PF legal counsel Tutwa Ngulube
PF legal counsel Tutwa Ngulube

The misleading and dangerous statement by Mr Tutwa Ngulube, the PF Legal Advisor that “the inauguration of President-Elect Lungu should go on, with or without the petition” (Lusaka Times date 19th August 2016) must be challenged and corrected. Mr Ngulube is a lawyer and an officer of the Court who must be careful not take advantage of ignorant citizens by deliberately inciting them. At a time such as this wisdom is expected and is a better quality to pray for.

MISLEADING DECLARATION

The statement is misleading because it is not the law; it is dangerous because it has sown a rebellious seed among the public, especially PF cadres, to get them to be ready to rise up in the event of an adverse decision by the Court. The argument that there is no provision in the amended Constitution under which the swearing in of a President may be stopped is patently flawed. There are other provisions and precedents which militate against his generalised conclusions. In addition to the provisions under the Amended Constitution there are also Court Rules that may be used to augment an argument. For instance the English Rules of the Supreme Court (White Book 1999), which are still applicable in Zambia, guide first that petitions are not pleadings (as opposed to, say, a Statement of Claim) and secondly that they are to be dealt with according to the specific subject matter brought before the Court and the applicable Rules of Court. For instance the handling of a petition under liquidation and remedies thereof is different from that for dissolution of a marriage. I thus challenge Mr Ngulube to indicate which law petitioners of elections in Zambia should follow other than the Electoral Law and its Rules and Regulations. I contend that the holding of the presidential election on 11th August 2016 triggered the petition, which stands in the way of the swearing in until it is resolved. While the Constitutional provisions are the anchor of the case, it is the electoral law that must be applied to resolve any electoral disputes. What has happened is to remove the jurisdiction of the Supreme Court as the court of first instance for presidential elections and transfer the jurisdiction to the Constitutional Court; everything else remains the same: the law, the procedures, the Rules and the reliefs and/or remedies. Mr Ngulube has not only misled himself, but has misled his cadres and the general public. His dangerous statement is another Armageddon for it has sown a rebellious seed among the public, especially PF cadres to get them to be ready to rise up in the event of a decision by the Court that does not agree with Mr Ngulube’s campaign message!

There are several reasons why an election petition results in nullification. The Learned author Lord Halsbury, in his Halsbury’s Laws, has explained this issue very well in his treatise on elections. He has listed and explained the grounds for petitioning, which are many and varied. They include bribery, treating, corrupt acts, illegal practices, publishing false statements in respect of other candidates, undue influence on voters by poorly timed but numerous charitable or philanthropic acts, interference with public meetings and, more importantly, breach of the electoral law as to elections. All these are on our statute books today, and are reinforced by the Amended Constitution assented to on 5th January 2016. Of course evidence is always demanded by the Courts!

DANGER IN THE AIR

Halsbury’s conclusions are different from lawyer Ngulube’s, because he says that if one provided credible evidence then such an election should be avoided (another term for nullification, which term is also found in our Electoral Act); to avoid connotes that the candidate cannot be sworn in. If our Electoral Act is put side by side with Halsbury’s we shall find that it is a carbon copy. I call upon Mr Ngulube to observe his own advice that “let us all wait for and respect the Constitutional Court to determine the matter…”. I agree, but that is Doublespeak for he should have not made his flawed statement in the first place. In our polarised atmosphere it is dangerous to mislead the public. I am sure that, as a lawyer, Mr Ngulube remembers the case of a former Chief Justice of Zambia, the Learned Mr Justice James Skinner, who was hounded out of office by party cadres and run away to Malawi. Mr Ngulube’s flawed arguments may tend to incite naïve members of the public. He has just been elected to Parliament; the Kabwe voters respect him and will likely believe whatever he says, even flawed legal arguments.

I advise Mr Ngulube to discard his blind loyalty but behave as a new broom, providing good leadership. The best and urgent advice he should have given was to his Party President, the President-Elect, to assist him to respect the constitutional transition in the Amended Constitution that he voluntarily assented to. Clearly Mr Ngulube has not carried out a proper job of advising his Party President. Even if his President was likely to ignore his advice as he has been doing with the Attorney General’s, Mr Ngulube should have tendered his advice and be vindicated later. It is dangerous to seek public support in order to become popular.

Although the Secretary to the Cabinet has belatedly called off the swearing in ceremony, much harm has been done, whose final chapter we may not predict. Let us pray that our citizens will not take the law in their hands, when the decision of the Constitutional Court does not go their way as happened in the James Skinner incident. Mr Ngulube, the ball is in your court to pre-empt the undesirable reactions.

GODFREY MIYANDA,
BRIGADIER GENERAL,
A CONCERNED ZAMBIAN

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34 COMMENTS

    • The statements by Tutwa have serious implications on the president’s moral campus. He has a history of ignoring laid down procedures. His refusal to hand over power to the speaker is gross abrogation of the constitution by a person who has sworn to uphold it. It is an embrassment to the so called learned fraternity. It is a blantant disregard of the law only comparable to the hooligans of KMB , Main Masala and Kulima Tower. Perhaps we need to pay attention to the bible in particlar Job 32-9 Great people are not always wise! I am quoting the bible because it is useless to quote the constitution now! In all this nonsense the so called humble one is quite.

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    • THE SPEAKER should be very CAREFUL for he EXPOSES HIMSELF TO INDICTMENT FOR his PERCEIVED ACTION OR INACTIONS!!! FOR ALL CRIMES COMMITTED AFTER LODGEMENT OF PETITION, IN THE NAME OF THE PRESIDENT WILL BE ATTRIBUTED TO HIM, BECOZ AS FAR AS THE CONSTITUTION GOES, HE IS PRESIDENT FROM LAST FRIDAY!!

      MR SPEAKER , AS SPEAKER, YOU ARE IN PRIME POSITION TO UNDERSTAND THIS CONSTITUTION CLEARLY!!
      YOU HAVE NO EXCUSE!!!
      GET YOUR ACT TOGETHER!!!

      SUMMON OP DIRECTOR, ARMY, ZAF, ZNS COMMANDERS & DG OF POLICE TO YOUR CHAMBERS, in the PRESENCE OF ATTORNEY GENERAL TO SPELL OUT WHAT THE CONSTITUTION DEMANDS OF ALL INDIVIDUALS CONCERNED!!!

      WHEN YOU ARE SUED – YOU WILL HAVE NO DEFENCE!!!! IGNORANCE IS NO DEFENCE EITHER!!!!

      CHAGWA IS COMMITTING CRIMES IN YOUR NAME – & GUESS WHAT??? HE HAS NOTHING…

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    • ….NOTHING TO LOSE AS LONG AS YOU SIT ON YOUR BUTT!!

      UNLESS YOU TENDERED YOUR RESIGNATION AS THE PETITION WAS BEING TENDERED then you have NOTHING TO WORRY ABOUT!!

      TO SAVE YOUR BUTT, ORGANISE FOR THIS MEETING ASAP, SUCH THAT IT IS ON RECORD, ONLY THEN CAN YOU CLAIM POWER WAS USURPED FROM YOU!!!!

      THE CONSTITUTION IS ABOUT PEOPLE UPHOLDING THEIR RESPONSIBILITIES, it is NOT ABOUT BEING SCARED!!!!!!
      REMEMBER IGNORAMUSES SUCH AS ROLAND MSISKA & THEIR VERBAL DIARRHOEA, ARE NOT SINGING FROM THE CONSTITUTIONAL HYMN BOOK & THEY WON”T BE VOLUNTEERING ANY TIME SOON TO DEFEND YOU!!

      MR SPEAKER, REMEMBER, ONLY YOU & YOU ALONE, IS DIRECTED TO TAKE RESPONSIBILITY IN THIS CIRCUMSTANCE – if you FEEL IT IS TOO MUCH FOR YOU, JUST RESIGN, we will all UNDERSTAND,
      “IFINTU FI KONKA…

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    • …..if you FEEL IT IS TOO MUCH FOR YOU, JUST RESIGN, we will all UNDERSTAND,
      “IFINTU FI KONKA ABAUME!!!!”

      I THANK YOU!!

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    • REMEMBER, MR SPEAKER, there are 15,000,000 ZAMBIANS WAITING TO SEE WHAT YOU DO!!!
      THIS IS NO KIDS PLAY, THE CONSTITUTION’S DIRECTIVE, KICKED IN FRIDAY 1600hrs!!!!

      “IFINTU FI KONKA ABAUME!!!”

      I thank you!!

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    • This man Gen Miyanda is very wise. Every time he writes something its profound. Why cant we have a president who understands the constitution like Gen Miyanda?

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    • Just imagine if EL, was G. Scott when Sata died, was he going to hand over power, just thinking having known Lungu now, the guy is a smiling dictator.

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    • Easterners are like Lungu and Tutwa Ngulube, untrustworthy, muzungu anikondes. Their principles are based on the possibility of being caught out; that’s all that matters – potential for gain and not real principle.

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  1. Bwafya ichalo chesu chatekwa nabamukukulu. Please God help us we don’t want dictatorship in our Country. We fought for it we can’t afford to go backwards.

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  2. So the inauguration has been postponed, what is your beef? You have a tendency to come out from under the rock every now and then. Obviously the law as it is is subject to different interpretations until tested in the court of law. That is why we have the concourt.

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  3. If most Zambians had an opportunity to study and analysis issues before voting- there will be no tribal or wako ni wako vote patterns. As such, people like Miyanda could be leaders. But unfortunately, majority do not have the capacity to analyse issue or understand the importance of the rights to vote or challenging the elect to account for their previous votes. It is only in Africa and Zambia in particular that poverty of the mind is celebrated and anyone that thinks otherwise is critiqued.

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    • How many voters actually analyze issues in the west? The truth is there no difference between the two parties in Zambia in terms of policy

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    • And encouraged and promoted by dictators in the making like Lungu!

      That is exactly why he has closed down the private radio and TV stations. HE DOES NOT WANT ZAMBIANS TO UNDERSTAND THE ISSUES! He thinks if they are just bombed with propaganda from his controlled ToZ, DM and ZNBC they will support him and his corruption in their ignorance.

      We are at a crossroads, Let us chose Democracy, Freedom of Information, Honesty and the RULE of LAW, and say NO to dictatorship and corruption.

      Our childrens future is at stake.

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  4. That may be the case @Nono that there is no difference between the two parties policy. But the point @Sido is trying to make is that we as individuals have to look at the pros and cons of each party and then make a decision on who to side with. The tribal aspect should not factor in.

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  5. Law is different from Maths where 1+1 will always be 2. In law what is right with you can be wrong with me. Let’s put aside who we are supporting when it comes to national issues. Why are we falling to be proud of our country? Who is going to pay back what we are losing as country because of court issues. Elections are over let’s go for work baMiyanda

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  6. Godfrey miyanda is one person I know who believes in God. He used his faith in God to win an election without campaigning but hoping people will vote for him. This is one man who supported in 2001 when his popularity rose to almost second on the political scene. The problem with him including hh is that they are not visionary. They fail to read what people on the ground wants. If hh sided with the people’s needs like supporting govt for what pf has done, not siding with Fred and cartel etc he could have won public mind. Alas his existence on the political scene has being blinded by the anti Lungu charlatans. How can he win the people’s mind’s by surrounding himself with the elements that the masses are against. Very soon hh will join the likes of miyanda for failure to read the…

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    • In our common law jurisdiction, Judges follow precedence and learned authors like Sir Halsbury whose treatise is binding on them whatever their personal beliefs. Our local jurisprudence is not bereft with petition precedence including presidential ones (Akashambatwa v FTJ and Mazoka v Mwanawasa). Stare decisis and res judicata remain potent weaponry of the honourable Justices.

      A free and fair election has been defined and determined by the Halsbury whose work is copy and pasted in the Amended Constitution of 2016.

      I am no judge and yet I can predict if evidence is adduced what the holding will be.

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  7. UPND is a desparate party.Lungu should not have appointed those Judges in the name of One Zambia One Nation.Those chaps want to rule in the name of a Tonga.Lungu made a big mistake to appoint Chibomba,Sitali,Mulonda n Mulembe bcoz those are UPND sympathizers.Chibomba(tonga),Sitali(Lozi),Mulonda(kaseba’s close relative),Mulembe(Luvale).The country now will be on fire because HH and the cartel will use any means to take over becoz of tribalism.We are now in trouble bcoz the Judges are UPND.U don’t bring enemies close otherwise Zambia is now gone bcoz PF supporters in Lusaka,CB,luapula,northern,eastern,muchinga n parts of central.We are now in danger bcoz of concourt which is corrupt and tribe.I doubt if ba Lungu consulted his ministers to appoint those Judges.HH wants to rule at all…

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    • Moscow(op) don’t make comments like that. You will set the country on fire. That panel of Judges was appointed by President-elect Edgar Lungu ON MERIT. He was not looking at tribe. Leave those Judges alone to make independent verdicts based on evidence that will be made available to them.If everything in this country will be looked at from a tribe or tribalism point of view, then we are headed for trouble.

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    • @Moscow (OP), your comments are also my understanding of how PF operates. To that extent, Lungu is an outlier who has managed to take over this very tribal, very Bemba party. Unlike Sata, Lungu appointed judges on merit, albeit questionable, instead of tribe or relation to girlfriends as Sata would have done. I may start voting for Lungu if he manages to sort out tribal Bembas in PF.

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  8. Even Miyanda followed Chiluba blindly until he was dribbled on the 3rd term attempt. They say the LAW is an ASS

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  9. Thanks General Miyanda. I am PF but on the civilised side and hence support your analysis. What do we loose by handing over power temporarily and get it back in 14days. I have lived in civilised countries for a long time but here is another world – animal kingdom.

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  10. “…There are several reasons why an election petition results in nullification..” and “…he (Halsbury) says that if one provided credible evidence then such an election should be avoided (another term for nullification, which term is also found in our Electoral Act);..”

    Under the guise of challenging and correcting Tutwa, are you not, General, commenting on a matter that is before a court..?

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  11. This is what happens when cadres (as Lungu was once) start thinking they are the ones who make the rules…

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  12. Come now General, once upon a time you were described as a vexatious litigant. You see Mr. Miyanda you cite the law as you perceive it and what you have cited above is only one side of the coin. Those in defense will equally cite Halsburys, Lloyds etc. to show case when ‘evidence’ adduced should be admitted or indeed weight laid to augment a case. True, to your credit you did earn some credence by venturing to read but your understanding of legal detail lacks legal training and I dare say it up holds logic which is not as you by now know, the position at law. Lastly, I have deliberately not cited relevant texts to counter your position as the matter is before the courts, hence you know what is expected of one when that is the position. My take from your posting is that you are show…

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  13. Boating because you did try with some force to stop ECL from appending his signature to the amended constitution as you recited what you viewed as flaws in the document. ECL on the other hand is on record that he signed because the people demanded the 50+1 etc…if like Cameroon of the UK it comes to haunt him he has always said he is ready to return to his roots. Let us give the process a chance. Thanks once again for your article.

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