DOREEN Mwamba says the Constitutional Court judgement that overturned nullification of Professor Nkandu Luos election and declaring her winner of the Munali Constituency seat is foolish and laughable.The Constitutional Court yesterday said High Court judge Edward Musona grossly misdirected himself when he nullified Prof Luos election as Munali member of parliament.
The court said all the grounds of appeal filed by Prof Luo succeeded and set side the nullification and declared her duly elected. ConCourt judge Enock Mulembe, who delivered the judgment of the panel that comprised Annie Sitali, Professor Margaret Munalula and Martin Musaluke, said UPND losing candidate Doreen Mwamba did not adduce evidence to the high degree of convincing clarity as there was no evidence to support her allegations of illegal and corrupt activities.
Prof Luo, who is higher education minister, appealed against the nullification of her seat and submitted that judge Musona misdirected himself on a lot of issues, among them when he held that the election in the area was not held on a level playing field because the appellant was a Cabinet minister and abused government resources in her campaigns. Prof Luo also argued that judge Musona further misdirected himself on the findings that the elections were marred with violence following the attacks on a UPND bus reported in the media and spread throughout Munali when such was not supported by any evidence.
She had also contended that judge Musona misdirected himself when he held that the illegal and unfair practices committed by the respondents (Prof Luo and the Electoral Commission of Zambia (ECZ), who were first and second respondents respectively, affected the outcome of election results. During trial before judge Musona, Mwamba proved that there were electoral malpractices in Munali, among them violence and that the illegal activities prevented electorates from voting for their preferred candidates and produced a video which depicted the violence.
Later on, the video, which Mwamba produced before judge Musona disappeared from the judiciary and the Concourt ordered the High Court judge who had viewed the contents to view the new video which was availed to confirm its authenticity. And after viewing the video, judge Musona confirmed that that was the video he saw and based his decision to nullify the Munali seat. But the Concourt reversed the findings of judge Musona and declared Prof Luo as duly elected member of parliament.
Judge Mulembe said judge Musona grossly misdirected himself when he nullified the seat. He said after analysing the evidence before the bench, Mwamba failed the test in which she was supposed to provide cogent evidence to support her allegations. Judge Mulembe said there was no concrete evidence on record that Prof Luo abused government resources in her campaigns. He said the burden lay on Mwamba to prove the allegations because the one who alleges must prove, adding that the respondent also did not adduce evidence on how the said alleged misconduct of Prof Luo affected the outcome of the elections.
Judge Mulembe said Mwamba clearly failed the test, saying the court was perplexed that judge Musona wanted Prof Luo to prove that she did not use government resources like the government vehicle when it was Mwamba who was supposed to provide the court with such evidence. He said it was not in dispute that Prof Luo was Cabinet minister during the campaigns but added that none of the respondents witnesses proved that she used her government salary and other resources in the campaigns.
“There is no proof with convincing clarity from the first respondent that the appellant used public resources in her campaigns,” judge Mulembe said.
He said the court viewed the video evidence and it was not in dispute that a UPND campaign bus on August 8, 2016, was attacked in a violence that erupted in Mtendere in Munali Constituency but that what was in dispute was if it was Prof Luo or her agents who perpetuated the violence. Judge Mulembe said Mwamba clearly claimed that Prof Luo sponsored the violence in Munali but the latter vehemently denied it.
He said the court searched the record and did not see any evidence linking Prof Luo to having sponsored the violence or if she had knowledge of the attack. Judge Mulembe said the court carefully perused the record and having viewed the video evidence availed to it, it did not see any evidence that Prof Luo sponsored the violent cadres. He said Mwamba further failed to adduce evidence that Prof Luo had knowledge of the violence. On judge Musona’s finding that Prof Luo had not sufficiently shown what measures she had put to cage her violent cadres, judge Mulembe said that finding was perverse as it was a misdirection for the lower court judge to apportion blame on the appellate when there was no evidence showing that she had knowledge of the violence.
The judge said the lower court held that the allegation was proved just because Prof Luo did not show the measures she had put in place to cage her supporters, saying that was gross misdirection on the part of judge Musona. Judge Mulembe said the evidence on record was that Prof Luo had knowledge of the violence after she was informed by phone. The court said all the grounds Prof Luo raised succeeded and therefore the Munali parliamentary elections were conducted in accordance with the law and set aside the decision of judge Musona to nullify the elections and declared Prof Luo duly elected.
After judgment, there was jubilation outside the courtroom and Prof Luo thanked her supporters who offered her solidarity throughout the process.
I have only got one message, just to thank the people who have supported me in all this process, coming to court but I will give a comprehensive reaction [later].
Patriotic Front secretary general Davies Mwila told journalists that the victory judgment on the Munali seat meant that there was no interference in the court process.Â He said as a party in government, PF would continue working for the people.
As a party we are very happy for the outcome. We have waited for this judgment for more than two years. What that means is that the judiciary is independent, there is no interference, so we have to continue working for the people, said Mwila.
Commenting on the judgment from London, Mwamba, who has remained with a spinal injury sustained from the attack during election campaigns, said she was not surprised that the court decided in favour of Prof Luo when the same court in August ruled in another matter that ministers were in office illegally and ordered them to pay back the salaries they were drawing when Parliament was dissolved.
Mwamba, however, said it was surprising that the same court that ordered the ministers to pay back could now find that Prof Luo did not abuse public resources during the campaigns. She wondered why it took the ConCourt almost two years to deliver judgment.
“It’s laughable, I knew about the judgment, I knew that it was going to be a stupid, foolish judgment. It’s sickening,” she said.
Mwamba added that she was currently in London for review over the permanent injuries she sustained after the UPND bus in which she was during campaign in 2016 was attacked by PF cadres.
“I have permanent injuries and the judge rules that the violence was not sponsored by Nkandu Luo!” she lamented.
Mwamba, however, said she was not bitter.
I know without a doubt that God, who is fair, is going to deliver His judgment, she said.
“This is actually their own judgment they have delivered. This judgment shows what the ConCourt stands for, what it was set up for and who it serves. Definitely it doesn’t serve the Zambian people. This is their time. I would like to thank God for allowing me to pass through this path. If God wanted me to win Munali in August 2016, I could have won but no, He wanted me to pass through this path. He wanted me to know what our people go through.”
Mwamba thanked the UPND and her legal team for the support.
“I give special thanks to my legal team led by Dr Henry Mbushi. I thank my family for unwavering support. I am grateful to be a part of the great UPND party and for the guidance of our party president Hakainde Hichilema. I am thankful to the media for keeping this case alive and reporting it accurately,” said Mwamba.