By PERPETUAL SICHIKWENKWE-
THE Supreme Court has ordered for a retrial of the Chilanga election petition by the High Court because it failed to resolve the election dispute in the first hearing.
Acting Chief Justice Mervin Mwanamwambwa ordered that the retrial should be heard by another judge and not Judge Gaudentia Milimo Salasini, who initially handled the petition.
Ms Justice Salasini had declared Keith Mukata the duly elected member of Parliament (MP) for Chilanga without giving reasons as to why she made a conclusion that allegations of him donating 55 bags of cement were not proved before court.
This is in a matter in which PF losing candidate Geoffrey Chumbwe petitioned the election of Mr Mukata claiming that his victory was marred with electoral malpractices, among them, the donation of 55 bags of cement to the electorate.
But Mr Mukata, who is deputy Finance minister, denied the allegations, saying the cement was bought using money contributed by two cooperatives in the area.
During trial, two documents produced in court, including a police statement recorded from Violet Machila, a house wife, indicated that Ms Machila had confirmed to the police that the 55 bags of cement were donated by Mr Mukata during the campaigns.
Ms Machila, however, during the petition hearing denied giving the statement voluntarily, alleging that she gave it under duress.
On the other hand, a report of the meeting of cooperatives was produced which indicated that each cooperative was required to pay about K1,000 for the construction of a slab in the constituency and that by May 2011, two cooperatives had contributed money which was used to buy the cement.
But in a judgment delivered on behalf of four other Supreme Court judges, former acting chief justice Florence Mumba, Gregory Phiri, Munyinda Wanki and Elizabeth Muyovwe yesterday, Mr Justice Mwanamwambwa set aside the conclusion by Ms Justice Salasini that the donation of the 55 bags of cement was not proved.
Mr Justice Mwanamwambwa said this was because the judge made the conclusion without first making an explicit finding of facts on the two conflicting documents on the source of the disputed cement and without giving reasons for the conclusion.
He said if a finding of fact was made as to when the cement was bought and by whom, then there should have been an explicit mention that such a finding of fact was made and the reasons for making it.
Mr Justice Mwanamwambwa said that the decision of the High Court was not a finding of fact as to whether Mr Mukata donated the cement or it was bought by the two cooperatives and the conclusion was made without reasons.
“So we hereby send back the case to the High Court, and order a retrial before another judge at Lusaka. Each party shall bear its own costs of this appeal and in the court below,” Mr Justice Mwanamwambwa said.
Mr Chumbwe later said in an interview that he was happy with the judgment.
Times of Zambia