10 December 2008
THE State has urged the Supreme Court to dismiss Patriotic Front (PF) leader Michael Sata's petition for a recount of ballots in the last presidential election because it is incompetent and misconceived at law.
And President Rupiah Banda has said that the petition's legality was in question because it merely sought a scrutiny of votes cast and did not allege any malpractices or corruption.
Mr Sata asked for a recount of votes cast in all the 150 constituencies, saying the Supreme Court should also declare as winner whichever candidate would be found with the highest votes.
But the State on behalf of the Electoral Commission of Zambia (ECZ) through Attorney General Mumba Malila said there were no grounds laid in the petition that would merit the relief that was being sought.
This is contained in sworn affidavits in response filed in the Supreme Court by Mr Malila and Mr Banda on December 1.
Mr Banda is represented by lawyers Mvunga and Associates, CL Mundia and Company and Banda Watae and Partners.
Mr Malila said Mr Sata was not entitled to any of the reliefs sought because he had not shown any credible basis for recount in any of the 150 constituencies.
He said that on average, a single constituency took seven days to recount and that meant it would require three years for a national recount.
Mr Malila argued that a countrywide recount would cost the country not less than K21 billion because a single constituency would cost K140 million.
"Such a mammoth, time consuming and expensive exercise cannot be undertaken on flimsy grounds," he said.
Mr Malila said Mr Sata's allegation of a negligible number of spoiled ballot papers in rural constituencies, which had low literacy levels needed proof.
He said the total number of votes cast tallied with the used ballot papers, inclusive of the rejected ballot papers, contrary to Mr Sata's allegation of an inexplicably high turnout in Mkaika, Vubwi and Sinjembela constituencies.
He said the three constituencies had turnouts of 37, 43 and 39 per cent, respectively against the national average of 45 per cent.
He denied claims that poll result forms in Chisamba, Mwembeshi, Muchinga, Serenje, Nakonde, Mbala and Senga Hill constituencies were processed by persons who were not duly gazetted as constituency returning officers.
He explained that for Chisamba the returning officer died prior to the elections date and another returning officer was duly appointed and gazetted while names for officers in Serenje Central, Muchinga, Senga Hill and Mbala Central constituencies were inadvertently transposed.
For Mwembeshi constituency the names of the returning officer were erroneously recorded and abbreviated while in Nakonde, the officer, Felix Siame carried out his duties.
"The transposing of names and typing errors committed were misnomers and not inimical to the electoral process in the affected constituencies," he said.
On the extension of voting in some polling stations in Western Province, he said that they were not a secret as a Press statement was issued by the ECZ and they were in accordance with the terms of the law.
He further said that President Banda won the elections after he polled 718,359 compared to Mr Sata's 683,150 and that the ECZ was established under Article 74 and not under Article 38 of the Constitution.
President Banda said in his response that Mr Sata's claim that the 23,596 votes declared as rejected and mostly from urban areas appeared unreasonably high and amounted to nothing more than conjecture.
He said the allegation by PF agents that the votes cast were not correctly recorded and accurately counted and transmitted at some polling stations required strict proof.
He said the claim that rural constituencies had less spoiled votes, inexplicably high turn-out and that the narrow margin could be obliterated through a scrutiny and recount was conjecture and required proof.
"Allegations of disparities in votes cast and total number of used ballots is within the exclusive knowledge of Mr Sata and needs proof," he said.
The president further said that Mr Sata was not entitled to the scrutiny and recount of all the 150 constituencies and that the candidate with the highest number of votes be declared winner.
Mr Banda, who admitted that he won by a narrow margin, said he voted at Nyakutwa polling station in Chipata and was duly declared president at the close of the process.
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