High Court was right to nullify Lusambo’s election, Kanengo tells ConCourt
By Mwaka Ndawa
LOSING UPND candidate for Kabushi Constituency Bernard Kanengo has submitted that the High Court was on firm ground when it nullified the election of PF’s Bowman Lusambo.
Kanengo, through his lawyer Chimuka Magubwi, said there was no ground of appeal challenging the court’s decision that Lusambo’s election was marred with violence.
This is in a matter where Lusambo has appealed to the Constitutional Court against the Ndola High Court’s decision to nullify his election.
On November 19, 2021, High Court judge Edward Musona declared Lusambo’s election as Kabushi member of parliament in the August 12, 2021 general elections as null and void, citing violence, among other electoral malpractices.
This was in a matter where Kanengo petitioned the election of Lusambo in the Ndola High Court.
When the matter came up for hearing before judges Hildah Chibomba, Mungeni Mulenga, Margaret Munalula, Palan Mulonda and Judy Mulongoti Lusambo’s lawyer Jonas Zimba said judge Musona applied a wrong standard in determining the petition.
He said judge Musona applied a standard of proof which was applied in a civil matter and not what was required in an election petition.
“This is a wrong standard, the correct standard to be applied is the one in your judgement of Nkandu Luo vs Doreen Sefuke Mwamba and the ECZ,” submitted Zimba.
Lusambo’s other lawyer Makebi Zulu said judge Musona misapplied the law when he held that the violence that characterised four wards in Kabushi Constituency was widespread and anchored his decision to nullify the seat on the same because Lusambo did not detach himself from the confusion perpetrated by the so-called ‘NATO forces’.
Zulu said the High Court departed from the law when it held that Lusambo was culpable for the violence because he did not say anything to detach himself.
He said it was shocking for the court to find Lusambo wanting for the violence he witnessed in two out of the four wards where acts of violence were recorded.
“This is a serious dilution of the standard set by the Constitutional Court. The decision despite referring to the correct law was misplaced and the judgement should be set aside. The law used in the Nkandu Luo case should be emphasised,” said Zulu. “The election of Lusambo should be upheld. There was no finding that other grounds such as bribery, corruption and undue influence were proved to a degree of convincing clarity.”
In response, Magubwi opposed the submissions by Lusambo’s lawyers.
He said the argument was incorrect and not supported by the record that the judge warned himself to the standard of proof that he ought to have abided by.
“The judge in the lower court cannot be faulted on the standards he applied in determining the petition before him,” Magubwi said. “The judge is saying Lusambo on two occasions you were with these ‘NATO forces’ and they committed violence on two occasions, the findings of the lower court had not been challenged.”
He said judge Musona was guided by Section 97(2) of the Electoral Process Act when he ruled that Lusambo had knowledge of the violence and did nothing to denounce.
“The judge was on terra firma when he attributed the widespread violence to Lusambo’s responsibility,” Magubwi said. “There is no ground of appeal challenging the grounds of bribery, corruption and undue influence.”
He said the arguments of the electoral body should be taken as submissions by an adverse party as they were in support of the appeal.
Magubwi added that Lusambo’s appeal lacked merit and ought to be dismissed.
The Electoral Commission of Zambia said it would rely on the heads of arguments.
In response, Zulu said Magubwi had confirmed that Lusambo was only aware of two incidents of violence, therefore, the court should determine whether his presence amounted to condonation or knowledge and if Magubwi agrees then the appeal should be allowed.
He said if the court affirmed the same it should determine whether the two incidents of violence amounted to widespread.
Zulu said there was no evidence to show that the ‘NATO forces’ were Lusambo’s agents and relying on the same shifted the burden of proof.
He insisted that the finding of the court was flawed.
Zimba said section 97(2) had three aspects such as knowledge, consent and widespread which must be read together before being applied.
He added that the majority of the electorate chose Lusambo to represent their interests in parliament.
Judgement in the matter has been set for May 26, 2022.
Caption: Lusambo, his lawyers Makebi Zulu and Jonas Zimba leave the Supreme Court building after the petition hearing on Thursday – Picture by Mwaka Ndawa