After hearing submissions from both parties for 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 Electoral Commision of Zambia (ECZ)
deputy director, Priscilla Isaac.
Making 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 legally mandated.
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 ECZ did not follow the Electoral Act.
He also said that at some polling stations, there were variances 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 election the difference was
only about 35,000 unlike in the 2006 elections when the 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 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 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 the 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 in 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 the 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.
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