By Enock Kademaunga
SIBONGILE Mwamba has appealed against the High Court’s decision to nullify her election as Kasama Central member of parliament.
Last month, High Court judge Emilia Sunkutu who was sitting in Mansa nullified Sibongile’s election after UPND losing candidate Roderick Chishimba Chewe petitioned the election, citing several electoral malpractices.
Chewe submitted that Sibongile’s, Geoffrey Bwalya Mwamba and Chishimba Kambwili had used tribal remarks during the campaigns.
However, Mwamba has appealed to the Constitutional Court against the whole judgement delivered against her on November 25, 2021.
In her memorandum of appeal, Mwamba argued that the judge erred in law and fact when she admitted, as part of Chewe’s evidence, matters that were not pleaded even after the same were objected to by both her and the Electoral Commission of Zambia (ECZ).
She submitted that to the contrary the judge instead guided that she would address the same issues in her judgement when they should not have been entertained in the first place.
“The trial judge erred in law and fact when she found that the appellant had knowledge of the sentiments of Kambwili when to the contrary there was no evidence on record that had shown that indeed the appellant listened to the programme or that it was done with her knowledge or knowledge of her election agent, but to the contrary, there was evidence that the statements of the said Kambwili who were respectively with the presidential candidates of the PF and that of the UPND,” read the memo of appeal.
She said judge Sunkutu erred in law and fact when she held that the sentiments of Kambwili who was not an appointed election agent for her affected her election validity when the same Kambwili never campaigned for her.
Sibongile argued that this was contrary to the evidence on record which clearly showed that Kambwili was campaigning for former president Edgar Lungu.
She said the judge wrongly held that the appellant should have dispelled the sentiments of Kambwili when the same did not touch on the campaigns of the appellant and Chewe.
“The learned judge erred in law and fact when she kept on aiding Mr Chewe by directing him to call more witnesses and evidence when the court noticed that his witnesses were discredited or damaged in cross examination or that evidence was not properly before court,” she said.
Sibongile further said the judge erred in law and fact when in her global discourse and conduct of the matter allowed issues not pleaded to grace the record and made some findings of the fact which were preserves, made in the absence of any relevant evidence.
She said judge Sunkutu also erred in law and fact when she, even after delivering the judgement, still failed or neglected to distribute the judgement copy to the appellant, citing that she had not finished working on it 13 days after she delivered the same.
“The learned judge erred in law and fact when any other ground that may arise especially that as at the time of filing the appeal the trial judge had not availed the parties the judgement of the Court citing that she was still working and perfecting some areas,” said Sibongile.