FORMER Lusaka Province minister Bowman Lusambo has urged the Constitutional Court to set aside the Ndola High Court’s decision to nullify his Kabushi parliamentary seat.
Lusambo has asked the court to instead uphold his election as Kabushi PF member of parliament as declared by the Electoral Commission of Zambia ( ECZ).
But UPND losing candidate Bernard Kanengo has insisted that the High Court was on firm ground when it nullified Lusambo’s seat.
Lusaka High Court Judge Edward Musona, sitting in Ndola, nullified Lusambo’s election as Kabushi MP in November last year.
But being dissatisfied with the judgement, Lusambo appealed the decision to the Constitutional Court and cited Kanengo and the Electoral Commission of Zambia as first and second respondents, respectively.
When the matter came up for hearing of the appeal before Constitutional Court judges, Hildah Chibomba, Mungeni Mulenga, Prof Margaret Munalula, Palan Mulonda and Judy Mulongoti, Thursday, Lusambo through his lawyers Makebi Zulu and Jonas Zimba argued that judge Musona applied a wrong standard in determining the election petition before him.
Zimba said it was trite law that the standard to be applied in an election petition was higher than that in a civil matter.
He submitted that the standard of proof used by the High Court was the one which was applicable in an ordinary civil matter and not in an election petition which requires a high standard of proof.
Zimba argued that his client’s appeal should be allowed and the High Court’s decision should be reversed in his (Lusambo’s) favour.
And in his submission, Zulu said the only ground that the trial judge said was proved to a degree of convincing clarity was that of violence, but however argued that the court misapplied itself by not concluding that Lusambo participated directly in the violence, but that he was responsible for the violence.
He said the trial court misapplied itself when it held that by not distancing himself from the allegations of violence, it was a sign that Lusambo was aware of the same.
Zulu argued that Lusambo was supposed to have been found that he directly participated in the violence or his agents, but that was not the case.
He said the question which the court was supposed to answer was whether the violence which was recorded in four wards was widespread and whether the same affected the majority vote.
“It is thus our argument, our prayer that this judgement should be set aside and the law as cited in the case of Nkandu Luo Vs Doreen Sefuke Mwamba should be emphasised. As a matter of fact, we have been guided in the earlier case that the judge in this matter, being the judge that had handled the earlier Nkandu Luo case should have been aware,” he said.
But Kanengo through his lawyer, urged the court to dismiss Lusambo’s election appeal saying Justice Musona could not be faulted for nullifying the seat because there was evidence of electoral malpractices.
He submitted that the fact that violence was recorded in four wards and Lusambo was present in two of the wards, he was aware of the violence and he endorsed it.
He argued that the submission by Lusambo’s lawyers that the judge in the lower court did not apply the high standard in determining the petition was incorrect and was not supported by the record.
“It is, therefore, our submission that the judge in the court below could not be faulted on the standard that he applied in coming up with the judgement which nullified the election of the appellant,” he stated.
Justice Chibomba reserved judgement to May 26, 2022.