Wed, 23 Nov 2016 13:29:49 +0000
The Judge has clearly failed to realise that the Electoral Process Act of 2016 is totally different from the Electoral Act of 2006. Under the new Act a seat can only be nullified if you prove that either :
1-‘a candidate did engage in electoral malpractice or that the malpractice was done with the consent or knowledge of the candidate,
2- Or that the candidate’s election or polling agents did engage in electoral malpractice or that the malpractice was done with their consent or knowledge.
However, even proving this is not enough as the malpractice has to be WIDESPREAD and that the majority of registered voters in the Constituency were, as a result, prevented to vote for a candidate of their choice.
This is the most important evidence a Petitioner must prove.
Thus the question to be answered is: what was the voter turn out in Munali? We all know that it was more than 50% i.e. the majority turned out to vote for their preferred candidates.
Under the 2006 Act there was a provision under which an election could be nulified without proving WIDESPREADNESS as long as you prove that the candidate or his agent was the one that engaged in malpractice.
This is what happened to Hon. Lucky Mulusa when his election was nullified on a single act of donating money during church service and asking congregants to vote for him. The 2016 Act has done away with this provision.
Further, in this case, no UPND witness linked the Prof. or her agents to any malpractice. The UPND witnesses didn’t even know who the Prof.’s agents were. As regards the ConCourt Judgment, there’s nowhere in that Judgment where it states that Ministers used government resources for campaigns.
The ConCourt Judgment was merely concerned with interpretation of Constitutional provisions.
This is the reasons other Judges are not even relying on it as it is not good evidence so far as Petitions are concerned.
That is use of Government resources must be specifically proved like in all other cases.This one is bound to be reversed by the ConCourt.