The day a Judicial Spokesperson decided to shine
Mr. Terry Musonda, a spokesman for the judiciary of Zambia issued a statement in which he purported to clarify the issue that had engulfed our nation in recent days. The issue has been whether a respondent in an election petition, whose seat gets nullified, by the High Court should also, by strength of the same judgment, be barred from re-contesting that seat.
Before Mr. Musonda’s press statement, several stakeholders had given their position on the matter. The Law Association of Zambia (LAZ) had issued a statement to the effect that without a report from the High Court instructing the Electoral Commission of Zambia, the ECZ cannot on its own bar any candidate from contesting. The ECZ itself had issued similar statements stating that according s.22 read with ss 104 to 107 of the Electoral Act (2006), the elections body could only act after it receives a report from the High Court specifically addressing these matters. In the absence of such reports the ECZ cannot bar any candidate.
I had written earlier, supporting, the ECZ position. I had also indicated that indeed with regard to s.22, there are two situations under which a candidate could be barred. First, it could be through a conviction for electoral corruption and secondly, through a report from the High Court specifically made for this purpose. The Patriotic Front, however, with their Secretary General Mr. Wynter “One-Party State” Kabimba have piled even more pressure on ECZ to block these candidates from re-contesting their seats.
By raising these issues, the Patriot Front has been targeting MMD’s Dora Siliya, Mtolo Phiri and Maxwell Mwale whose seats where nullified on account of electoral corruption and other illegal activities. Indeed, all these candidates have varied degrees moral culpability with regard to the nullified elections.
Why the Press statement from Judiciary made no legal sense
The purported statement from the judiciary signed 8 August 2013, by Mr. Terry Musonda makes no legal sense at all. President of the Law Association of Zambia, Mr. James Banda, has been swift to condemn this press statement and to declare that this statement does not have the force of law and as such should be ignored. For the following reasons, I would agree with LAZ.
Terry Musonda overstepped his mandate
First, Terry Musonda has overstepped his mandate. The mandate of a spokesman for the judiciary is an honorable one. It includes the duty to run the public relations department of the judiciary. It must be mentioned here that the role of such an officer is to be the support staff to the judiciary in general and specifically to all the players within that system. The judiciary does not just comprise the Supreme Court but rather the whole hierarchy in our court system. The spokesman serves these men and women who serve in the judiciary. Among other things, Mr. Musonda should be looking at ways to interact with the public and with the media. His mandate does not include making pronouncements that border on constitutional and administrative law. In that role of spokesman for the judiciary, his role does not extend to serving as a judge or as a court.
Terry Musonda’s unbalanced view of the High and Supreme courts
Second, Terry Musonda has a very unbalanced view of the role of the High Court and indeed the Supreme Court with regard to elections. As a support officer, and not a principal judicial officer, Mr. Musonda should have exercised restraint not to bloat out a clear misunderstanding of the High Court’s role. Obviously, he misses a few things over the judiciary he purports to be speaking for. In our system of government the Judges play several roles. Their primary role is that of being judges or adjudicators. Their courts have inherent jurisdiction to resolve legal matters brought before them. Additionally, judges have a statutory legal role as well.
However, in addition to this judicial role, several judges do have an administrative role to play within our democracy. For example, when the Chief Justice serves as the returning officer for presidential elections, he is not doing so in his judicial capacity (constitutional law) but in his administrative capacity (administrative law). In the same way, the Electoral Act 2006 grants the High Court some administrative duties to make a report on illegal practices it finds during a petition and send that report to ECZ for further action. Terry Musonda cannot say that this administrative role has been overtaken or superseded by the judgment of the Supreme Court. When the Supreme Court hears an appeal of a petition, it is doing in its judicial capacity. However, it still remains within the administrative capacity of the High Court to make the report to the Electoral Commission of Zambia if the High Court deems so.
If Terry Musonda meant that the Supreme Court rulings did in fact, curtail the administrative role of the High Court in delivering these reports, then he is insolently mistaken. Just where he got the idea that Supreme Court ruling invalidates the power of the High Court to issue these reports is a mystery perhaps that can only be resolved by asking midnight oil he burnt when he crafted this badly written statement.
Terry Musonda’s overkill
Third, Terry Musonda then goes for the overkill by stating the obvious. It is true that the Supreme Court rulings are binding on all. But it is not only the Supreme Court rulings which are binding. In fact, strictly speaking it is the rulings of the High Court which are binding unless challenged by the Supreme Court. The issue here was not that any one had been disputing the ruling of the Supreme Court. There was no such thing. Mr. Musonda dreamt up this matter and decided to include it in his statement at midnight.
A very senior member of the Zambian High Court chairs the Electoral Commission of Zambia itself. Deputy Chief Justice Ireen Mambilima as chairman of the ECZ is very aware of the nuances that Terry Musonda seems to be instigating in his press statement. The thought that a commission chaired by his boss could not understand its true mandate is indeed scandalous.
Rulings and not press statements are legally binding
Fourth, Terry Musonda, is commenting on some issues that are subject of a court action. This does not appear too well that a non-judicial officer is making pronouncements on some matters that are before a competent judge. Musonda need reminding that while the judiciary is an institution, the legally binding declarations of the judiciary are not press statements, but rulings of a competent court. Regardless of how Musonda thinks of himself, he is not a court and in fact, the judiciary he is claiming to represent is not the court of law. There is nowhere where anyone refers to the ruling of the judiciary. We always refer to the rulings of the courts. And so Musonda is wrong to the extent that he thinks that speaking for the institution of the judiciary gives him license to comment on matters that can only be handled by the competent court.
That being the case, Mr. Terry Musonda and officers like him do have a role in our institutions. These institutions can only run effectively if support staff are raising good standards in administration. As for this particular episode, Mr. Terry Musonda should be ruled offside. Or may be we should say his boss the honorable acting retired Chief Justice has gone beyond offside and what she really needs is red card. Her game should be over.
(c) 2013, Elias Munshya wa Munshya is not a member of the Zambian Bar. Specific legal advise should be sought from members of the bar. This article is for educational purposes only and does not intend to convey legal advise.
Source: ‘Elias Munshya wa Munshya Culture, Politics, Law & Theology‘
Ka Terry grounded. A little knowledge is bad and dangerous
Terry is a small pawn in this game, the young man was just doing as instructed by someone from `above`.. he is good boy i know him personally
THE PROBLEM IS WINTER,AND THIS IS TURNISHING THE PRESIDENTS IMAGE.KABIMBA HAS ONLY BEEN A CHOLA BOY.AND CHOLA BOI SHOULDN T DESTROYE THE WORK OF THE MASTER.
Mr Terry Musonda please, why embarrass yourself in things you do not understand. You will be fired by the Presido just like he did to Mr. Effron Lungu. Do not do things you dont understand please next time watchout.
PRESIDO HAS TO FIRE WINTER.THATS WHEN THINGS WILL START MOVING IN PF
If you have a justice minister who can not interpret the law,the whole country suffers.Good article.
This is a pure display of desperation by the PF.It confirms that these human beings are ready to do anything to hang on to power even when people say they do not need there services.
i can see pf carders and op officers posting silly comments blaiming mr terry for the well written good article.1 and 2 its you to watch out,2016 is around the corner,mukabutuka mwapya.
Kabimba is always right!
KAMBIBA MAKES SATA LOOK DESPERATE WHEN IT SHOULD NOT BE SO.PUT THE RIGHT PIPO MR PRESIDO.WHWN VJ MADE AMISTAKE,HE WAS KICKED OUT BY MWANAWASA.
BLASPHEMY REPENT
Kabimba is always right! NO ANIMAL SHALL SLEEP IN BED (with bedsheets)
Mpanga ya Mambwe
Chibesakunda and Sata are inseparable and that is how state counsels loose reputation. She is quiet and can not talk because of the flow of cash in her pockets which they shall later on share with somebodies children.
What do u expect from kabimba who doesn’t understand law? Well articulated Munshya, poor Terry should resign!!
sound as the arguments may appear, they still lack substance, unless u can prove 2 me tht the PRO made tht statement without the blessings of the entire Judiciary. otherwise u ve very lttle knowledge of PR.
HERE IS HW IT WORKS
1. the entire org will met and discuss an issue
2. a conclsion will be made by all involved
3. a PRO will b given the mandate 2 communicate the collective position 2 to public
So prove 2 the nation y u r singling out the PRO to be @ fault here???
ignorance is no diffence so kep it to yoself.
Please use your brain for thinking and not your blood.
Questions of law are resolved through rulings of the court NOT press statements no matter who sanctioned it! Get that point into your head!
The argument is well weighed. But it is wrongly directed. Terry Musonda has no ability to interpret the law as stated in that statement. He wrote no bit of that statement. His only role was to deliver it to media houses. The people at fault here are his bosses. Epela.
fire that chap..he’s from the family forest…
It all comes back to same thing I always say on LT.Winter must step down as Justice Minister.There is alot of conflicting interests from the PF and the judiciary which he will always defend no matter how wrong it might be.Any defense he puts up is tantamount to threats because he is the head of the judiciary.
In fact, the second scenario presupposes that the candidates himself/herself was directly involved in corruption. this position, however, has challenges in the sense that civil litigation does not require a high burden of proof while criminal matters must be proved beyond reasonable doubt. the more reason why people should only be barred due to an outcome of a CRIMINAL PROCEEDING. simple and straightforward.
ELECTIONS WERE NU;IFIED DUE TO CORRUPTION.IN FACT THE COURT IN ITS RULLING HAD INDICATED HAT HON.MWALE WAS INVOVED IN CORRUPTION.JUST WAIT THE THREE WILL BE ARRESTED FOR CORRUPTION SINNCE THRE IF PRROF FROM THE JUDGMENT.THE THREE WILL NOT BE ALLOWED TO CONTEST TRUST ME.IF THE THREE WERE IN eNGLAND THERE COULD NOT EVEN TRY TO RE CONTEST JUST ON MORAL GROUND.
i KNOW THIS SITE HAS BEEN INVADED BY THE ENEMIES OF THE STATE FROM TAMBEMBWA WEB SITE.SHAME ON YOU WHO SUPPORT CORRUPT ELEMENTS.MMD USED OUR MONEY TO CAPAIN IMWE MWEBANTU CAGE THEM.WHY DO ZAMBIANS ENCOURAGE STEALING PUBLIC FUNDS IAM DISAPPOINTED EVEN THE MAN OF GOD IS SUPPORTING CROOKS SHAME ON US.MY ADVISE IS SIMPLE POLICE CAGE THESE MMD CROOKS WHO COULD EVEN GO TO THE EXTENT OF BRYING BILLIONS OF KWACHA WHAT PROOF DO YOU WANT
Iwe CAGE ALL
That petition was a civil case. so the proof the court relied on was not as strict. thake them to court in a criminal case and then stop them from contesting. . .
ELECTIONS WERE NU;IFIED DUE TO CORRUPTION.IN FACT THE COURT IN ITS RULLING HAD INDICATED HAT HON.MWALE WAS INVOVED IN CORRUPTION.JUST WAIT THE THREE WILL BE ARRESTED FOR CORRUPTION SINCE THERE IF PROOF FROM THE JUDGMENT.THE THEY WILL NOT BE ALLOWED TO RE-CONTEST TRUST ME.IF THE THREE WERE IN ENGLAND THERE COULD NOT EVEN TRY TO RECONTEST JUST ON MORAL GROUND.
I KNOW THIS SITE HAS BEEN INVADED BY THE ENEMIES OF THE STATE FROM TAMBEMBWA WEB SITE.SHAME ON YOU WHO SUPPORT CORRUPT ELEMENTS.MMD USED OUR MONEY TO CAMPAIN IMWE MWEBANTU CAGE THEM.WHY DO ZAMBIANS ENCOURAGE STEALING PUBLIC FUNDS IAM DISAPPOINTED EVEN THE MAN OF GOD IS SUPPORTING CROOKS SHAME ON US.MY ADVISE IS SIMPLE POLICE CAGE THESE MMD CROOKS WHO COULD EVEN GO TO THE EXTENT OF BURYING BILLIONS OF KWACHA WHAT PROOF DO YOU WANT
But why are you writing in block letters, are you insecure?
Watch all the comments, they are all in small letters, do you think you will be heard when its in block letters?