Thursday, May 30, 2024

Zambian Supreme court losing credibility

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The Civil Society in Zambia has expressed shock at the Supreme court’s 360 degrees turn in claiming that parliamentarians whose seats were nullified were not eligible to re-contest their seats.

Reading a press statement on behalf of the Civil society, FODEP executive director MacDonald Chipenzi wondered how the judiciary questioned an election and nullified a seat without any petition filed in the High Court in accordance with section 93 (1) of the Electoral Act.

Mr Chipenzi said the behaviour of the judiciary had put the standing of the Supreme Court in question as public perceptions were now that the highest court of the land was being nurtured to settle political battles.

He said there was no way the judiciary could claim that the candidates whose seats had been nullified could not re-contest because the petitioners were not petitioning individual candidates but were petitioning the process.

Below is the Full Press statement

STATEMENT ISSUED BY A CONSORTIUM OF CIVIL SOCIETY IN ELECTIONS AND ELECTORAL PROCESS ON THE FORTHCOMING BY ELECTIONS ISSUED AT FODEP HOUSE AT 12HRS ON 9TH AUGUST 2013

Dear Colleagues,

We, the civil society in the electoral process in Zambia hereby want to make our position known on the debate raging on the Electoral Commission of Zambia (ECZ)’s allowance of persons whose parliamentary seats have been nullified by the Courts of Law and the statement from the Judiciary regarding the same.

Shock and Awe

We have followed the debate with an extra keen interest as it is coming at the time the country is preparing itself to hold four more by-elections in Petauke Central, Malambo, Mulobezi and Mkaika constituencies. These by-elections have been primarily caused by a court action save for Mkaika which was caused by resignation of the incumbent, David Phiri of MMD to join the ruling Patriotic Front.

We noted that this is the first time in the history of Zambia that political parties, judiciary and some civil society have shown unprecedented interest in the matter since the nullifications and re-contesting of seats by persons whose seats have been previously nullified by the courts started. This is evidenced by the fact that there are no final election reports that have been compiled by various stakeholders involved in the electoral process in Zambia which have specifically made recommendations on the provisions Section 22 and 104 of the Electoral Act No.12 of 2006.

Constitutionally under Article 65 (6) only persons who are convicted by any court of any offence prescribed by parliament and connected with election of the members of National Assembly or who is FOUND GUILTY of such an offence by the courts trying an election petition are disqualified from contesting an election as members of parliament including voting for period of five years. This is also in line with the provisions of the Electoral Act No. 12 of 2006 section 19 (6) and 22 (b)

Therefore, we are unaware of any judgment passed by the courts CONVICTING OR FINDING guilty individuals whose elections have been nullified. The three seats out of four supposed to be re-contested on September 5 were nullified by the Supreme Court and this court never ruled that the concerned persons were Guilty or Convicted hence could not re-contest their seats.

Highest court in the land being used by political machinery

It is amazing that this same court today turns 360 degrees round through a statement that the concerned persons are ineligible to re-contest their seats. This is unfortunate and is lowering the standing of the Supreme Court which is the highest court of justice in the land. Public Perceptions are now that this court is being nurtured to settle political battles. How does the court question an election and nullifies a seat without any petition filed in the High Court in accordance with the provisions of section 93 of the Electoral Act No. 12 of 2006 and who is the complaint? Where has been the Supreme Court all along when persons whose election has been nullified were recontesting? What has prompted the Supreme Court to issue a statement rather than a judgment on the matter on the eve of the nominations?

It is clear that the Supreme Court is now undermining the Electoral Commission of Zambia. The statement from the Supreme Court was, in fact supposed, to have been issued by the ECZ upon receipt of court judgment interpreting the provisions of the law. Since, the Supreme Court has just issued a statement and not judgment; it is not binding on anybody but just an opinion from the Court.

Regarding the provisions of Section 22 and the response given by the ECZ on the need to understand the section to be read in tandem with provisions of Section 104, we are convinced that Section 22 and 104 respectively have not been followed as a result of Courts not passing clear judgments. We have studied the argument from both sides and realize that there is no need to throw such mud on the Electoral Commission of Zambia (ECZ) and that some of the sentiments are based on partisan interest and subjective view rather than objective and professional opinion.

Moving Forward

In appreciating and respecting people’s concerns and their democratic rights to provide checks and balances in the work of the Commission, we would like to advise that this debate should bring out the best for the improvement of our electoral process rather than aiming at annihilating individuals either in the political arena or at the Commission.

We therefore, find it unfair and unjustifiable for anyone to target the Commission’s Director, her staff and call for her resignation. Unjustifiable in the sense that the same people who had been saying that the ECZ is inert, were either mute or castigated the Commission when it censured the parading of chiefs at political party rallies which is a breach of the Constitution, Electoral Act and Regulations.

ECZ highly respected in the region

It is like the biblical saying of a “prophet without honor in his/her home country” is being fulfilled in the case of the ECZ. This is so because in the entire sub region; Zambia’s Electoral Management Body (EMB) is among the few that are highly respected and envied. ECZ is one of the few EMBs that has shown some resemblance of autonomy, impartiality and independence in Southern Africa and has endeavored to promote the spirit of consultations, transparency and openness to all stakeholders.

Since 2011, the ECZ has seemingly reclaimed public confidence and trust and it will be sad for the country to lose such an honor just for political mileage and benefits. There is need therefore, to give credit where it is due.

It is for this reason that we appeal to all stakeholders to exercise great restraint towards their attack on the Commission and if there are some weaknesses they have observed in the enforcement of the Electoral Code, Electoral Act or indeed any regulation, we implore them to use the relevant structures. Most of the complainants are part of bodies such as National Voter Education Committee (NVEC), Political Party Liaison Committee, Conflict Management Committee among others.

Regarding the issue at hand, we feel that other avenues could be used to address the lacunas and other weaknesses in the Act, its administration and enforcement. In this regard, we call on the PF government to implement its promise in the manifesto of reviewing the Electoral Act No. 12 of 2006 which will go a long way in strengthening our electoral process and ensure that we continue to enjoy our peace and security as a country.

Impartial fight against corruption

We also call on the Anti-Corruption Commission (ACC) to be proactive in the fight against Electoral Corruption. This could be a sure way of averting the costly by-elections. The judiciary too, should play its role in enforcing the provisions of the electoral Act vis-à-vis the prevention and fight against Corruption. It has become so costly to fight historical corruption in this country. Therefore, the call for a strengthened electoral process in Zambia requires that all stakeholders play their role as provided for by our electoral laws.

As organizations concerned with the electoral process in Zambia, we feel satisfied with the explanation by the ECZ why the Commission is unable to enforce provisions of Sections 22 and 104 of the Electoral Act No. 12 of 2006. It is for this reason that we stand with the ECZ shoulder to shoulder in its efforts to restore impartiality, confidence and integrity in the electoral process.

We pray for level headedness when debating the issue at hand and also fair criticism on the Commission.

Finally, if the reports we have heard that ECZ has suspended the nominations and holding of the three by-elections are true, we wish to commend the ECZ for the move is a welcome move under the given circumstances. We would have wished to see to that even Mkaika is suspended until these issues are resolved because holding one by-election will give undue advantage to some political parties.
We are keenly watching the development in the electoral process ahead of the September 5
We wish to indicate here that we will soon launch an Electoral Support Network, which will be a civil society consortium concerned with election and electoral processes.

We Thank You!

1. Foundation for Democratic Process (FODEP)
2. Southern African Centre for the Constructive Construction of Disputes (SACCORD)
3. Anti Voter Apathy Project (AVAP)
4. Operation Young Vote (OYV)
5. Young African Leaders Initiative (YALI)

68 COMMENTS

  1. They just want to be head. Why not just keep quite if you are not sure of what to say. Everyone thinks they are better at interpreting the law.This country, Awe Mweeeee!! Shaaaaaaaa

    • That is the chaos PF is bringing because itself is a chaotic party. The bemba have a saying that the fish starts to rot from its head, therefore, the PF top leadership is now rotting and the lower sections of the party are just all over in confusion. I still believe that PF is panicking so much that they now want to use backdoor tactics, ambushing laws and taking chances with legal and political gambling and if people keeps silent they want to get away with it; sadly enough UNIP tactics are too old fashioned to work.

    • Judiciary lost credibility ages ago. This is old news.

      Please tell us something we don’t know.

      Satas damage control via Chikopo has repeatedly been rejected.

      At the end of the day, we really don’t care.

    • It’s is called a debate. It is healthy to air views. Don’t expect them to just sit back. Accommodating different points of view will help perfect our voting systems and acts and associated laws.

    • Say no to corruption. The people that were corrupted by Dora, Mwale, SIlilo, Mtolo etc are still enjoying what they were given. So these corrupted voters still feel that they ‘owe’ these rotten MMD and UPND candidates their sacred votes. Shame on all the supporters of the corrupt

  2. They’re losing credibility because they’re seen to be under the thumbs and control of ba Sata & co.They let the decision on RB’s passport and order to travel be disobeyed and our judiciary never punished anyone.

  3. even if you were to put Nevers Mumba or HH as your CHIEF JUSTICE and your ZWD as your supreme court, PF is governing the country till 2016.

    it’s good this government has allowed some issues have been allowed to be debated.

  4. Enka,100% correct,ecz is working under difficult time but they have deferred Winter & his team.its now very clear even to the blind why ACJ,madam chibesakunda has been occupying the seat,to be used to settle political scores.Ftj (mhstip)tried it on kk but were is he now?Zambia is still their.
    If the laid down procedures are not to be followed,then let all civil servants do likewise,why should the same laws have duo interpretation?

  5. The only hope PF has now is the rural vote. PF wont produce an mp LUSAKA. Please expel Chilalanga MMD mp who joined satas cabinet. We need to show PF the grave is near.

    • PF IN LUSAKA STILL HAS ALOT OF SUPPORT. YOU WILL JUST EMBARASS YOURSELF IF YOU CREAT A BYE ELECTION IN CHILANGA. PF WILL TAKE THE SEAT.

    • Rural vote? PF were given a kicking in Lusaka West. Why else are they trying so hard to prevent opposition candidates to contest in Petauke, Mulobezi and Malambo? PF is finished. It is at most a one term party. God forbid that anything were to happen to the President before 2016 you will see how the whole party will disintegrate. There will be civil war in PF pitting Kabimba and Mmembe in one camp , GBM in another and Chikwanda and his camp to protect the Bisa interests. PF is a powder keg waiting to explode. It was a mistake to put this goons in government . They are directionless louts and incompetents.

    • You are dreaming! If the opposition is popular enough let them not cry for Dora, Maxwell or Misheck Mutelo- these fellows are corrupt. Let them field any other candidates in Petauke, Malambo and Lukulu west and see if they will go on to win these seats since they claim to be very popular in these areas.

    • @Checha, why should PF pick and chose parliamentary candidates for the opposition? If Dora, Maxwell and Misheck are corrupt why the blood hell did your PF not sue them as criminals? Why did you opt for a civil case? Please shut up and go to hell! The people of Lukulu West wanted Mutelo. He beat your PF candidate 3 to 1. It is silly of you to want to chose the opposition’s candidates. You are a finished govt and you know it. Honestly how can a whole govt be quacking at the sight of Dora Siliya? No wonder you have resorted to using your President’s relative in the Supreme Court to maintain power by crooked means! Low down dirty shame….that’s what PF is!

  6. The Judiciary is like a puppet with someone pulling strings from the background n they r dancing 2 some higher power. ECZ is being impartial in their statements but the PF is making their work impossible.I voted 4 PF and I never subscribed 2 some of this nonsense that is being undertaken.
    Lets respect the Rule of Law and rise above politicking and let the various institutions maintain their independence and integrity!!!The Judiciary nids 2 b rid of puppets n clowns…

  7. @kwekwe
    No one wants to be heard wen things ar not ok we need to speak so wat the civil society is sayn is their opinion and i dont think its right for to discredit it cos u ar affiliatd to a polical party involved.first and foremost were was the supreme court wen mtolo phiri was filn in his nomionation? wer caught sleepion they honstly cant wait to be told by kabimba to nullify elections after alot of money has been spent oredy and its not their money its our money the tax payers.this must be a joke they shud have stopd him in the first place.so wer is credibility in this case were you wait for some one to tell you what to do and it means you cant think for yourself you need a person like wynter to tell you wat to do.HAD PF WON ALL THE SEATS THEY LOST WOULD THEY HAVE DONE THIS HONESTLY?

  8. Sata’s criminal bound baboon aunt is to blame,what a shameless old woman another imbecile called kabimba has finished ARV’s in hospitals and symptoms of madness are conspicuous.

    • Don’t be so personal, just discuss issues. How would you feel if we told the whole world that you have epileptic seizures- ulapona?

    • If he were in a high-ranking public position then yes, he would have to disclose a debilitating condition such as epilepsy, ukupona.

  9. Its a bitter pill to swallow but thats the only treatment available just take it with alot of water you will be fine. We all know the truth but its only that we are trying to ignore it. Its like we are just in denial. At first we were all stuck including the ECZ, we were waiting for courts to repond and now they have responded let those not happy with the courts respnse engage the courts or appeal. Thats the only good part of zambia. Problem with opposition when you lose you demonise the court and you win the same becomes credible. Once again i urge u just engage the courts like what your friend pf did and the courts will hear your side thats if there is sense in your points of which i doubt. Just crying in the media wont help you.

    • The SC has responded with “statement” whose value its equal to “0” for legal purposes. Where are the judgements which refer to specific issue?

    • @HH
      The Law is made by Paliament, enforced by the Police and interpreted by a competent Court. A Judge (not even the chief justice) can give BINDING legal interpretation if they are not sitting in a Court of LAW. This can only happen if there is a case in court and two sides present legal argument againt each other and then a High Court or Supreme Court making a ruling. If the ACJ interpretes the LAW outside the Courtroom then it is their own opinion of the LAW that they have given and therefore it is not binding on the ECZ or anyone (LAZ clarified this and anyone who has done A level LAW tell you that). Now the PF want to use the opinion of the ACJ to force ECZ to bar opposition candidates which is not right in law. They should simply ask the high court to submit the required report

  10. Judgment or court opinion? The real issue is here is disqualifying candidates determined to have engaged election corruption. Secondly, certain criminal records also exclude potential candidates in a democracy. Civil society is not a substitute for government. Government must be allowed to work efficiently. Political parties must field new candidates and fight for victories. At least for one term of office. Personalizing contests would weaken democracy.

    • We know who you are and stop the rubbish if you cannot understand the law. We are getting tired with irresponsible statement.

  11. I cant trust anyone at the moment even civil societies were also eating with dirt hands. Its time to wash your hands.where were you when RUPIAH was breaking all those laws? PF,MMD,JUDICIARY,ECZ,CIVIL SOCIETIS ETC you are them same.
    The all issues started when E.C.Z condemned a certain CHIEF for attending PFpolitical….That LAW were not put yesterday, it has been there since 2006.
    the bigest problem is E.C.Z who were failing to interprate it, everything happens for the reason and have got its end. Am happy now that no one will now take any law for garanted. If this is the way E.C.Z have been bahaving like the way they are behaving today, we would have been having fair elections. lets just do what is right without looking at any body’s stutars in society.

    • @D.Kamenga
      Nullification of elections on the grounds of corrupt activities does not translate into the CONVICTION of the winning candidate nor does it translate into that candidate being “REPORTED GUILTY”. The corruption or illegal activity could have been done by anyone and it is against the principles of LAW to punish someone for a crime they did not commit. Therefore, only a report from the high court registrar can carry the legal weight to bar a candidate. That report will contain facts of the case and exactly what lead a court to “accept” the presence of corruption. We know that reports by M’membe can twist facts to suit him and the DPP forges court documents so you can’t trust headlines in the Post. The ECZ is right and should only act if it receives a report from the high court

  12. First and formost,@ kwekwe you will hung your self the time you will come to know that Paya Farmer is fading off.To the people of zambia,let these guys from Paya Farmer party celebrate today but it should be a great lesson to us voters.Time is ticking and sooner or later 2016 will come and no one will talk for us.To remind you Paya Farmer this is not Zimbabwe but its our Zambia.

  13. Makasa we have laws in ZED they have to be followed , people didn’t vote for the government to be breaking our laws, this is serious next before you know Sata will be
    Trying to give himself a third term , the law protects us and guides the country, that’s what lead us to have peace we stand to lose a lot and we definitely don’t want to be at the mercy of selfish PF . Besides people are already tired of elections, PF needs to sense that and stop these wasteful spending they used to listen when they just came into power now they are proud always on the defensive , never consult

  14. This is the outcome of voting for a grade 2 as President and dull ‘lawyer’ as Minister of Justice;not to metion a retard as Chief Justice.Total madness.

    • To this day, no one has pointed me in the direction of Mr. Sata’s biography. Official or otherwise.

  15. WE NEED JUDICIAL REFORMS ASAP,THE RULE OF LAW IN THIS COUNTRY IS BEING ABUSED BY THE POLITICIANS BY THINKING THEY ARE BIGGER THAN THE COUNTRY JUST COS THEY ARE IN GOVT TODAY.ABUSING OF AUTHORITY IS A SERIOUS OFFENCE.KABIMBA WATCH YOUR BACK .

  16. A very hollow and parochial statement without substance.Any way it is democracy and people are free to express themselves.President Sata is a proper democrat.People can insult him and he is able to tolerate ? Mr President may God bless you always…you are the Father of the nation and continue being accommodating.

  17. PF can never win Chilanga. Even Mukata as MMD is a fluke. UPND will just call back Capt Moono. If you are in doubt ask Magande.

  18. Induced by – elections kill democracy, maim, wound and change people’s aspirations forever. But you wouldn’t know that from The Post newspapers front page article about PF manoeuvres to take Zambia into a one party dictatorship. Rather, this a story the Mmembe uses to romanticize the PF perpetrators. Mmembe no longer controls the Media Mountain and he knows it. I am appealing to well meaning Zambians to seriously consider the idea of pirate radio stations where people can freely express their views unfettered by the PF government.

  19. Rubbish staff, why are those candidates not arrested and convictated for corruption charges when thier election are nulified

  20. I wonder why people kip on saying pf stil has got power. I dnt think there is a big problem. The fact that they say pf is still strong means that the opposite is true. We can’t debate on whether one is a white man or not unless he doesn’t present a clear picture. Pf is quickly losing popularity and the best to do is not to counter react by word.

  21. No matter the amount of defensive machanism u will put in place it is immoral to allow dose whose seats were nullified 2 recontest. We re fighting corruption yet u have some public institutions condining it. Bravo to u o that intieted this debate.

    • Remember even Adolf Hitler had admires. Think through your thoughts before you post them. You maybe admiring a lunatic.

  22. What the civil society is saying is best example that thinking is difficult for a lot of people. Once an election result has been nullified because of corruption it follows logically that either one or both parties involved are guilty of the crime. If the person is ruled to have used corrupt means to win an election that person should stand barred from re-contesting period.

  23. WE ARE EVEN LUCKY THAT WE ARE ABLE O USE SOCIAL NETWORKS TO INSULT OUR LEADER WHICH CANNOT BE ALLOWED EVEN IN DEVELOPED DEMOCRACIES. PLEASE LET US SHOW SOME CIVILITY BY RESPECTING OUR LEADERS NO MATTER THE CASE AT HAND. YES, WE MAY HAVE DIFFICULTIES WITH SOME OF THE HAPPENINGS IN THE GOVERNMENT AND WE MUST APPRECIATE THAT WE ARE ALLOWED TO TALK ABOUT THEM. NO GOVERNMENT WILL EVER BE PERFECT AND OPPOSITION PARTIES SHOULD CAPITALISE ON MISTAKES OF THE RULING PARTY BUT INSULTS ARE NOT A SIGN OF DEMOCRACY AT ALL. THE CONSTITUTION IS YET TO BE SIGNED BY THE PRESIDENT. LET US REVISIT SOME OF THESE ISSUES. THERE HAVE BEEN SO MANY BAD LAWS IN THIS COUNTRY AND THESE WILL NEVER BE CORRECTED BY INSULTS. PLEASE ZAMBIANS, LET US BE CIVIL IN THE WAY WE HANDLE THINGS – GREAT WE ARE ABLE TO TALK FREELLY.

  24. Yes indeed, insults are not a good way of resolving matters. But the Paya Farmer Party must be reminded that time is running so quick and people are watching each of the the steps and actions they are taking. They must be reminded that Zambians cannot be silenced like it is in the countries they have been lately visiting.

    What the Paya Farmer is doing is not surprising but expected. What can one learn by associating with countries like North Korea, Cuba, Sudan and Palestine? Paya Farmer’s admiration of these Rogue states is clearly showing it its actions. 2016 is fast approaching I will be there to witness the humiliation.

  25. Kalumba,if you think of a new constitution under poor farmer,then wake up and face the reality of what is happening.forget about new constitution.mcs promised to uphold the constitution,has he done so?

  26. Fish rots from the head.

    If the head of a state does not follow the rule of law, and Judges ignore the law and sit in the lap of executive to be fondled at will, man on the street take the law in his hands.

    Those who are commenting praising such rulings will be the ones suffering one day.
    A man without courage is a slimy insect, lived and died without notice.

  27. @Kalumba, freedom of speech in Zambia, you must be dreaming. I live in Texas, USA and can stand up any time and say anything about Obama without any fear. Can anybody do that without being slapped [insulting president charge]?
    Zambia has moved back 30 years to 80s when I decided to leave and settle in a country with rule of law, good to raise children and enjoy whatever little I earn than living under repressive one party state. Visited Zambia for many times after MMD took over but not much changed for the majority of population but with the coming of PF little that was achieved under MMD is lost overnight.

    Chibesakunda is my age mate and I am ashamed of her.

  28. Whts argument?Precedent alredy set Mabenga ws bared frm contestng during MMD tenure ofice coz coruptly used CDF funds fr campaigns.Now yr problm evnif u complain ECZ knew al this bt foolishly kept mute!Why?Suportng bedfelows MMD fr corupltly thought to hoodwink us but Isaccs & Sylvia & top oficials re in limbo on how to explain the mater at hand.Was it ECZ opotunity to favour old felows Isacs anwre this question.U know it borders on yr incompetence thts a criminal error fru Isacs & yr coleagues.Resign now & quickly!Go go zwa zwa u re highly incompetent with yr duties yr core function failure to uphold regulations.This is not time to manupulate electoral fraud frr yr previous employers MMD!

  29. So u continue moderatng articles b fair Lusaka Times or we stop brousng yr magazine without readers views whts yr problem?

  30. This is really the end. What is wrong with our politicians? The same foolish behaviour sure. Zambia is now Animal Farm no doubt. Animal mentality sure no this is too much

  31. @nameemail. The issue is not about criticising the government but the insulting language being used by some. Yes, they do criticise Obama and Cameron in USA and Britain respectively but I have never seen or heard an insulting criticism in these countries like some of the insults being used here because of the level of civility that is exhibited in these and other countries. If Chibesakunda is indeed your age-mate then you understand what an insulting Language means in an African society. Do you recall how we criticised HH over is his language against RB?. I hear that you are very happy there in the USA – you are lucky that you can boast of that. Help us contribute to the development of democray in a civil way for most of us who only have Zambia to look to and not those who even have USA

  32. The army should come in to protect the constitution before the dogs completely salvage it. Me and women in uniform, you are our only hope. Dogs are presiding over the affairs.

  33. When sin entered man, he lost perfection. So why are you crying for spilt milk? The courts nullified the elections of some MPs due to corruption or electral malpractices and you want them to recontest. Seems man can never learn from his mistakes! Kudos to Kabimba for being proactive.

  34. But why did the ECZ allow the Chipata central by-election to go ahead with same candidates ( mr Phiri) believed to have had issues?

  35. It is sad indeed to see what power can do to certain people and some people never seem to learn; life in the world of Politics can – some times – be very short and hurting.

    We have seen and read – There will always be something to follow you.
    Ba KK, FTJ and RB, cant say much about Mwanawasa

    Dirty Game

    Yu hear people saying 2016 is coming, so what? It tells me people will be haunted right into their graves. Shame.

  36. James, sorry the army does not protect the constitution but actually throws it in the dust bin. Ii that is what you want then just look at what has happened in Somalia and what is currently happening in Egypt! You also want to experience that? Then you do not stay in Zambia or you probably do not have relatives in Zambia because if you had you would have thought of their fate. Do you know what happens in Eastern Congo or Goma area?

  37. @Dr
    wats your position on this subject? ar u sayin yes or no to the statement coz it sims lyk u ar 1 of the boat pipo

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