Justice Musona’s ruling in Mwamba v Nkandu Luo (2016)

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By E. Munshya, LLM, MBA, MDIV.

Justice E. L. Musona on Tuesday, November 22, 2016 delivered his ruling in the Munali Constituency parliamentary petition. It is a 56-page judgment imbued with story. Good story is what makes a good case. In fact, stories win cases. A trial is a story. Gathering of evidence involves story telling. Unless you learn to tell a story, you cannot win in court. Going through the judgment, you can see how the petitioner Doreen Sefuke Mwamba told her story and arranged her evidence. It was quite an emotional story too and quite compelling. It also involved some hilarious features like when one of the petition witnesses testified that they saw PF cadres give soft drinks to police men, allegedly laced with some substance that caused the police officers to fall into a deep sleep immediately after taking the drinks. It is while the police slept, testified the witness, that PF cadres helped themselves to stuffing the ballot boxes-packing and unpacking them. Every story needs such twists and turns. And in the Mwamba v. Luo and others, you have the story, you have everything. Perhaps the saddest part of the evidence was when candidate Mwamba testified that she feared for her life as she and other members of the UPND were being beaten on top of the campaign double decker bus in Mtendere. PF cadres were shouting among themselves and encouraging each other to do what Ms. Mwamba understood was going to be rape. No candidate in Zambia needs to live in this kind of fear. Our country can do better and must do better. Rape or the threat of rape has no place in our country’s political discourse.

 

Justice Musona has captured the spirit of democracy in his ruling. I find it quite thrilling. He has categorically put it very eloquently that the Electoral Commission of Zambia has the duty to ensure that it complies with the law. Particularly, Mr. Justice Musona took issues with the Form Gen. 12 which in many polling stations had not been signed by polling agents. He then added this important statement on page J43:

“In a democratic society like Zambia, no area can be a NO-GO-ZONE to other political parties. Each political party is free to campaign in any area without hindrance from any rival political parties”.

This statement is a direct indictment on all of us and I hope that the Electoral Commission of Zambia will heed Mr. Justice Musona’s thoughts here and allow for elections that are truly free and fair for all political players. Justice Musona did not spare the state either. He indicted the police as having been complacent in the Munali unfair election stating “the state also did not show what action the State police took regarding that merciless attack by PF supporters on UPND supporters. State police, therefore, like the Electoral Commission of Zambia, have let down the people of Munali constituency”. It cannot get any uglier than this. We had better pay heed to Justice Musona’s rebuke.

I understand that Professor Luo is appealing Justice Musona’s ruling. For all the good things this decision is to Zambian electoral jurisprudence, I believe an appeal would be in order. Justice Musona is quite right about the violence characteristic of the Munali constituency. He is right in his concern with the general lapse of the Electoral Commission of Zambia, but I find it difficult to accept the idea that the petitioner discharged its burden sufficiently on the charges. The greatest weakness in Mr. Justice Musona’s legal reasoning has to do with the nexus between the illegal acts and the impact on the majority of the electorate in Munali. I am finding it difficult to find the connection. For now, the matter may be appealed, or maybe it has been appealed already and we wait to hear what the constitution court will say about it.

Whereas Mr. Justice Musona is right about the standard of proof required in electoral petitions, I do not see how he uses this standard considering the evidence before him. For example, how does he connect the acts of the violent cadres on the double decker bus with the candidate or her agent? The law does not punish the candidate for the acts of violence perpetrated by cadres, candidates are held accountable for the acts the candidates do or acts that are done with their knowledge or approval or approval of their electoral agents. I think that may be the question the appellant court must answer.

For now, we notice the good with Justice Musona’s judgment, but we also face the challenge of how he came to the decision. No matter how the Constitutional Court looks at, we will all have to agree with Justice Musona that, “Each political party is free to campaign in any area without hindrance from any rival political parties.”

The ruling can be downloaded here:mwamba-v-luo-and-others-2016

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Elias Munshya is a civil litigator and administrative law practitioner in Alberta, Canada.
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