By Victor Angula |
A Katima Mulilo Magistrate’s Court yesterday set free a 40-year old man who was arrested at a polling station and charged for the crime of attempting to vote twice during the 27 November 2019 Presidential and Parliamentary Elections.
After a trial that took one day (on 8 November 2020), the accused, Mr Lazarus Valentinus, came back to court a year later (on 9 November 2021) to hear Public Prosecutor CT Mundia tell the court that: “We led 2 witnesses, Ms Matali and Dep. Commissioner Simasiku; after leading the 2 witnesses, we decided not call our 3rd witness as we realized that we did not prove our case beyond a reasonable doubt and we pray that accused should not be placed on his defence and he must be discharged (…)”
To which Magistrate Clara Mwilima responded that: “ITO Section 174/1977 as amended, at the close of the State’s case, there is no evidence upon which an accused person may be placed on his defence. He is thus found not guilty and discharged.”
The collapse of the State’s case against Mr Valentinus came hot on the heels of cross examination by his defence counsel who with questions to the State’s witnesses dismissed the relevance of the case in the wake of the February 2020 Supreme Court’s decision which declared the use of Electoral Voting Machines (EVM) without a paper trail as unlawful.
The evidence heard in the Katima Mulilo magistrate’s court had shown how Valentinus entered the polling station at Ngweze Primary School with a voter’s card obtained in Otjiwarongo.
An electoral officer Ms Matali Pedi Kachana who was a voter verifier at the Ngweze polling station told the court that: “I told [Valentinus] to put his hands on the machine, the machine reflected that he voted elsewhere as the machine reflected the ink and he said he did not vote anywhere and it was his first time to vote.”
Valentinus was made to proceed to the next table which was for the scanning of voter’s cards. “When I scanned his voter’s card,” Kachana testified, “the machine rejected it and it reflected that he already voted and I told him that he cannot proceed.”
It was at that point when the police were called in to arrest Valentinus.
The second witness of the State was Deputy Commissioner Evans Simasiku, the Regional Crime Coordinator for Zambezi Region. It was Simasiku who took Valentinus to another polling station, the Ngweze Community Hall, where the EVM machines also indicated that Valentinus had voted already.
“When I asked him, he insisted that he did not vote prior to the day or hour and he does not remember voting elsewhere,” Simasiku told the court.
However, under cross examination, Simasiku admitted that apart from the machines which were saying that Valentinus had voted already there was nothing else indicating that he had been at any polling station that same day.
In concluding the cross examination of Deputy Commissioner Simasiku by defence counsel Ms Bianca Beatrix Boois of BB Boois Attorneys, counsel asked questions which put the final nail in the coffin of the State’s case against Valentinus.
Boois: “Are you aware that there was a [Supreme Court] case about the EVM machines?”
Simasiku: “Yes.”
Boois: “The court said they [the machines] will not be used again?”
Simasiku: “Yes.”
Boois: “That is all.”
It was thus on resumption of the trial on 9 November 2021 that the State decided to throw in the towel and declare to the court that the prosecution had failed to produce evidence strong enough to continue with the trial.
And the court duly had to declare Mr Valentinus not guilty on the charge of attempting to vote twice.
In the photo: Electoral Voting Machine (EVM).
