The Young African Leaders initiative says the Constitutional Court has set dangerous precedent with regards to both the rule of law, and to the law with specific reference to hearing and determination of election petitions for Members of Parliament and other elective offices.
In a statement YALI Governance Advisor Isaac Mwanza said his organization is shocked at the casual attitude with which the Constitutional Court has dealt with what is nothing more than emotive appeals in the Presidential election petition and with which the court has been seized these past 3 weeks.
Below is a full statement as issued by YALI.
The decision by the Constitutional Court to extend the time limit allowed by the Constitution for trying a presidential petition has set a most dangerous precedent with regards to both the rule of law, and to the law with specific reference to hearing and determination of election petitions for Members of Parliament and other elective offices.
We are shocked by the casual attitude with which the Constitutional Court has dealt with what is nothing more than emotive appeals in the Presidential election petition and with which the esteemed court has been seized these past 3 weeks.
On Thursday 1st September, 2016 Her Ladyship Justice Sitali handed down a ruling to the effect that the said presidential petition would have to be concluded on Friday 2nd September 2016 which would mark the end of the 14 days within which the Constitution stipulates that such a matter should be heard.
Following spirited representations by counsel for the petitioners, the matter was, quite strangely, referred to the full bench of the court. Strange in that Her Ladyship Madam Justice Sitali had handed down a substantive ruling on the matter. We are not aware of any provision in any law, which permits the court to refer a substantive ruling from a Judge of the Court, to the full bench. In effect, this was an appeal lying from a single judge, to the full bench, a most strange procedure whose foundation at law, we are at a loss to discover.
On Friday 2nd September, 2016 the President of the Constitutional Court, Her Ladyship Madam Justice Chibomba, delivered the substantive ruling of the court: the 14 days stipulated in the Constitution itself, for the hearing of a presidential election petition, would expire at 23:59 on 2nd September 2016.
The court therefore gave the two sides, up to 23:45 to conclude their submissions.
At midnight on 2nd September 2016, to our utter shock and dismay, Her Ladyship Madam Justice Chibomba informed the court that, following emotive pleas by the petitioners themselves in person, having been abandoned by their lawyers under the structures imposed by the time bar as stipulated in the ruling by the Constitutional Court itself, the court had decided that the matter would continue on Monday 5th September 2016 .
In other words, the Constitutional Court would proceed in blatant violation of not only the court’s own ruling, its governing statute and rules and in utter disregard of the Constitution itself.
YALI wishes to place it on record that the principles inherent in Section 106 Subsection 2 of the Electoral Process Act No. 35 of 2016 are instructive: Both the High Court and Tribunals established under the Act, are instructed to dismiss election petitions which have not been tried and determined within the period specified in the law due to a failure by the petitioner to actively prosecute the petition.
The Constitutional Court which constantly acknowledged itself as lacking jurisdiction under Order XV Rule 7 of the Constitutional Court Rules, to extend the time limited by the Constitution when trying a petition, decided without jurisdiction and in violation of the said Rule, to set an entirely unlawful precedent for the lower courts, where if the petitioner fails to prosecute the matter within the specified time as provided by law, the petitioner can now rely on the precedent now set by the Constitutional Court, to proceed with hearing under this unfortunate precedent which now stops any lower Court or tribunal from dismissing such a petition under Section 106 Subsection 2 of the Electoral Process Act for want of prosecution.
With regards to the hearing of the presidential election petition, it had become quite noticeable that the Constitutional Court had first given the litigants different directions, variously to the effect that the main petition was to be heard from Friday 2nd September 2016 extending into time outside the 14 days as stipulated by law. The subsequent change of its earlier position created uncertainty among both petitioners and respondents, which further delayed the hearing of the petition within the required time frame which, according to the Constitution itself, ended on September 2, 2016.
The Constitutional Court ought to have taken responsibility for the confusion caused to both parties to this petition, resulting in counsel for the petitioners walking out of Court.
YALI is therefore deeply concerned that while the Constitutional Court failed to take charge of the proceedings from the start, the precedent set by the Court will have serious implications in the manner the High Court and Tribunals will have to deal with similar situations that may arise before them during trial of parliamentary and local government elections petitions.
For instance, if the High Court dismissed a petition under Section 106 subsection 2 because the petitioner failed to prosecute it within the time line provided in the law, and if the petitioner lodged an appeal before the Constitutional Court, how would the Court protect the rule of law and ensure enforcement of Section 106 Subsection 2 if the petitioner made reference to the precedent set by the Constitutional Court itself as described in the presidential election petition currently before it?
The Constitutional Court ought to be alive to the fact that the precedent it has set, will be cited by either petitioners or respondents who are ruled to have failed to prosecute a matter within the time frame set by the Constitution, and wish to prolong petitions in Court, a mischief which we have sought to cure by amending the Constitution thus.
Zambians do not need to be taken back to the old ways of doing things where, if government wanted to punish an uncooperative member of parliament, they would resort to underhand methods such as those employed in the Dora Siliya petition, in which the ruling party simply elected not to prosecute the matter knowing that the could could not compel the parties to conclude the matter, thereby denying the people of Petauke Central constituency of representation in their parliament.
It is YALI’s position that the decision by the Constitutional Court to extend the presidential election petition is patently illegal and unlawful. To allow the Petitioners’ plaintive cries for a hearing, amounts to allowing them to appeal against the Court’s own ruling as handed down by the President of the Court on 2nd September, 2016. It is also a violation of Article 128 of the Constitution itself which stipulates that the decisions of this court are final and cannot be appealed against. Finally this decision to extend the hearing is illegal in that the Rules of the Constitutional Court do not permit the court to extend the time limited by the Constitution and to review its own decisions.The ruling handed down by the President of the Court, that the hearing of the presidential election petition was to conclude at 23:45 on Friday 2nd September 2016 was final and irreversible, and could not be appealed against.
We urge the court to strictly observe provisions of the Constitution which are binding on the Court and bring the presidential election petition to an immediate end as it became time-barred as from midnight of 2nd September, 2016.