The Constitutional Court has upheld Lusaka Central PF member of parliament Margaret Mwanakatwe’s election and declared that she was duly-elected.
Justice Annie Sitali set aside the ruling of the High Court, which nullified Mwanakatwe’s seat on account of electoral malpractice, saying the first respondent, UPND candidate Charlotte Scott, had failed to provide supporting evidence linking the appellant to allegations of bribery, violence, corruption, racial discrimination, among others, which could have affected the outcome of the elections.
Judge Sitali said an election could only be nullified when evidence was provided to show that a candidate committed an electoral offence or that an offence was committed with their knowledge, consent or approval and it prevented the electorate from choosing a candidate of their choice.
In this matter, the appellant, Mwanakatwe, was appealing against the decision of the High Court to nullify her election as Lusaka Central PF member of parliament.
The appellant and the first respondent Charlotte Scott contested in the Lusaka Central seat during the 2016 parliamentary election.
When Mwanakatwe was declared duly-elected, Scott petitioned the election, alleging that Mwanakatwe used government resources during her campaign, had engaged in acts of bribery, used racial slurs, implying that Scott was not Zambian, and that her agents used violence against Scott and her supporters at town centre.
However, when Mwanakatwe’s seat was nullified by the lower court, she appealed to the Constitutional Court and advanced 11 grounds for her appeal.
Passing judgement yesterday in a fully-packed court room, judge Sitali ruled that Mwanakatwe had succeeded in 10 of the 11 grounds raised.
She said it was incumbent upon the first respondent, Scott, to prove her allegations against Mwanakatwe with evidence and to demonstrate that any electoral offences proven could have been committed by Mwanakatwe or by her election agents, were widespread and voters may have been prevented from electing their preferred candidate.
Judge Sitali dismissed ground 10 where Mwanakatwe was challenging the lower court’s reliance on the recording of the ‘Race to Manda Hill’ and a Facebook posting attributed to her, for lack of merit.
She ruled that Mwanakatwe cannot, on appeal, challenge the lower court’s reliance on that evidence for not being properly authenticated when she had consented to the introduction of the evidence on the lower court’s record.
Judge Sitali, however, upheld ground one of appeal dealing with the conduct of the Zambia Police, saying the trial judge misinterpreted the law when he held that all that was required for an election to be nullified was evidence of non-compliance with the law in the conduct of elections by the Zambia Police Service.
She said the role of Zambia Police in the electoral process was restricted to keeping law and order, adding that the trial judge misdirected himself when he said the police breached electoral laws because the mandate to conduct elections was exclusively vested in ECZ.
“We have examined the first respondent’s evidence before the lower court and observed that she did not adduce any evidence to prove the result of the election was affected by the refusal by the police to permit her to carry out door-to-door campaigns in Northmead and Rhodes Park. Ground one, therefore, succeeds,” Judge Sitali said.
And on the lower court’s findings that the drilling of the boreholes in Bauleni was a corrupt act committed by Mwanakatwe, which in-turn prevented voters from voting for a candidate of their choice, Judge Sitali said after examining the evidence on record, she observed that the drilling of boreholes was by the Muslim Society to improve the water and sanitation for the benefit of the people and was, therefore, not a corrupt act as found by the lower court.
She, therefore, reversed the trial judge’s finding that the allegation was proved.
And on the allegations of bribery regarding the purchase of chitenge materials, Judge Sitali said there was no evidence to support the findings that the purchase of chitenge materials may have influenced the voters from voting for their preferred candidate.
“In the absence of supporting evidence we cannot support the lower court’s findings,” she added.
Meanwhile, Judge Sitali found ground eight in relation to the appellant uttering racial remarks against the first respondent meritorious, saying the allegation was not supported by evidence on record.
She further ruled that the first respondent did not adduce any evidence to prove that the appellant used government resources in her campaigns and the allegation was, therefore, not proved.
Judge Sitali added that the finding by the lower court that the appellant used the salary she earned from her position as a Cabinet minister in her campaigns was not supported by any evidence.
She, therefore, set aside the lower court’s decision.
“As the appellant has succeeded in 10 of the 11 grounds raised, the appeal succeeds. We set aside the lower court’s decision to nullify the election and declare that the appellant was duly elected as MP for Lusaka Central,” Judge Sitali ruled.
And reacting to the judgement, Mwanakatwe, who is also Minister of Finance, expressed delight, saying it had been a long journey.
She argued that the judgement had proved that the PF were the rightful owners of the Lusaka Central seat.
“Awesome! It’s been a long journey! We are PF, the rightful owners of Lusaka Central and today has proven that. We will go back and continue working for the people of Lusaka Central. Today is a land mark decision,” a relieved-looking Mwanakatwe said.
“Yes it’s taken long, but it was important to go through the process and be able to prove to the people of Lusaka Central, people of Zambia, that when somebody wins an election rightfully, they should be allowed to do their work freely. It’s a great day today.”
And PF secretary general Davies Mwila said the party was “very excited” with the higher court’s decision.
“We have waited for this appeal for two years and some months. As a party, we are very excited because the higher court has reversed the decision of the lower court. Justice has prevailed so we want our Minister to now continue with her work of rebuilding the economy,” said Mwila, who also spoke to journalists after the ruling.
Mwanakatwe was accompanied by several Cabinet ministers and PF officials, who showed up to show solidarity.