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Supreme Court reserves ruling on Sata’s election petition case

Supreme Court reserves ruling on Sata’s election petition case
Written by Mwala Kalaluka
Wednesday, February 18, 2009 7:53:39 PM

THE Supreme Court has reserved ruling on an application by Patriotic Front (PF) leader Michael Sata's lawyers seeking a vote recount of ballot papers from the October 30, 2008 presidential election. And Sata has said the decision by acting Inspector General of Police Francis Kabonde to deploy police officers during hearing of the preliminaries of the presidential election petition is an intimidation of the court officers.

Deputy chief justice Ireen Mambilima - sitting with other Supreme Court justices namely; Judges Marvin Mwanamwambwa, Sandson Silomba, Peter Chitengi and Dennis Chirwa - set March 11 for ruling on the matter after listening to arguments from both parties.

This is in a matter where Sata has sued President Rupiah Banda, as the first respondent, the Electoral Commission of Zambia (ECZ), as the second respondent and the Attorney General, as the third respondent.

Sata's lawyer, Bonaventure Mutale submitted that there had been a lot of uncertainty from President Banda's lawyers over the application seeking a recount of all manner of ballot papers relating to last year's presidential election during the court's previous sittings.

He said the uncertainty from the defence stemmed from whether the court had jurisdiction to entertain an application of that nature.

Mutale said he would have wanted to walk the court through a number of High Court decisions that had dealt with the issue of recount in previous parliamentary elections.

However, he said the case would be spared such an exercise because President Banda's lawyers had already acknowledged in their affidavits of opposition to Sata's application, that the court does have jurisdiction to entertain such an application.

Mutale quoted from one of President Banda's lawyers, Christopher Mundia's affidavit, where he said an application for a vote recount could be entertained provided there was sufficient evidence to support the application.

Mutale submitted that unlike the presidential petition of Anderson Mazoka and others against Levy Mwanawasa and others of 2002, the application for a recount that was before the court had sufficient evidence backing it.

"Now the question that this court has to determine is whether or not the petitioner has adduced any evidence in support of his application," he said. "I will attempt to highlight some of the areas that [are] important...the petitioners have three categories of complaints arising out of the October 30 presidential election."

Mutale said the first set of violations relates to the use of persons that were not authorised to supervise elections and consequently had no legal mandate to play the role.

He named the constituencies where this allegedly took place as Chisamba, Mwembeshi, Muchinga, Serenje, Milenge, Nakonde, Mbala and Senga Hill.

Mutale said the names of these electoral officers did not appear in the Gazette Notice number 455 of 2008, relating to the appointment of returning officers in the said presidential election.

"That gazette notice will confirm that the returning officers who presided over the named constituencies were not duly gazetted and therefore not appointed to perform those functions," he said.

Mutale said President Banda's lawyers acknowledged the above error in their affidavit opposing the application but that their responses to the issue were startling.

He said President Banda's lawyers said in the case of Chisamba, the returning officer died prior to the election and that another was duly gazetted to replace him.

But Mutale said they had looked at all the gazette notices prior and up to October 30, 2008 but that they had not come across any name that was gazetted to replace the deceased returning officer.

"The only obvious inference to be drawn is that the Chisamba election was conducted by an unauthorised person," he said. "As regards Muchinga and Serenje in Serenje district and also Senga Hill and Mbala, the respondents have averred a startling defence by stating that the names were merely transposed. So that again is a demonstration that a serious error was made...it totally invalidates what was done by these persons."

Mutale said in Mwembeshi Constituency, the name that was gazetted was a James M Siame but the documents from the ECZ forms indicate that James Malupande performed the functions.

He said President Banda's lawyers argue that this is one and the same person.

Mutale said the second category of complaints relates to the averment by President Banda's lawyers that some polling stations in Sikongo and Sinjembela constituencies voted on October 31 and November 1, 2008, which were not prescribed polling days for the presidential election and contrary to the electoral Act.

He said according to a statement by ECZ chairperson Judge Florence Mumba on November 2, 2008, the respondents acknowledged that voting was indeed extended in four polling stations in Sikongo and one polling station in Sinjembela due to a breakdown of three vehicles.

Mutale said looking at the statement by Justice Mumba, it was clear that there was no question of extension and the argument by the respondents that they acted within the law could not hold water.

In the third category of complaints, Mutale said these related to the manner of processing of the documents during the presidential election, which he said had notable discrepancies, as compared to the affidavit opposing the application filed by the ECZ.

He said the discrepancies could be noted in the variances in the tally of polling results when read in figures and in words.

Mutale cited the case of Nkana constituency where Sata's tally of votes was recorded as 12,323 in figures and in words it was reading 12,303, saying the discrepancies brought into doubt the authenticity of the results.

"What is important to note is that the first respondent won this election by a minute margin; a very minor margin of about 35,000 votes," he said. "Our contention in that respect is that in the event of a recount being entertained, there is a likelihood of that minor margin being totally obliterated."

He urged the court to grant the application in the interest of justice and to safeguard a credible election process.

Sata's lawyer, Mumba Kapumpa, said the postponement of elections in the four polling stations in Sikongo and Sinjembela should have been gazetted and widely publicized in the media before they were sanctioned.

But Solicitor General Dominic Sichinga, who led the arguments for President Banda said the application by Sata should be dismissed with costs because it was misplaced.

He said all the issues raised by Sata's advocates had been adequately explained in the affidavit from the ECZ.

Sichinga said there was no sufficient evidence before the court to grant the application in favour of Sata's lawyers.

He said apart from the lack of evidence to justify the granting of the application for a recount of votes, there were no witnesses that had adduced evidence before the court.

He said the presidential petition case involving Anderson Mazoka and others against Levy Mwanawasa and others adequately dealt with the issue of recounts.

"The third respondent [Brigadier General Godfrey Miyanda] had like in this instance before you applied by way of summons for an order of vote recount of the presidential election of December 27, 2001," Sichinga said.

He said the Supreme Court's ruling on the matter was there.

He also said the application should not be allowed because Sata's lawyers tabulated only about 24 constituencies out of the 150 constituencies and a few polling stations, as places where a vote recount was required.

Another of President Banda's lawyers Christopher Mundia received giggles and mild heckles from some PF cadres sitting in the court's pews when he wondered why the PF candidate was the only one who had issues with the electoral figures when there were other presidential candidates.

"This application is not only misconceived but frivolous," said Mundia.

Professor Patrick Mvunga said the complaints by Sata's lawyers show that there were controversies in the election that would only be resolved by a trial.

He said the reliance by Sata's lawyers on information gathered before the trial was no more than hearsay, which could not justify a recount.

Prof Mvunga also wondered why Sata's lawyers wanted a recount of votes they had rendered invalid in their submissions.

In response, Kapumpa said Mundia's arguments that only a timetable should be gazetted in an event of a postponement of an election, were totally misplaced.

Sata's lawyer, Wynter Kabimba, said the matter at hand was a presidential election petition, which was governed by article 34 of the Constitution, as read together with article 41 (2) and further read with section 21 (3) of the electoral Act of 2006.

He said the law was not restrictive in this case and that it cast a very wide net as to the jurisdiction of the court in a presidential election.

On the argument by Sichinga that all the issues raised by Sata's lawyers had been dealt with, Kabimba said it was up to the court to determine the way forward.

He said the petition that was before the court focuses more on the administration of elections than the margins between the respondent and the petitioner.

He said in the interest of justice it would be important for the court to grant the application so that the administration of elections by the ECZ is brought under scrutiny and a firm stance is taken in that regard.

Kabimba said failure to grant the application for a vote recount would render the presidential petition case an academic exercise.

And later Sata, who advised his cadres not to fight with the police since they were also suffering like any ordinary Zambian, said Kabonde was hell-bent on protecting his contract.

He said there was no law that bars people from partaking in proceedings in an open court.

"They are just trying to send a message to the judges," said Sata, as he urged his cadres to peacefully disperse from court premises and return on March 11.

Labels: ELECTIONS, SATA, SUPREME COURT

posted by MrK @ 7:53 PM