Tuesday, 17 February 2009


POLICE officers barricade the exit to the Supreme Court during the PF election recoutn hearing.

THE Supreme Court has set March 11 as the date for ruling in a petition in which Patriotic Front (PF) president Michael Sata wants the court to order for a recount of ballot papers cast in the October 30, 2008 presidential elections.
After hearing submissions from both parties for about three hours deputy chief justice Ireen Mambilima sitting with Supreme Court judges Sandson Silomba, Dennis Chirwa, Peter Chitengi and Marvin Mwanamwambwa adjourned the matter to March 11 for ruling.
During the submissions, Mr Sata’s lawyers led by State Counsel, Bonaventure Mutale said their client had through his three affidavits produced enough evidence in support for an order to recount the votes.
The State and President Rupiah Banda’s lawyers, however, said that the application should be dismissed because all Mr Sata said had been rebutted in an affidavit filed by ECZ deputy director Priscilla Isaac.
Starting the submissions for Mr Sata, Mr Mutale said there was a violation of the electoral process when some constituencies were supervised by people who were not mandated legally.
Mr Mutale named the affected areas as Chisamba, Mwembeshi, Nakonde, Muchinga, Serenje, Milenge, Mbala and Senga Hill.
He said voting in Sikoongo and Sinjembela constituencies took place on October 31 and November 1 which were not prescribed polling dates and when postponing the elections the Electoral Commission (SCZ) did not follow the Electoral Act.
He also said that at some polling stations there were variances on documents in the numbers that were recorded in figures against those in words casting doubt on the authenticity of the results announced.
“There is need to recount the ballot papers to establish the true position unlike in the Mazoka petition where the recount was denied because there was insufficient evidence,” he said.
Mr Mutale said in the last presidential elections the difference was only about 35,000 unlike in the 2006 elections when late president Mwanawasa won by over 200,000 votes.
He said in the interest of justice and in safeguarding a credible electoral process it would be best served if the votes were recounted.
Mr Mumba Kapumpa, also representing Mr Sata said that when postponing the elections the ECZ was supposed to issue a gazette notice and publicise the change in the media and the ECZ chairperson only issued a statement on November 2, after the elections.
Another lawyer for Mr Sata, Mr Winter Kabimba said that presidential petitions were governed by article 34 of the constitution which gave the court a wide jurisdiction to hear the matter.
He said while the state had not objected to the erroneous figures, the ECZ had not provided the correct figures and that not only evidence from witnesses could be relied upon for an order of recount.
He said the petition focused on the administration of the electoral process by the ECZ and he felt that Mr Sata had laid enough evidence within perimeters of the law to warrant an order for a recount.

Solicitor General Dominic Sichinga, however, said that like in the Mazoka petition there was no evidence produced by Mr Sata or witnesses mentioned in his affidavits to warrant a recount and that Mr Sata had not said that he was present at the polling stations he complained about.
“We submit that you have not heard any evidence to merit a recount from election agents, monitors and others mentioned in the affidavits,” he said.
Mr Sichinga said that the court should note that Mr Sata wanted a recount of all the 150 constituencies when he had only complained of 24 constituencies and a few polling stations.
He said the court was inhibited in granting an order for recount and the application should be dismissed with costs.
Also representing president Banda, Mr Christopher Mundia said that it was totally extravagant for Mr Sata to apply for a recount of all the 150 constituencies when he had not adduced enough evidence.
“A recount is not a right but is granted at the discretion of the court upon evidence being adduced. The voting in Sinjembela and Sikoongo constituencies had been fully explained in Ms Isaac’s affidavit,” he said.
Mr Mundia said that Ms Isaac had also made it clear that the results that were announced by ECZ were the ones that were verified and the application for a recount should be dismissed because it was misconceived and frivolous.
Prof Patrick Mvunga said that entertaining the request without evidence from witnesses mentioned in affidavits was like relying on hear-say which could not warrant a recount and Mr Sata did not want to give sworn evidence to support his application.
He said Mr Sata’s application for a recount was an afterthought prompted by the marginal victory by president Banda because he could have done so at polling stations.
He said if Mr Sata was granted the application it would amount to saying he had an automatic right to a recount without reasons.
On illegal persons supervising elections Prof Mvunga said that he should have been talking about the validity of results and not the recount.
He said the application for recount was far fetched unless it was supported with evidence and should be dismissed with costs.
As the court proceedings went on, PF cadres also continued with a lot of activities out the premises where 500 police officers were deployed to keep an eye on them.
They sung political party songs and chanted slogans.
There was no physical confrontation with the police.

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