PRESIDENTIAL ELECTION PETITION JUDGMENT IN FULL
Cont from page 2
The Respondents called RW9, Saviour Makumbi Bweembelo, a Teacher and Presiding Officer at Mwapona Polling Station. He testified that polls were opened at 06:00 hours and according to him voting in the morning went on well.
He testified that at 15:00 hours, there was some commotion as voters wanted to rush into the Polling Station to go and vote; that it became difficult to control the queue. He accordingly instructed the uniforrned police officers to be vigilant.
Around 16:00 hours, violence increased and the Polling Station became unmanageable. RW9 stated that he had to temporarily close the Station and went outside to assure the voters that everyone would vote. He stated that even with this assurance some voters did not believe him.
Around 16:25 hours, RW9 sent for reinforcement, which arrived by 16:40 hours. At 16:45 hours, the situation normalized and RW9 reopened the Station. Since there was very little time before the close of the poll, RW9 decided to put a policeman behind the last voter in the queue.
He testified further that it was not easy to control the queue; that at no time did the line shrink and in the circumstances the voting continued until 22:40 hours.
The 1st and the 2nd Petitioners have, in their submission, repeated the evidence in chief of PW27, PW29 and RW9. There is no submission from the 1st Respondent.
The learned Attorney-General also recited the evidence in chief of PW27, PW29 and RW9.
It is clear that there was some commotion at this Polling Station around 1640 hours which forced the Presiding Officer to temporarily close the Station whilst awaiting reinforcement of the Police.
We are satisfied that the Polling Station only re-opened around 16:50 hours and voting continued. Around 17:40 hours the Presiding Officer announced the closure of the Polling Station and voting continued after the Police Officer was placed at the end of the queue.
Voting continued but the Presiding Officer observed that the queue was not moving and there was another commotion but voting continued and polling finally finished at about 22:40 hours. On the evidence, we are satisfied that there was no voter turned away after 17:00 hours as the Polling Station was still open.
(iii) Moomba Constituency
Under Moomba Constituency there are two Polling Stations involved. The first one is Chona Polling Station in which only one witness, PW 17, Moroson Andrew Mazuba, a farmer, was called to testify for the Petitioners.
He testisfied that during the 2001 Elections, he was a registered voter at Monze Town A Polling Station where he voted. After voting, he was sent by UPND Chairman to go to Chona Polling Station and observe the voting there.
PWl7 arrived at Chona Polling Station at 09:00 hours and found a very long queue of voters. He sat outside the Polling Station and around 17:00 hours, he noticed that the Polling Station had closed.
He told the Court that when the Polling Station closed, he and the people who did not vote complained to the Election Officers who did not respond in any way He further told the Court that there were about 200 people who were not allowed to vote and among these were Monica Milimo and Alfred Chikuni.
For the Respondents, the response came from RW2 1, Robbarn Mwenya, a District Assistant Cooperative Officer and Presiding Officer for Chona Polling Station, which had 751 registered voters. He testified that on 27th December, 2001, he opened the Polling Station at 06:00 hours.
He said that voting in the morning was alright although it was on a low note. In the afternoon, they were a little busier and at 17:00 hours he went out of the Polling Station and saw a long queue of voters. He and his assistant, Mr. Maambo, counted the people on the line and found that there were 119 people on the line.
He then asked a police officer to position himself at the end of the queue. His evidence was that voting went on up to 21:00 hours.
He further testified that he did not know PWl7 and that if PW 17 said that at 17:00 hours there were more than 200 people on the line and that he (RW2l) had arbitrarily cut off voters, he would be telling lies.
The second Polling Station is Ntambo Polling Station. On this Polling Station, the Petitioners called three witnesses, that is, PWl9, Edward Muleya., a peasant farmer, registered voter and polling agent for UPND; PW2O, Patrick Hadenta, also a peasant farmer and registered voter and PW21, Valentine Munamoomba, also a peasant farmer and registered voter.
PW19 testified that on the 27th December 2001 he left his house at 05:00 hours to go and vote at Ntambo Polling Station. Voting started at 06:00 hours and it went on without any problem. When the voting started at 06:00 hours PW19 cast his vote and sat down to observe what was happening. Voting went on well until 17:00 hours when he saw a police officer go out of the Polling Station and cut off all those voters who were out of the verandah. As a result of this, there was a disturbance.
PW19 then asked the Presiding Officer whether it was the law to cut off voters who were already on the line. He was told that that was the law as they were voting in three elections.
Amongst the people that were cut off, he recognized Patrick Hadenta, PW2O and Valentine Munamoomba, PW21. He then wrote down the names of those who were cut off. When he tried to produce the list of names of those who were cut off, an objection was raised as the list was not original The Petitioners did not pursue the matter any further. In cross-examination he was asked if he knew how many registered voters there were at Ntambo and he said there were 857 registered voters out of which 715 voted.
PW2O testified that he went to Ntambo Polling Station at 11:00 hours and found a long queue, which he joined. He was not able to vote, as he was on the line, he was told the time was up. As a result of this, he and others who were cut off complained but nothing was done. He confirmed that he saw PW19 at the Polling Station and that he gave his name to him as one of those who did not vote. PW21’s evidence is similar to that of PW2O except that he arrived at the Polling Station at about 14:00 hours.
In rebuttal, the Respondents called RW13, Christine Mwanamusiya Mutinta Mambo, a School Teacher at Hamangaba Middle Basic School, who testified that in the 2001 Elections she was Presiding Officer at Ntambo Polling Station in Moomba Constituency. She told the Court that the Polling Station had 857 registered voters. She further testified that on voting day she opened Station at 06:00 hours.
There were no problems in the morning except for the queue, which was long. Between 14:00 and 15:00 hours less people started coming in and they were able to rest a bit. However, the line of voters increased after 16:00 hours. Just before 17:00 hours, she went out of the Polling Station and invited all, including those who were breast-feeding, to come on the line so that they could complete voting.
When everybody was on the line, she instructed a police officer to stand behind the queue and voting went on up to 18:30 hours. During the election, she had agents from various political parties and FODEP monitors. She said that she knew PW19 as one of those early voters. She knew him as a fellow teacher before he retired to join politics. She denied that a policeman cut off voters.
She categorically stated that everyone on the line voted. She denied knowing PWs 20 and 21. She also testified that she never received complaints from anyone in the manner she conducted the elections. In cross-examination, she confirmed that PW19, after voting, remained at the Station until the close of the polls, as he was an election agent.
We have perused through the submissions of the 1st and the 2nd Petitioners and our view is that they are just a summary of the evidence of
PWs17, 19, 20 and 21.
We also note that the 1st Respondent made no submissions. The learned Attorney-General summarized the evidence of PWs 17, 19, 20 and 21, as well as the evidence of RWl3 and RW21.
In short, the evidence of RW 2 1 rebuts the evidence of PW 17 under Chona Polling Station while the evidence of RW 13 is a rebuttal of the evidence of PWs 19, 20 and 21 under Ntambo Polling Station.
He submitted that according to the respective evidence of RW2 1 and RW1 3 there was no cutting off of voters and, therefore, no one voter was disenfranchised. He pointed out that the list of voters, as compiled by PW19, was never brought to the attention of RW13.
They urged the Court to believe the evidence of RW21 and RW13 respectively for Chona and Ntambo Polling Stations.
We have considered the evidence and submissions of the 1st and the 2nd Petitioners, as well as, those of the 2nd and the 3rd Respondents and we find that there were no voters who were prevented from voting at 17:00 hours at both Chona and Ntambo Polling Stations. In the circumstances, the allegation is not proved in relation to Moomba Constituency.
(iv) Pemba Constituency.
Under this Constituency, there are three Polling Stations, namely Siazwela, Kasonde and Mudukula. Under Siazwela, the Petitioners called three witnesses, namely PW26, Million Siakamba, a farmer; PW32, Ammos Siamaunga, a farmer and PW33, Thabita Shawa, housewife.
Under Kasonde Polling Station the Petitioners called PW28, Walter Muntanga, a farmer; PW3O, Clifford Chigwayi, a f armer and PW31, Jacob Siamuzinyona, a farmer. And for Mudukula Polling Station they called PW34, George Longwani, a farmer.
(a) Siazwela Polling Station
PW26 told the Court that on 27th December, 2001, on the election day, he was sent to observe the conduct of the election by UPND at Siazwela Polling Station. He reported at the Polling Station at 05:00 hours.
The Station opened at 06:00 hours and voting went on very peacefully and that people voted up to 17:00 hours when they were told that the Station was closed. PW26 told the Court that he heard some noise outside of people expressing their anger for not being allowed to vote. He was annoyed and disappointed. According to him, those people would have voted for UPND.
Under cross-examination, he told the Court that he did not know the number of people who were stopped from voting but when he peeped through the window, he saw that there were a lot of people outside. He further tod the Court that he did not know the number of registered voters at the Station, nor did he know the number of those who voted and those who did not vote, although they were many who did not vote. He did concede in crossexamination that there were some people who arrived late after 17:00 hours.
PW32 was a registered voter at Siazwela Polling Station which fall under Haungululu Ward. He voted around 14:00 hours and after voting, he went home around 15:00 hours. Around 16:00 hours, he passed by the Polling Station and people were still voting. When he came back from where he had gone he found the Station closed. He thought this was around 17:00 hours.
He found a lot of people outside the Station who had not voted. He estimated the number to be 200. Among the 200 was his wife Thabita Shawa, PW33. PW32 stated that he did not feel alright when he saw that his wife did not vote. Under cross-examination he told the Court that if the 200 had been allowed to vote they would have voted for UPND. He said that he did not know the number of registered voters at the Station neither did he know how many voted.
PW33 was a registered voter at Siazwela Polling Station. She said that she went to the Polling Station at 14:00 hours and on arrival she found a long queue. She was about the fourth person in the queue to the entrance when she was told the Station had closed. PW33 further told the Court that she was very annoyed for not voting.
She looked for the Chairman, Clifford Chigwayi, PW3O. She gave him her voter’s card and told him to write her name down. She surrendered the voters’ card because MMD told them that those who did not vote would not be given food.
Under cross-examination, PW33 told the Court that she did not go to vote with her husband; that when she arrived at the Polling Station, she did not see her husband because there were a lot of people.
In rebuttal, the Respondents called one witness, namely, RW 18, Timothy Munkombwe Tundwe, a Teacher, who was Presiding Officer at Siazwela Polling Station. He told the Court that this Polling Station had l420 registered voters. He further told the Court that he opened the Station at 06:00 hours and that he had no problems in the morning although the queue was long.
In the afternoon the queue kept getting longer. At 17:00 hours he made an announcement outside the Polling Station that the poll was closing. He asked the police officer to count the people on the line and they were 129. He then told the police officer to go and stand behind the last person in the queue and voting continued until between 21:00 and 22:00 hours. He further told the Court that he knew both PW32 and PW33 and that PW32 was his PTA Chairman of the School. He also told the Court that he recalled that PW32 talked to him on polling day to allow his (PW32) wife to vote without National Registration Card (NRC). He told PW32 that the Regulations did not allow such kind of thing. PW32 persuaded him to bend the law and he refused. Continued Tomorrow
RW1 8 also knew PW3O, Clifford Chigwayi as a neighbour who was involved in politics. He denied that he prevented people who were on the line from voting after 1700 hours. He explained that after he announced the closure of the poll, the people who were breastfeeding came and joined the queue and it was soon after that, that he put a policeman at the tail of the queue. He also admitted having seen P\V30 in the morning when he came to cast his vote. He confirmed that there were polling agents from all politic~~l parties and none of them complained.
In cross-examination, he told the Court that after about 1730 ~ours some more people came and formed their own illegal line, which he did no~ accept and he did not know to which political parties these people belonged to. He also told the Court that he did not remember when PW32 cast his vote but said that it was in the morning; that, PW32’s wife came around l 400 hours but she did not have a National Registration Card.
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(b) Kasonde Polling Station
Under Kasonde Polling Station, PW28 testified that he was a registered voter and that around 1430 hours he went to Kasonde Polling Station to cast his vote. On arrival, he found a long queue of voters and he joined it. He was on the queue and around 1700 hours, he was told that the polls were closed. Having been prevented from voting, he felt very bad and then went to join a group of people who had been prevented from voting. In that group, there was Jacob Siamunyona, PW3 1, who was taking particulars of those who did not vote. PW28 finally told the Court that he did not complain to anyone else Under cross-examination, he told the Court that he did not know the number of people who were prevented from voting and that when the polls closed he was in the middle of the line.
PW3O testified that he was a registered voter at Habunkululu Polling Station where he went to vote on Election Day. After voting, he went to Kasonde Polling Station where he observed that polling had just started. He stayed there for some time and left for Mudukula Polling Station. After observing the voting at Mudukula, he went back to his Polling Station. He then went to Kasonde Polling Station for the second time. This was aroLind 1700 hours. While there, he heard the Presiding Officer announce that the poll had closed and there were a lot of people on the line.
The closure of the Polling Station annoyed the people. They lamented that during the campaign, MMD had told them that if they did not vote they will not be given food. He observed that PW3 I was recording the particulars of those who did not vote. He confirmed that he was an observer on behalf of UPND. Under cross-examination, he told the Court that he did not know the
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number of registered voters at the Station neither did he know the number of those who voted.
PW3 1 was an election agent and on polling day he went to Kasond’~ Polling Station around 0550 hours and polls opened at 0600 hours. T}e was there observing until 1700 hours when the Presiding Officer announced the closure of the poll. He told the Court that at the time the polls closed, there were a lot of people in the queue waiting to vote and that they were likely to have voted for UPND. He then took it upon himself to write the particulars cf those people who did not vote and gave the list to PW3O. Under cros~examination, he conceded that he did not know the number of registered voters at Kasonde Polling Station and the number of those who voted because that was not his business, his business being to oversee the conduct of elections.
For the Respondent, RW2O, Hevy Mayanda, a Teacher, testified that he was a Presiding Officer at Kasonde Polling Station in Habunkululu Ward in Pemba Constituency and that the Polling Station had 211 registered voters. On poll day, the Station opened at 0600 hours but the people were alreadv there, having assembled as early as 0200 hours. In the morning, over 100 people voted and in the afternoon people took it easy.
Between 1400 and 1500 hours, he had two voters only. At 1700 hours there were no people waiting to vote. He could only hear some people beating drums. He testified that he knew PW3O who was electoral agent of the UPND. He came to the Polling Station in the afternoon and he remained there until they finished counting votes. After finishing counting, he never
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discussed anything about the poll with PW3O. He never complained but he was celebrating.
RW2O further t~d the Court that he also knew PW3 1 as a polling ~tgeT’t for UPND at Kasonde Polling Station and that PW3 1 was at the Polling Station from the beginning up to the counting and sealing of boxes. Besides. PW3 1 never complained to him but that he was celebrating. If PW3 1 told the Court that he closed the Polling Station when there were people on the line, he would be telling lies because the Station was closed in the presence of PW3O and a Mr. Mukonde, an MMD agent.
During the polls, RW2O told the Court that he had polling agents, monitors from FODEP and another organization. Under cross~exarnination, he told the Court that more than 150 people voted. He reiterated that PW3O was with him until he left around 1930 hours. PW3O was with him up to end of the count which was at 1930 hours and if PW3O said he was at N ludukula Polling Station, he must have been there after 1930 hours.
(c) Mudukula Polling Station
For the allegation pertaining to Mudukula Polling Station, the Petitioners called PW34 who said that he was a registered voter at Mudukula Polling Station. On polling day he, his wife and daughter went to vote. He and his wife voted but their daughter did not vote. When they arrived at the Polling Station he asked some people to put his daughter somewhere because she was the one who was assisting the disabled mother.
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PW34 testified further that he was hurt because his daughter did not vote and also because many others were stopped from voting. He then asked police officers if he could write down the names of those who did not vote and he was told to go ahead. He fiu4her said that the people he registered were annoyed because, during the campaign, MMD said that those who wont vote will not be given food. He gave the list of the names he had registered to
PW30.
Under cross-examination, he confirmed that he was campaign manager for UPND and that he did not know the number of registered voters. For those who did not vote, PW34 registered more than 100 of them and when he was shown the list he gave to PW3O they only added up to 62.
In rebuttal, the Respondent called RW19, Alfred Mulengu, a teacher9 who testified that during the December, 2001 Elections, he was a Presidin~ Officer at Mudukula Polling Station in Habunkululu Ward of Pemba Constituency. He told the Court that he opened the poll at 0600 hours. He said that upon opening there were a lot of people who came in large numbers Thereafter, the number reduced.
Between 1400 and 1500 hours in the afternoon, there was again a large influx of voters but after 1500 hours the number reduced. By 1700 hours, there was nobody in the queue. He recalled that he knew PW34 as Chairman of the Neighbourhood Watch Committee, a farmer and a campaign manager for UPND and that on polling day he saw him coming to the Polling Station to cast his vote.
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He also told the Court that PW34 never complained to him about elections and that PW34 never gave him a list of those who did not vote. RWl9 further told the Court that he knew PW3O and that on the polling day he saw him at the Polling Station. RWl9 stated that PW3O was riot a registered voter at his station but was an election agent for UPND and that he was moving up and down. He did confirm that he had political polling agents and monitors at his station. Under cross~examination, he told the Court that he knew PW34’s wife to be disabled but that he did not see her on Election Day.
The submissions of the Petitioners and the Respondents are a recital of the evidence. However both parties have urged us to decide the issue on the credibility of witnesses.
We have analysed the evidence in relation to Pemba Constituency and having looked at the witnesses and their demeanour we are satisfied that the explanations of the manner the Respondent’s witnesses conducted the poU in this Constituency is more credible than the Petitioners’ witnesses. The Petitioners witnesses appeared to us to have coloured their evidence to suit their expectations. There is no way that one can conclude that all those voters that came after the closure of the poll could have voted for a particular candidate.
From the evidence, we find that there was a lack of understanding of the law that election polls close at 1700 hours by placing a police officer at the end of the queue, thereby stopping anybody from joining the c1ueue whether there is daylight or not and that all those on the queue are taken to be in the Polling Station and must vote. From the manner in which the
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Petitioners’ witnesses gave evidence they showed clearly that there was lack of understanding of the statutory functions of the electoral officials.
Having considered the evidence of witinesses from Central, Copperbelt and Southern Provinces, where it was alleged that voters were turned awa~ while on the queue and prevented from voting at 1700 hours, we are sati fled that no voter was turned away. We observe that there was evidence that there were observers and monitors at the Polling Stations in question; none of thos~.’. independent persons were called to testify on the conduct of elections.
This allegation, in all the Constituences is question is not proved.
We now deal with Paragraph 5. XV in the Petition, which reads:
“XV: That ballot boxes were exchanged and some were destroyed or exchanged whilst two days after the closure of the polls and more specifically on or about the 29th day of December 2001 members and supporters of the Movement for Multi Party Democrac~ (MMD) were caught red-handed stuffing pre-marked ballot papers in the Presidential, Parliamentary and Local Government ballot boxes. This occurred at Chipita Polling Station in Mwansabombwe Constituency. That following a report being made to policc an examination of the Presidential ballot box yielded a number of illegally pre-marked ballot papers all of which were in favour of the 1st Respondent. The said illegal stuffing of ballot papers was done in the presence of the Returning Officer and an MMD election agent.”
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The only witnesses called by the Petitioners, in relation to \vhat happened at Chipita Polling Station, were PW15, Godwin Chilanshi Chasonga, a small-scale businessman and Election Agent and PWI 6 Gladius Lukwesa Molobeka, a businessman and a Parliamentary Candidate for Mwansabombwe Constituency on the FDD ticket. PW 15’s evidence was that on the 29th December 2001, two days after the gazetted polling day, he received a report that there was voting at Chipita Polling Station.
He was driven by PW16’s driver there in the company of other ~DD supporters to find out whether there was voting. He testified that on his arrival, he saw a queue of people, who dispersed as soon as the people on the queue saw them. He told the Court that when he got to the Polling Station, h(~ saw that the Station had been made ready for voting. He saw ballot boxes for Presidential, Parliamentary and Local Government and some ballot papers.
He also found the Presiding Officer, RW22, Chisenga. He testified that he saw no polling agents of other political parties other than the agents for MMD at the Polling Station. There was no Police Officer at the Polling Station. He asked the Presiding Officer why they were voting on 29th December 2001. The Presiding Officer responded that he was acting on instructions from the Returning Officer, RW23, Felistus Musonda Moreas He left to pick up Police Officers to come and witness what was going on. He did not go back instead he instructed the driver to PW1 6 to take the Officerin-Charge of Mwansabombwe Police Station back to Chipita Polling Station. In cross-examination, he testified that he shook the Ballot Boxes ~ s~e whether any voting had taken place.
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PW16’s evidence was that on the 29th December 2001 his driver brought to his house the Officer-in-Charge of Mwansabombwe Police Station who informed him that he had just been to Chipita Polling Station and apprehended some people who were in the vehicle. PW1 6 then approached his own motor vehicle and found the Presiding Officer, RW22, in the vehicle with some MMD agents and three other people and some FDD supporters.
The Officer-in-Charge reported to PW1 6 that he found these people voting at Chipita Polling Station two days afier the gazetted polling dav. It was PW16’s evidence that he questioned RW22 on this allegation. RW22 responded that he was acting under instructions of the Returning Officer, RW23. He then made a statement to the Police and the other FDD supporters also made statements to the Police. RW22 also made a statement to the Police on the same incident. He told the Court that none of these people who were apprehended were ever charged or taken to Court.
The Respondents, in rebuttal to this evidence, called two witnesses RWs 22 and 23. We will not go into details of this evidence. Suffice it to say that RWs 22 and 23 gave their own account of what happened on 29~~ December 2001 at the Polling Station. RW22 testified that because of the instruction from RW23 at least nineteen people voted on the 29th December 2001 at Chipita Polling Station. These nineteen votes were declared invalid because by 29th December 2001, when the second round of voting took place, the results had already been announced.
The 1st and the 2nd Petitioners submitted that they had led evidence to support this allegation. According to them, the evidence of PWs1 5 and 16 supported this allegation. The 3rd Petitioner, on the other hand, in his
