Prof. Nkandu Luo wins petition case

Munali Constituency Member of Parliament and Higher Education Minister Prof Nkandu Luo was duly elected MP for Munali during the 2016 August 11 General elections, The Constitutional Court has ruled.

This is in the case in which Prof Luo was challenging the nullification of her seat by High Court Judge Edward Musona after the court found that the ECZ failed officials to properly handle the electoral process and did not provide the Gen 12 forms to 14 polling stations and electoral irregularities and rampant acts of violence as reason for nullification of the Munali seat

Judge Musona also ruled that Prof Luo had an undue advantage in the election because she was a serving Minister at the time of election and used public resources especially that the Constitutional Court had ruled Ministers pay back to the treasury the monies they had accrued during that period.

But in delivering his judgment today on November 16 Justice Mulembe has cited Section 97 (2) which states that the election can only be nullified if the pertinent proves to the required standards that the corrupt practices were committed with the full knowledge and consent of the candidate.

The section further states that the petitioner must prove that the widespread violence affected the majority of the voters in electing the candidate of their choice.

In addressing ground one on the allegations of the Appellant abusing government resources by using government vehicles the court has stated that by law a person shall not use government resources during campaigns but the burden of proof lies on the petitioner to proof the allegations, the court has reserved the lower Court’s decision on that finding because there is no evidence to show that Prof Luo used government resources during her campaigns.

On allegations on the use of the government vehicles by Prof Luo the court has refused to support the evidence because Ms Mwamba failed to adduce evidence that Prof Luo abused government resources as she failed to recall the government vehicle and not having details of the Driver who was driving the Appellant

The court says it is not in dispute that she was a cabinet minister but it is not for a fact that the use of her salary during her campaigns affected the election as it has been established that there was no evidence to show that she used government vehicles during her campaigns as the petitioner failed to adduce evidence that the Mwambwa abused government resources as she failed to recall the government vehicle and not having details of the Driver who was driving the Appellant.

In addressing the issue of the violence in Mtendere, it is not in dispute that violence erupted in Mtendere were the UPND were affected but what must be ascertain in whether Prof Luo sponsored the violent cadres in Mtendere who attacked the UPND campaign Bus.

Justice Mulembe has found that he has seen no evidence to show or to suggest that the appellant was connected to the incident that erupted in Mtendere as found by the lower court and that there was no single evidence which was directed at Prof Luo to have been the one who sponsored the PF cadres to attack the UPND campaign bus.

He has confirmed viewing the video but says he finds that there is no evidence to show that Luo sponsored the violence adding that she was not at the scene of the attack adding that the court below did not properly address itself on the issue of the violence.

In ground three on the allegation of Ms Mwamba being denied entry at a polling station at Vera Chiluba the court has established that according to the record the petitioner conceded that Kaizer Zulu was not at the gate and that no one denied her entry adding that some witnesses testified that there were no way that Mr Zulu could have closed the gate as the correct position was that the gate was closed by ECZ officials had closed the gate at the time the petitioner arrived at the polling station because of some voters who wanted to cast their votes after voting had been closed.

In this regard the court has reversed the lower Court’s decision on this allegation because there is no evidence on the pleadings to support the allegations

ground four on the failure by ECZ to provide supply adequate number of the f Gen 12 form which allegedly affected the elections, the court has found that no election should be nullified because of the act or omission by the electoral officer as there should be evidence that the irregularity affected the election results.

It is on record that this did not only affect the Petitioner but even other candidates but it it is shocking to note that the lower court only came to a conclusion that Ms Mwamba was the only one affected.

Justice Mulembe rules that he does not agree with the finding that the failure to supply adequate Gen 12 form affected the election results adding that the lower court did not properly evaluate the evidence on record adding that it was an unbiased decision by the court below as this affected all the candidates equally and did not result in fraudulent act.

The court has not seen any evidence that the an adequate Gen 12 forms in the Munali seat affected the elections of the 2016 elections.

The matter was involving UPND losing Parliamentary candidate for Munali Constituency in the 2016 August 11 elections Doreen Mwamba who petitioned the election of PF’s Professor Nkandu.

Prof Luo appealed on five grounds in which she contended that the lower court below erred in law and in fact when it held that the appellant was the one who sponsored the violent Patriotic Front cadres in the widespread violence in Mtendere as no witness was called to identify the victims of the violence.

The appellant further contended that the court below erred by finding that the failure by the Electoral commission of Zambia to provide form Gen 12 to the UPND polling agents affected the polls was a misdirection because there was no evidence adding that if there was such a case it did not only affect Ms Mwamba alone but all the participants

In other ground of appeal Prof Luo stared that the court below erred in law and in fact when it held that ECZ failed to conduct free and fair elections in Munali Constituency.

It was also her argument that the 1st Respondent Ms Mwamba was denied entry at a polling Station at Vera Chiluba School when President Edgar Lungu Political Advisor Kaizer Zulu closed the gate as there was no evidence laid to support the allegation.

In her last ground of appeal she has accused the lower court of having erred when it nullified her seat on grounds that she used government resources during campaigns as she was still holding her office as a cabinet Minister who was drawing a salary and driving government vehicles due to lack of evidence that the use of government resources affected the election as she used her gratuity and money from the well wishers for her campaigns.

But Mwamba, through her lawyers Dr Henry Mbushi, Keith Mweemba and Gilbert Phiri, asked the court to dismiss Prof Luo’s appeal against the nullification of her seat as Munali member of parliament dated December 22, 2016 because it was defective for being incomplete as it did not contain all the exhibits that were tendered as evidence before judge Musona.