme Court of Zambia held that:

“An Election Petition like any other civil claim depends on the pleadings and the burden of proof is on the challenger to that election to prove to a standard higher than on a mere balance of probability.”

That standard of proof has been stated to be slightly lower than proof beyond reasonable doubt but beyond probability and that is the standard to which the Petitioner has to prove his allegations.

I will deal with the allegations as they appear in the Petition. The first one is number 5 (1). No proof was led that the 1^st Respondent made false statements and displayed a portrait of the PF President Michael Chilufya Sata defaced with a snake and depicted as a devil as alleged in that ground. It was seemingly abandoned and is dismissed.

On the second allegation in 5 (ii) relating to the making of false statements and distribution of a brochure depicting the PF President Mr. Michael Chilufya Sata and PF male candidates as being for a pro-homosexual government, the Petitioner’s testimony was hearsay.

PW2 Best Musanta testified that a paper was produced at a meeting attended by the District Commissioner Mr. Lightwell Chongo and Mayeya Sichinsambwe a councilor in Chinika ward. The testimony does not refer to the 1^st Respondent as having produced the paper nor uttered the comments that the PF was for a pro-homosexual government. There is no evidence that the District Commissioner and councilor were the Respondent’s polling or election agents. I note that the District Commissioner was a government employee and Mr. Simbao was no longer MP at the time the paper was produced by Mr. Lightwell Chongo. This allegation is unproved against the 1^st Respondent. However, I find that the District Commissioner uttered those words to the headmen at the meeting.

The testimony on the third allegation in 5 (iii) was that of PW2 and PW8. PW2 testified that Mr. Lightwell Chongo relayed the warning on behalf of Mr. Simbao that if the people voted for any other they would not be given fertilizer nor would they be paid for maize delivered to FRA. This is hearsay and cannot prove that the 1^st Respondent uttered those words. There is no evidence that Lightwell Chongo was the 1^st Respondent’s agent. He was a government employee and not the 1^st Respondent’s employee. Further, “statements, as distinguished from acts by an agent are not pirma facie evidence on the hearing of an election petition against a party for who he had acted as agent in the election in question… (See Halsburys Laws of England 4^th Edition Volume 15 paragraph 820.”

PW8 struck me as a witness with emotion and this was evident in the tone in which he delivered his evidence. I will treat his testimony with caution for bias affects a witness’ credibility. He testified that the 1^st Respondent said that if they did not vote for them they would have no fertilizer and would not be paid for the maize supplied. On this issue, it was the 1^st Respondent’s testimony that he was asking the people to find out from the PF candidate and supporters what the PF manifesto stated on fertilizer subsidy and maize purchasing.

It goes without saying that in a rural area, provision of subsidized fertilizer and the purchase of maize are very pertinent to the electorate and it is not disputed that those issues were addressed at the meeting. I do not believe that the 1^st Respondent did not utter the words attributed to him. A campaign meeting is intended to sell a candidate to the electorate and I doubt that a candidate would be so naïve as to send the electorate to an opponent to enquire what his partys policies are on certain issues.

It is a matter for comment that it was not suggested to PW8 in cross examination that in fact the 1^st Respondent had asked the electorate to find out the PF’s position on purchase of maize and provision of subsidized fertilizer. I prefer the testimony of PW8 on this issue as it has a ring of truth to it and I find this allegation proved.

Allegation number 5 (iv) related to the use of the offices of the District Education Board Secretary and the Citizen Economic Empowerment Commission which offices allegedly held meetings with women and youth clubs and promised them free fertilizer and other farm inputs in exchange for votes for the 1^st Respondent and the MMD. No evidence was led on this allegation to prove that such offices held meetings with women and youth clubs and the clubs promised free fertilizer and other farm inputs in exchange for votes for the 1^st Respondent and the MMD. This allegation was seemingly abandoned and is accordingly dismissed.

Likewise, no evidence was led pertaining to allegation number 5(v) that the 1^st Respondent or his agents influenced the CEEC to fund selected women and youth clubs. Exhibit ‘GCY3’ was not compiled by the Petitioner and the heading reads CEEC Beneficiaries 2011. Certainly, the Petitioner could not testify to its contents having not been involved in the disbursement nor give helpful testimony pertaining to that exhibit. No witness was called to prove that the 1^st Respondent influenced that office to disburse loans to clubs in his constituency. The allegation remains unproved and is accordingly dismissed.

Allegation numbers 5 (vi) equally remains unproved as no proof was brought to substantiate the allegation that use was made of the office of the District Commissioner, District Agricultural Co-coordinator and District Education Board Secretary as well as government transport, to hold meetings with women and youth clubs. It is accordingly dismissed.

The testimony pertaining to allegation 5 (vii) is that of PW4 and PW9. It is not disputed that PW4 was given K 10, 000 by the 1^st Respondent. He (PW4) thought that was in appreciation of his hospitality to the 1^st Respondent and his campaign team. He did not testify that the K 10, 000 was given to induce him to vote for the 1^st Respondent and I accept the 1^st Respondent’s explanation that K 10, 000 was in appreciation of PW4’s hospitality and I so find.

PW9’s testimony was that two persons told him about money to be had in exchange for votes and they went to Vincent Zombe, a candidate in the ward elections. The said Vincent Zombe gave PW9 K 10, 000 and requested that the witness votes for all the three MMD candidates in the tripartite elections. The said Vincent Zombe had an interest in the elections and there being no evidence that he gave the K 10, 000 at the instigation of the 1^st Respondent, it cannot be held that he bribed PW9 with the said sum at the behest of the 1^st Respondent.

PW8 testified that the 1^st Respondent offered to transport trusses and roofing sheets from Kasama to Chomba village where works on a hospital under construction had stalled due to the non availability of transport. The 1^st Respondent confirmed this occurrence and I therefore find it proven.

PW8 further testified that he was picked up by the 1^st Respondent’s driver Mwenso who was in the company of Kaipi and they proceeded to Kasama where they found that the trusses were too long for the vehicle to ferry and that the 1^st Respondent was called and informed. This evidence has been confirmed by DW2 who testified to the same effect as well as the 1^st Respondent who confirmed that he was called and gave further instructions.

According to PW8, the two went to SWADCOM Company where they collected 200 bags of mealie meal and he took down the registration numbers of the persons who released the mealie meal as well as John Kaipi who received the mealie meal. On this issue DW2, John Kaipi’s testimony is that the portrait on which he wrote the particulars of the person he received mealie meal from as well as the quantity, was picked by the person they had gone with to kasama, that is PW8.

One would assume that the particulars of the person who had released the mealie meal should have been for a record not only for DW2, but for the 1^st Respondent on whose behalf the mealie meal had been collected. If the mealie meal was collected on the 8^th September, 2011, according to DW2, why did he keep his record of the collection of the mealie meal until the 14^th September, 2011 when they picked up PW8 enroute to Kasama? One would have expected DW2 to hand over those details to the 1^st Respondent almost immediately.

Further, the 1^st Respondent and DW2 claim that the mealie meal used by the 1^st Respondent in the campaign was collected from Kasama. DW2 did not testify that he indicated the place from which the mealie meal was collected on the portrait though in his testimony said he collected it from the campaign centre. It is too much of a coincidence that PW8 knew that the mealie meal was collected from Kasama. The only logical explanation was that he was with John Kaipi and Mwenso when the mealie meal was collected. I prefer PW8’s testimony to that of DW2 for I find it confirmed by odd coincidence. DW2 confirmed that PW8 did some writing on that day though he states it was a phone number for the driver that he wrote down. This was not put to PW8 in cross-examination nor does it make sense that a hired driver could make arrangements to ferry sand in a truck that was used throughout to house foodstuff for the 1^st Respondent. I do not believe that PW8 took down the number of the driver. He wrote the particulars of DW2 and the person the mealie meal was collected from. Further, on this point, having heard the unshaken evidence of PW8, the 1^st Respondent ought to have called evidence to refute PW8’s testimony. It is my considered view that PW8’s evidence on this issue is credible as it has been confirmed by being consistent with DW2’s testimony as well as odd coincidence.

The 1^st Respondent testified that he was on the campaign trail for 21 days and in cross examination testified that only 100 bags of mealie meal was used during this period. This mealie meal according to DW 2 was collected on 8^th September. It cannot have been the one used from the start of the campaign period then as it was only procured less than two weeks before the close of the campaign period.

PW8 claims that he was given a bag of mealie meal and I accept that this was so for he was present when the mealie meal was collected. Whether or not the mealie meal belonged to the government has not been established, however. It was collected from SWADCOM Company and no witness came to testify concerning the collection of the mealie meal from that company, that is, whether the mealie meal belonged to the government and was being disbursed on behalf of the government or whether that company had bought the mealie meal from the government. In short, how did the mealie meal end up at SWADCOM Company if it belonged to the government? Those questions remain unanswered.

Further, I have my doubts that the bag of mealie meal produced in Court is the very bag that DW2 and the driver allegedly gave to PW8. In one breath he testified that the bag of mealie meal was returned after the elections and in the other that it was returned after 2 days, which would be the 17^th September, 2011, before the elections had taken place and the Petitioner had lost. And yet the PF officials who returned the bag instructed the witness to keep the bag so that it could be used in evidence. I am not satisfied that the bag produced by PW8 is the bag of mealie meal that was given by the two young men. There is no evidence that the bag was given at the instigation of the 1^st Respondent. PW8 did not testify in the examination in chief that he was told to vote for the 1^st Respondent when he was given the bag. Had that been the intention, I doubt that only one bag could have been given out.

PW4’s testimony was that the mealie meal used by the 1^st Respondent to feed the people was that donated to the school. Under cross examination he testified that the mealie meal was still at the school to which it had been donated while in re-examination he testified that the mealie meal that was used for food was that donated to the school by government. The number of the bags of mealie meal that were allegedly used was not indicated, nor the number that had been utilized by the school. The number of bags remaining after the camp meeting had broken up has not been indicated. It would have been the easiest thing to call the custodian of the mealie meal from the school to come and testify on this point. On this issue, PW4 is not a credible witness as he was not the custodian of the mealie meal and was not possessed of specific details pertaining to the mealie meal. The veracity of his testimony is doubtful. I find the allegation of use of government mealie meal at Mikongolo unproven.

As regards 5(viii), it is not disputed that cows were slaughtered at six villages. The evidence on this issue was from PW4 of Mikongolo village, PW 5 of Matanga village, PW6 of Nsokolo village, PW7 of Nasanyanga village, PW9 of Nsokolo village, PW 10 and PW11 of Chandaemba village.

PW4 testified that the 1^st Respondent set up camp on the 25^th August, 2011. A day passed and on the third day a cow was slaughtered. The third day fell on the 27^th August, 2011 and that is the day on which the cow was slaughtered. According to PW4, the headman and his people were given nshima. Contrary to PW4’s testimony, PW7 testified that the 1^st Respondent went to Nasayanga in September, towards voting day and invited the people to Mikongolo village on the 25^th August, when a cow would be slaughtered. According to PW7, they went to Mikongolo and were fed village by village on the meat from the cow and the villages in attendance were Nasayanya, Mikongolo, Chisembo, Nchelenje and Sumbi.

To start with, there is a conflict in the evidence of the Petitioner’s witnesses on the date the cow was slaughtered. According to PW4, it was on the third day from 25^th August. That is the 27^th August for it is the third day from the 25^th. How could the 1^st Respondent invite people at Nasayanga to a meal at Mikongolo village on 25^th August when he only set up camp at Mikongolo village on 25^th August at 16:00 hours? Further, it does not make sense that an invitation to a meal could be made in September, for the 25^th August. These disparities lead me to conclude that PW7 was not telling the truth and I discount his testimony as a fabrication.

PW4 did not testify that the people were fed village by village. His testimony was that the headmen and his people ate. It was not brought out whether those who ate were foot soldiers or not, but quite certainly PW4 was not as it was not suggested that he was, in cross-examination.

At Nsokolo village, PW6 who had been absent from the meeting came back when the 1^st Respondent was allegedly inviting people to a meal which was consumed at Siwakwi’s place. This was the camp site. I have doubt about the truthfulness of this witness who lied that he was a headman of Nsokolo village when he was not longer headman. He had a most unimpressive demeanor. The veracity of his testimony pertaining to the attendance of the people from all the villages is questionable.

PW9 testified that a large crowd gathered and the people were told to go and eat at Gavis Siwakwi’s place where food had been prepared and they started giving food per village. In cross-examination, this witness testified that he saw the team that camped at Gavis’ place but did not count them. They were many because Gavis Siwakiwi told him that the food was for the people from the meeting. This witness did not tell the Court the number of people at Nsokolo village and the number from other villages.

According to PW6, the meeting was at Nsokolo school and the food was eaten at Gavis Sikakwi’s place according to PW9. PW6 said the 1^st Respondent talked about the distribution of blankets while PW9 who was at the meeting from start to end said no mention was made of blankets. The conflict in the testimony of these two witnesses concerning the meeting at Nsokolo village leaves doubt in my mind as to what actually took place. The attendance of the villages could have been satisfactorily established by evidence from the village headmen who were allegedly in attendance but these were not called. Further PW9 was a witness who received a bribe on his own confession, was discovered by PF and told to wait. I have to treat his evidence with caution.

PW5 did not indicate the people who ate the food but said they ate after the meeting. He testified that all the people had been called but it is not clear who these people were who had been called, whether they were from Matanga only or other villages as well.

PW10 testified that all the people from the nine villages ate the food. This witness only heard talk about the tournament and the eating of nshima. If he indeed attended the meeting, how possible was it that he only heard two issues which would amount to illegal practices in an election? How was he able to tell that all the people from the nine villages were in attendance? What was the basis of his knowledge? He has not indicated how he verified that all the people from the 9 villages were in attendance and without a basis for his assertion. I am afraid I do not find his claim credible. This witness confirmed that the soccer matches began in June, 2011, and the tournament was played from 29^th September, to 3^rd October. He did not hear what the 1^st Respondent said at this meeting.

PW11 did not tell the Court how many people partook of the food nor did the petitioner state how many people who were not foot soldiers he saw being fed at Matanga. It is noteworthy that no complaint was made to the police concerning the alleged treating. In rebutting this allegation, the 1^st Respondent testified that because the constituency was vast and expense was involved, the constituency executive agreed that they stay for three days in each ward and on the third day, the branch executives should go to the camp site so that they review their position politically, agree on how to carry on after the 1^st Respondent had left and appoint polling and election agents. These meetings were held in the area they had camped on the afternoon. Of the third day and this gave an opportunity to the executive members coming from far places to arrive and they were fed.

I accept that these party meetings were being held on the afternoon of the third day at a camp site as it goes without saying that political parties strategise their campaigns and party functionaries meet for that purpose. I also accept the 1^st Respondents testimony that foot soldiers who came to those meetings were fed. The 1^st Respondent’s testimony concerning the meetings and the feeding of foot soldiers was not discredited in cross-examination. In fact the Petitioner’s witnesses confirmed that these meals were eaten at the camp site PW6, PW9, PW11 testified so. It is quite clear that no meal was consumed at the place where a public meeting was held. If indeed it had been the 1^st Respondent’s intention to fete the electorate, it would have been easy to do it at the very place of meeting. It is noteworthy that the petition did not allege that the beef from the slaughtered cows was cooked and the electorate fed. Rather, the allegation was that the slaughtered cows were distributed to the voters in order to exert undue influence on the voters. This departure of the testimony from the allegations as pleaded raises serious question whether the Court was told the truth or the evidence was an afterthought.

In an election petition, issues of bribery and treating have to be established to a fairly high degree of clarity as was stated by the Supreme Court of Zambia in the case of Webster Chipili and David Nyirenda Appeal No. 35 of 2003. The evidence adduced by the witnesses does not meet the set standard as stated above. I therefore find as a fact that the 1^st Respondent slaughtered cows at Milongolo, Nsokolo, Chandaemba and Matanga villages for his foot soldiers. I further find that non foot soldiers also partook of the cooked meat from the cows with nshima at the 1^st Respondent’s campsites in these villages.

Allegation 5 (ix) was addressed by the Petitioner, PW8 and PW9. The Petitioners testimony was that Mr. Kapembwa Simbao addressed a meeting in Mwiluzi ward at the polling station where he alleged that: the Petitioner was not credible, had stolen while in employment and had gone into politics for personal financial gain and everyone would regret voting for him as he was going to steal resources. The Petitioner informed the Court that he rang the 1^st Respondent and sent an SMS.

There is a dispute about the time those remarks were allegedly made and the date is a material particular. Whereas, the petitioner has merely stated the period in which the allegation was made and the fact of sending an SMS, the 1^st Respondent has testified that the remarks were uttered by the constituency chairman on 22^nd May, 2011 and on 23^rd May, 2011 at 10:06 hours, the Respondent received an SMS form the Petitioner complaining about the comments. The 1^st Respondent went further to testify that he showed the SMS to Mr. Lastone Sichilima and admonished him not to continue along those lines. I find the 1^st Respondents testimony credible on the date the remarks were made as he gave specific dates while the Petitioner on whom the onus lay to prove his allegation to a standard higher than that in ordinary civil proceedings has not produced any proof of the alleged communication.

I therefore find as a fact that derogatory statements were made concerning the Petitioner by the constituency chairman at Senga hill and the Petitioner complained to the 1^st Respondent on 23^rd May 2011 before the campaign period.

The testimony of PW8 was that the 1^st Respondent said “I will surpass Giles Yambayamba because he had a case. He used to be a manager at Parliament. He stole and was fired from work.”

PW8 recited what the 1^st Respondent allegedly said. Apart from the first instance at which the comments were made and I have found that this was in May, the incident at which PW8 alleges the 1^st Respondent spoke those words, was at the meeting a Chomba polling station. It is the Petitioner’s testimony that the 1^st Respondent was candid enough to admit that he received the Petitioner’s message two weeks after the election.

PW 8 testified that Lastone Sichilima made derogatory statements about the Petitioner and the 1^st Respondent did so too. Apart from a mere denial, no rebuttal evidence was called. Lastone Sichilima was specifically mentioned and this person should have been called to rebut PW8’s claims. Although PW8 gave his testimony with emotion at the end of examination in chief, it is my considered view that his testimony can largely be believed. This was a witness who was not discredited in cross-examination, nor was a credible witness called to rebut his testimony. The 1^st Respondent had an obligation to rebut that evidence and this he neglected to did. I therefore find that derogatory remarks were made against the Petitioner at Chomba Polling Station and I find the allegation proved.

The testimony of PW9 was also that the 1^st Respondent uttered derogatory remarks concerning the conduct and character of the Petitioner who it was claimed was a thief and that was why he was fired from Parliament. My view of PW9 is that he was a compromised person who had received a bribe and it is necessary to treat his testimony with caution. Neither the Petition nor the further and better particulars allege that derogatory remarks were made at Nsokolo School. I am not therefore convinced that the 1^st Respondent or his agent spoke those words at Nsokolo.

Allegation number 5(x) was abandoned by the Petitioner as no evidence was brought on the allegation. It is accordingly dismissed.

The evidence on allegation number 5(xi) was that of PW2, PW3, DW1 and DW4. The testimony of PW2 is that he just found Putapo on the ground and they were kicking him. He cannot have witnessed the incident from the start. I accept PW3’s evidence that he was hit into first. Although PW3 made offensive remarks about the MMD, I doubt that he hit DW4 first while straddling the bicycle. I do not believe the 1^st Respondent testimony that he was not offended at the words that PW3 uttered, namely that MMD were dogs and PW3 did not attend meetings of dogs.

The cross-examination of PW3 did not advance the words allegedly uttered by Putapo nor that he was the aggressor, except to suggest that Putapo provoked the 1^st Respondent’s group. I find as a fact that Putapo provoked the 1^st Respondent’s group and Putapo was beaten up by the 1^st Respondent’s group with the 1^st Respondent’s sanction if not participation for it makes no sense that he should walk away just when DW4 advanced towards Putapo. Had he been against the scuffle, he would have stopped DW4 when he saw him advancing.

It was further alleged that the 1^st Respondent showed war movies at Mikongolo village and evidence on this issue came from PW4. PW5 testified on this issue concerning Matanga village. The 1^st Respondent, in rebutting this evidence testified that he showed movies to his campaign team for entertainment at night for he did not allow the consumption of alcohol in his camp.

I find as a fact that movies were shown at the camp of the 1^st Respondent at Mikongolo village and a movie by Swarznegar was shown as well as another one depicting famine, although its title has not been stated. The movies were shown at the camp site in the evening and not at campaign meetings. PW4 testified that the 1^st Respondent said; “Have you seen how people are dying? This is the way you will be running,” when the film depicting famine was being shown, the 1^st Respondent allegedly said that if they did not vote for them, they would suffer the way they were doing in the movies.

PW5 of Matanga village testified that they watched videos of war and famine and in cross-examination testified that the people who were watching the videos were those near the camp. PW5’s testimony is consistent with that of the 1^st Respondent as it is evident that the movies were not for the whole village but for entertainment of the campaign team. No evidence has been led as to how many people at those villages watched the movies and I find as a fact that the movies were shown for entertainment as they were shown at the 1^st Respondent’s camp. I also find that some people other than the campaign team watched these movies.

PW4 testified that the 1^st Respondent told them that they would run and suffer from famine if they did not vote for him. I find these words unconvincing because the 1^st Respondent should have told the people why there would be famine and war had he surely uttered those words. The constituency in issue may be rural but I do not think that the people there are simple minded and not astute and would have fallen for the three sentences allegedly uttered by the 1^st Respondent without any explanation why there would be war and famine.

I further find it surprising that at a meeting called for the whole village as PW 5 claims, the 1^st Respondent would tell the people that if they did not vote for him they would be running as they had seen in the movies when they had not all seen the movies. It stands to reason that those utterances would logically follow a showing of famine or war movies to the whole village and not to those near the camp of unknown number. PW5’s testimony makes it clear that not the whole village at Matanga watched the movies. I find no merit in this allegation and it is dismissed as I am not convinced that the 1^st Respondent uttered those words.

On allegation number 5 (xiii) the petitioner testified that the former President Mr. Rupiah Banda promised tarmac from Mbala to Nakonde to be put within a few days and earthmoving machinery was mobilized along the road. The 1^st Respondents evidence was that the President was merely confirming what was happening. The Petitioner amended the place to Chela while the 1^st Respondent claimed that the former President went to Senga hill.

Satisfactory evidence would have been the recording of the President’s speech as that was the best evidence that could have been laid before the Court. That evidence would have established what the former President actually said. I am not satisfied that those words were uttered as alleged by the petitioner and this allegation stands unproven and is dismissed.

It was alleged that the 1^st Respondent distributed blankets to headmen during the campaign period and the evidence on this issue came from PW2 and PW6 while rebuttal evidence came from the 1^st Respondent and DW4. PW2’s testimony was that the blankets were received during the campaign period and Sichinsambwe gave him his. PW6 also testified that the blankets were distributed during the campaign period. This witness had an angry demeanor and gave evidence in a quarrelsome tone and did not altogether impress me as a witness. DW4 was equally evasive and most unimpressive as well.

That leaves only the evidence of PW2 and that of the 1^st Respondent who testified that the blankets were distributed in May. I have looked at the blankets produced in evidence and they look old, as if they have seen a few washes. I expected a blanket given out in September to be in better condition than those produced in evidence. I am persuaded to accept the 1^st Respondent’s testimony that they were distributed in May because the appearance of the blankets produced in evidence attests to longer usage than suggested.

As regards the tournament it was confirmed that these were organized even in years before the elections and prizes donated by the 1^st Respondent. I am not therefore convinced that much was made of an event that used to take place in past years. Further, PW10 appears only to have heard the words pertaining to football and eating. If he had really attended the meeting, he would surely have heard more, than just on those two items. The match was played on 28^th September, after the elections had taken place. The 1^st Respondents testimony rings true on this issue and I accept that the trophy was not announced to voters but was a programme he had embarked on even before.

I now come to address the donation of building materials. PW7 confirmed that the 1^st Respondent called a meeting at Chozi which was attended by the PTA of all the schools in July, 2011 and informed the meeting that K 10, 000, 000 had been prepared for each school for maintenance. This was before the campaign period and is consistent with the 1^st Respondent’s testimony that each school was given K 10, 000, 000 and they had to decide what was to be bought. PW7 was untruthful concerning the meal at Mikongolo and confused the dates. He as well conceded that the building materials were not delivered by Mr. Simbao. The 1^st Respondent’s testimony that CDF funds were handled by the council was not refuted. I have grave doubt about the testimony of PW7. The result is that this allegation has not been proved and is accordingly dismissed.

No satisfactory proof was laid before the Court that Twichefye women’s club in Matanga received fertilizer promised by the 1^st Respondent. PW 5 was not a member of this club and satisfactory evidence could have come from the club members themselves. It is a known fact that subsidized fertilizer is distributed to cooperatives and clubs through designated agents. I am not convinced that the 1^st Respondent delivered the fertilizer. The roofing sheets were not delivered by the 1^st Respondent but by someone else and agency has not been established. I prefer the 1^st Respondent testimony that each school was allocated. K 10, 000, 000 through the Constituency Development fund and that this fund was administered by the council. The 1^st Respondent was no longer part of the committee at the time as parliament had been dissolved. The 1^st Respondent’s testimony on the administration of CDF was not refuted.

I will now consider the submissions made by the Petitioner in urging the Court to nullify the election of the 1^st Respondent on the ground that the illegal practices committed by the 1^st Respondent and or his agents materially so affected the election result that the same ought to be nullified.

It has been submitted by learned counsel for the Petitioner that the 1^st Respondent made a false statement about the personal character and conduct of the Petitioner and the statements were repeated at other meetings and that the utterances prevented the majority of voters from electing a candidate of their choice contrary to section 83 (2) of the Electoral Act Number 12 of 2006.

The Petitioner was named a thief at Chomba polling station at a meeting on the 13^th September, 2011. The 1^st Respondent testified that he failed at that polling station. The import of his failure at that polling station is that the majority of the voters did not vote for him as they voted for other candidates. That being the case the argument that the majority of voters were prevented from electing a candidate of their choice is unsustainable. The same applies to the alleged intimidation as regards delivery of subsidized agricultural inputs and payment for maize delivered to FRA. The voters at Chomba polling station were not intimidated or unduly influenced into voting for the 1^st Respondent as he failed at that polling station.

It has further been submitted that the District Commissioner for Mbala summoned 32 headmen to a meeting and informed them that the Petitioner and PF Presidential candidates were pro homosexual. Section 93 (2) (a) of the Electoral Act No. 12 of 2006 stipulates:

“The election of a candidate as a member of 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 of 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….”

Once it is established that the majority of voters were or may have been prevented from electing a candidate of their choice due to a corrupt practice, illegal practice or misconduct, it matters not that the winning candidate was himself not involved in the commission of the corrupt practice, illegal practice or misconduct.

In the case of Mlewa Vs Wightman (1995/77) Z.R. 171, the Supreme Court of Zambia held that under paragraph 18 (2) a (which is the same word for word as section 93 2 (a) of the current Electoral Act) it did not matter who the wrong doer was and the scheme of the law was designed to protect the electorate.

The headmen were informed that the PF candidates were pro homosexual. Apart from PW2, no evidence has been led that other headmen spoke to the electorate about what they had heard. No witnesses have come forward to testify that they were warned by their headmen not to vote for the PF as they were pro-homosexual and they were thereby influenced. The headmen have also not testified what use they made of the information they received. The standard of proof is beyond probability and there ought to be a convincing degree of clarity that the information was passed on to the electorate. In the absence of such evidence it cannot be inferred that the majority of voters were or may have been prevented from electing a candidate of their choice. There is insufficient evidence on this issue.

It was submitted that the 1^st Respondent was guilty of treating as he slaughtered six cows in the six of the nine wards in Senga Hill Constituency to fete the electorate. My finding on this issue as already indicated is that the food was meant for the foot soldiers. Even assuming for argument's sake that there was treating, the number of registered voters in these wards in which the food was consumed was not indicated, nor the number of registered voters in the three in which no food was consumed. The number of registered voters in the wards in which a cow was slaughtered but no evidence was adduced that non foot soldiers partook of the food is unknown. The voter turnout and voting pattern was not disclosed to the Court. The total number of registered voters in the Constituency was not indicated.

Further, the Court was not informed which villages were in which ward. The 1^st Respondent indicated that the executive members at a branch could go up to 31. He stated that Chinyika ward had 42 branches. A gathering of the branch members could have about 1, 200 members, it can be inferred. That is quite a large number of foot soldiers. The number of non foot soldiers that consumed the meal is unknown and it is not possible on the state of the evidence to conclude that the majority of the voters were prevented from electing a candidate of their own choice. Even had it been found that there was treating to the electorate the argument advanced would be unsustainable for lack of cogency. However, the allegation of treating as earlier stated was dismissed for lack of sufficient proof.

It was submitted that the 1^st Respondent was guilty of bribery as he allegedly used government branded mealie meal to feed the people as well as wide spread use of Government resources being mealie meal, cooking oil, and cow peas and that at Nasayanga building materials were delivered as well as mealie meal and cooking oil and the same was used to feed the electorate at Nasanyanga. Huge amounts of money were promised to community schools and football clubs and PW4 was given K10,000. It was submitted that the 1^st Respondent did commit acts of bribery and gave no evidence to prove that he acted within the confines of section 79 (2).

Contrary to Learned Counsel’s submission, there is no evidence that the 1^st Respondent used government branded mealie meal collected from Kasama to feed the people. The campaign period started in August and ended on 18^th September. The mealie meal picked up on 14^th September, only 4 days before the close of campaigns in Kasama cannot have been used to feed the electorate. Infact the evidence of the witnesses is that food was eaten in August and on 10^th September. Whatever was done with the mealie meal collected on 14^th September, 2011, it cannot be concluded that it was used to feed the electorate. Whether the mealie meal collected from a private company still belonged to government was not established. There is no evidence that cow peas were used by the 1^st Respondent and in fact PW7 and PW4 both testified that those items were still there. There is no testimony that food was cooked at Nasayanga as PW7 claimed that the 1^st Respondent invited them to a meal on 25^th August, 2011 at Mikongolo.

I have already found that the building materials were those connected to the CDF fund and the 1^st Respondent was not responsible for the same. The prize money given to football clubs cannot amount to bribery as this was a programme that had been in existence before. The K 10, 000 given to PW4 was not a bribe. I therefore do not agree with Learned Counsel for the Petitioner that the 1^st Respondent was guilty of bribery as the evidence did not so establish.

The only instance of bribery I found was that of K 10, 000 received by PW9. It has not been established however that Vincent Zombe gave the K 10, 000 at the 1^st Respondents instigation. This one corrupt practice cannot be said to have so materially affected the outcome of the election that the same should be nullified.

It has been submitted that the beating of PW3, Putapo instilled fear in the electorate. That cannot be so as this was an isolated incident. This was a beating as a result of provocation. In fact PW3 did not testify that he was beaten so that he could vote for the 1^st Respondent, or refrain from voting for the Petitioner.

I have discounted the evidence of PW4 and PW5 pertaining to this allegation of violence. PW7 lied on a material particular and did not inspire me as a witness. I therefore do not agree with Learned Counsel’s submission that the 1^st Respondent exerted undue influence on the electorate as alleged.

Even assuming that he had uttered those words and they amounted to undue influence, it cannot be held that the undue influence so materially affected the election result that it ought to be nullified. The undisclosed number of the people who watched the movies at Nsokolo and Matanga villages as well as the population at Nasayanga village cannot constitute the majority of voters in a constituency of 9 wards so that the people affected would be very few and that alone cannot lead to the nullification of the election.

Although not referred to in the submission, the offer to transport the trusses to Chomba Polling Station was not intended to benefit individuals but was for the common good. This was a philanthropic gesture and cannot amount to malpractice as was stated by the Supreme Court in the case of Lewanika and Others Vs Chiluba 1998 ZR 79.

In an election petition, the allegations made against a Respondent require to be proved to a high degree of convincing clarity. This entails that the evidence adduced must be cogent and beyond probability. The petitioner has failed to prove that the illegal practice committed by the 1^st Respondent and or his agents so materially affected the election result that the same ought to be nullified.

No cogent evidence was adduced that the proved allegation affected the election result by preventing the majority of the voters in Senga Hill Constituency from electing a candidate whom they preferred. The pertinent consideration would be the effect of the illegal practice on the electorate. Where false statements are made at one polling station and the petitioned candidate loses at that polling station, that is clear evidence that in fact the false statement had no favourable effect for the candidate whose election is petitioned at that polling station where the false statement was made. It cannot then be argued that such a statement has materially affected the election results and the electorate prevented from electing a candidate of their choice. The petitioning candidate would not have been prejudiced by the statement.

The false statement that the PF were pro homosexual was made to 32 headmen. These are very few individuals in a vast constituency and the effect of the false statement on the electorate would be negligible as the constituency had thousands of voters. In the absence of evidence of dissemination of the false statement to the members of their villages, it is incompetent to say that the majority of the voters were prevented from electing a candidate of their choice and that the illegal practice materially affected the election result. The margin by which the election was won by the 1^st Respondent is so wide that cogent evidence was required to show how the majority were prevented from electing a candidate of their choice.

All in all, the standard of proof has not been satisfied by the petitioner as it has not been proved that the majority of voters were or may have been prevented from electing a candidate of their choice as a result of the illegal practices.

No allegations have been made against the 2^nd Respondent and no evidence adduced to prove any wrong doing against the 2^nd Respondent. Having not been satisfied that the illegal practices at Senga Hill constituency so materially affected the election result, I dismiss this petition with costs and determine that the 1^st Respondent herein Kapembwa Simbao was duly elected and the parliamentary election for the Senga Hill Constituency held on 20^th September, 2011 is valid pursuant to section 104 (1) and (2) of the Electoral Act No. 12 of 2006. Leave to appeal to the Supreme Court is granted.

Delivered the 20^th day of March, 2012 at Lusaka in open court.

F.M CHISANGA

JUDGE

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Yambayamba v Simbao and Electoral Commission of Zambia (2011/HP/EP/23) [2012] ZMHC 85 (19 March 2013);

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