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IN THE MATTER OF ELECTORAL ACT, CAP. 19
IN THE MATTER OF THE PARLIAMENTARY GENERAL ELECTION FOR THE MUMBWA EAST CONSTITUENCY HELD ON THE 27TH DAY OF OCTOBER,1983
IN THE MATTER BETWEEN: SETH SHIBULO LOONGO - Petitioner AND KENNEDY MPOLOBE SHEPANDE - Respondent (1984) Z.R. 59 (H.C.)
E.L. SAKALA, J.24TH MAY,1984(H.C. JUDGMENT NO. 1983/HP/EP/25)
|Elections - Recount of votes - Application for - Procedure to be followed- Whether recount and scrutiny mean the same thing.|
|The petitioner polled 2 099 votes and the respondent 2 340. The petitioner alleged that during the counting of ballot papers in respondent's tray, a certain bunch of ballot papers had been counted twice. When the alleged double counting was queried, the Returning Officer is alleged to have ignored the query and declared the respondent duly elected.
The petitioner moved the High Court seeking an order for scrutiny to be carried out to determine the number of valid votes cast for both the respondent and himself.
(i)A scrutiny is not the shine thing as a recount of the votes cast.
(ii)An application for a recount should not be made by petition, but by interlocutory summons supported by an affidavit.
(iii)An Order for the recount of votes is not a relief; it merely helps the court in arriving at its decision as to which candidate should have been declared duly elected.
(1)Phiri v Phiri (1979) Z.R. 126.
Legislation referred to:
Electoral Act, Cap. 19, ss. 17 (2) (b) and 28.
Other Works referred to:
|E.L. SAKALA, J.
This is a petition by Seth Shibulo Loongo, who together with the respondent Mr Kennedy Mpolobe Shepande, and five others were candidates in an election held on 27th October,1983, in the Mumbwa East Constituency. The Returning Officer in that Constituency declared and returned Mr Kennedy Shepande as duly elected. The petitioner prays that it may be determined that the said Kennedy Shepande was not duly elected and that he ought to have been returned and declared duly elected himself. The petitioner also prays further and in addition, for a scrutiny to be carried out to determine the number of valid votes cast for both the respondent and himself.
This ground is based on the provisions of Section 17 (2) (b) which reads:
17.(2) The election of a candidate as a member shall be void on any of the following grounds which is proved to the satisfaction of the High Court upon the trial of an election petition, that is to say:
(a)Whether on the facts of the case there has been non-compliance of the provisions of the Electoral Act and if so whether the said non-compliance affected the result of the election.
The declaration of result of poll, exhibit 'P2', discloses that the respondent polled 2 340 votes while the petitioner polled 2 099. The evidence of the petitioner's election agent, PW3, who was present at the counting is that during the counting of ballot papers in the respondent's tray, he observed a bunch of ballot papers which was counted twice. When he queried, the Returning officer ignored him. The Returning officer admitted in court the discrepancies in the counting. He attributed this to human error. A scrutiny of exhibit 'D1' a Record of Proceedings at the count, prepared at the time of counting the votes shows a lot of cancellations, alterations and crossing of figures. Exhibit 'P2' prepared at the verification front exhibit 'P1' also shows some alterations of figures.