Zambian Voice Executive Director Chilufya Tayali
Zambian Voice Executive Director Chilufya Tayali
We would like to register our views on the ruling that was passed in the Constitutional Court to extend the days, beyond 14 days prescribed in the Constitution (that is Article 101 (5) and Article 103 (2)), in which to hear the Presidential Petition of Mr. Hakainde Hichilema and Mr. Geoffrey Mwamba Bwalya Versus His Excellency President-elect Edgar Changwa Lungu and his Vice President-elect Inonge Mutukwa Wina and others.

From our point of view, the Constitution is being breached to accommodate the minority at the expense of the majority and the entire Nation.

The just ended elections showed that, President Lungu got the majority of votes than President Hichilema, therefore it stands that; the former has more people behind him than the later.

President Hichilema and his Vice had the opportunity to prove that President-elect did not win the last election by quickly presenting evidence, in the Constitutional Court, of fraud or rigging within the specified time, however, the petitioners decided spend their time on unsubstantive applications which could not change the facts as declared by the Returning Officer.

The Constitution (article 18 (9)) directs that:
“Any court or other adjudicating authority prescribed by law for determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.”

We are of the view that, the Constitutional Court was independent and impartial by allowing the Petitioners to file in their petition and other applications without any hindrance, unfortunately, the petitioners ignored the constitutional time limit of attached to their right.

The right to be given a fair hearing in a reasonable time, in a Presidential petition, is not infinite but limited to time of 14 days.

In our view, the issue is not about rights, but time limit according to the Constitution.

We observed, that, the Constitutional Court gave the petitioners reasonable time, which is prescribed in the Constitution ( Article 101 (5) and Article 103 (2)), in which to prove their case but they could not present their evidence on time (within the 14 days).

The 14 days started counting on the 19th August, 2016 and not 2nd September, 2016 (day of trial due to a number of applications made).

An impression has been created by the petitioners, that, they were not given reasonable time to prove their case, because trial was supposed to be conducted in one day (2nd September, 2016), but this is misleading and unfortunately the Constitutional Court seems to have fallen into it, otherwise, we doubt they would have gone to the extent of breaching the Constitution by extending time.

The problem is also not on the Constitutional Court, in as much as the petitioners are cognizant and claiming their rights to be heard in a reasonable time, they ought to do the same to other Constitutional provisions including that of time limits.

A number of applications, including on the bill of rights and 14 days, were thrown out because the Constitutional court wanted to conclude the case according to the constitutional provision of 14 days.

It is, therefore, appalling for the Constitutional Court to go out of their way to commit an illegality (Article 1 (2)) to rule that the Constitutional Court will sit beyond 14 days to hear evidence which they should have received immediately the petition was filed in.

The Constitutional Court should not be drawn into illegality due to the poor approach to the case by the petitioners, or inefficiency, or lack of evidence, on time, so that that petitioners can look harder to find something, or any other negligence.

From our point of view, it is not the issue of reasonable time but failure to produce evidence before Court and that should not be a liability that the respondents or the citizens should bear.

Currently many things are on hold due to the limited Executive powers that the incumbent has. The incumbent cannot perform certain functions and it is somehow affecting the Country in various ways.

We are in the month of September and in October a budget has to be presented and yet, we have no Parliament because all the elected Members of Parliament cannot be sworn-in.

A number of bi-lateral and multi-lateral agreements cannot be entered in because the policy makers are not in office to negotiate.

The business community cannot make and execute their business plans because the risk is still high out of the electoral disputes and uncertainties.

The citizens are more insecure (insecurity) due to the same electoral petitions and uncertainties.

In our view, it is due to such power vacuum, insecurity and anxieties in the nation that the crafters of the Constitution put a specified time (14 days) for a Presidential petition to be disposed of and it not only a breach of the Constitution, the Constitutional Court, but a national risk to extend the hearing of this matter beyond the specified period of 14 days.

We, therefore, ask the Judiciary, collectively, as headed by the Chief Justice to save this nation by correcting the mistake made, by this breach of the Constitution, and set a precedence that we are a nation that follows our Constitution with integrity even though at times we may make mistakes.

The correction should also be a learning point for future litigants and Presidential petitioners that, they should be mindful of all the provisions of the Constitution, including that of time when they seek justice based on their rights.

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41 COMMENTS

  1. Of course Tayali has vested interest to see Edgar inaugurated. He has publicly campaigned for Edgar. So I wouldn’t believe any statement coming from someone with vested interest.

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    • ‘If somebody is really sick, I don’t pray to God, I look for the best doctor in town.’

      – Richard Rodgers. D. December 30, 1979.

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    • What do you mean by minority,because Lungu got 1.3 m plus and HH 1.7plus i was involved in the PVT.wait for evidence on monday.

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    • Whoever raised this man did a very bad job. I am sorry to say but Zambian mothers you need to do more to raise children that will fight for a better society and future. Why didn’t he speak up when Lungu did not hand over power? Second, the hearing is within 14 days. This does not mean the judges are to pass judgement on the 14th day. PF lawyers kept declining that they were not served in spite of the letter been delivered to them which delayed the court proceedings – why didn’t this chap speak up? The biggest question is why is Lungu scared – because any real winner would not rush to be inaugurated and would have handed power like he did in 2015 and it was given back to him. Truth be told is that Lungu knows he did not win and there was a lot of fraud. Everyone knows so let this little…

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  2. If god existed in Religions the church will not take part in slaves trade and colonization of Africa continent for 500 years of rob the continent and her people.
    If god existed in Religions the children would not be murdered in wars by weapons that profit the capitalist pigs.
    Religion is designed to create wars, divisions, sectarian violence.
    If god existed in Religions the capitalist pigs would not be getting fatter while millions starve to death.
    If god existed in Religions billions would not go to sleep hungry each day while capitalist pigs hoard the world’s food supply.Annuaire
    Clergymen behave like capitalists in the way they get fat while many of their ‘believers’ starve.
    The RELIGIONS thrives on fear because fear is the most efficient way of destroying both critical and…

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    • ………………….and creative thinking.
      One of the goals of the vile church is to build a society on the back of legitimized and even aggrandized exploitation.
      The church encourages the delusions of believers that is how it manipulates their spiritual instincts.
      The church is like a multinational corporation and it makes a killing by selling people a sick, slavish, morality.
      The church thrives on guilt because those who are guilty will see their world from a blurred, deeply emotional, perspective.
      The church wants the populace to passively await a miracle because the last thing it wants is for people to seize their freedom.
      The church works to crush the revolutionary spirit by painting revolution as immoral and submission as noble.

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  3. Ba Tayali play that phone conversation you had with your big man GBM insulting. He said they are wining but am not sure here if they have won. GBM you talk too much but you not man enough.

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  4. Religion is regarded by the common people as true, by the wise as false, and by the rulers as useful weapon the control people.

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  5. In my blog the other day, regarding the “walk-out” of the HH/GBM Lawyers, I did indicate that they had just used one of the oldest tricks in the book to dupe the court by saying they were withdrawing their services.
    In my view, the Court President here was very distinctly compromised. She should never have extended the court hearing. Tomorrow, she should vindicate her stance by not allowing even one lawyer from the group that walked out , to return to court and continue representing the petitioners. If she does, then it will be very clear that she was in collusion with that camp.

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  6. Why have you not commented on Lungu breaching the Constitution by not stepping down during the petition, refusing to dissolve cabinet, waking a court judge at night to sign an injunction to bar Sampa in Kabwe. These are fine to you, anyway I understand you have no morals. What can be expected from a person who forces himself onto his sister in law and says she wanted it. In developed countries you would not even be a headline once you are charged with RAPE no matter even if you win the case.
    Morals Ba Rapist

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  7. “In a well-functioning democracy, the state constitution is considered more important than God’s holy book, whichever holy book that may be, and God matters only in your private life.”

    – Ayaan Hirsi Ali

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  8. “The Constitution is being breached to accommodate the minority”…typical example of an oxymoron statement…LT why do you waste space publishing this “blogger for hire” boy’s Facebook posts. If you have no stories go to Reuters or BBC Africa for news.
    As Sinkamba from the Green Party quizzed – Is it illegal for the Constitutional Court to overturn its earlier decision or break its own rules? Not at all.

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  9. If majority won, why did ECZ facilitate rigging from time of printing to time of totallying? Is rigging okey if it allows mediocre leadership to take up leadership in the name of majority? If majority won, why was PF stealing public funds to use for campaigns? In PF, reverse reasoning is REAL!

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  10. One common characteristic of PF supporters is that, they are DEAD COWARDS like there leader himself! ECL cannot survive without state power and funds both of which he only knows to abuse!

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  11. Iwe Tiyali,
    Issuing 2 statements in two days !!! What does that show?

    First statement got blasted here on the forum by both parties – Ruling and Opposition, including the “non-aligned” members. And now he is trying the second time to please one group, but the core of his argument hasn`t changed from yesterday`s statement, so what he is talking about.

    Waste of time and space !!!! ….. NEXT

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  12. Firstly, it’s strange that a man who heads a one man NGO should use the word we. Secondly, what is meant by according someone a fair hearing within a reasonable time? Is it unreasonable to extend the time four days only to hear the matter? Thirdly the respondents gave their response to the petition beyond the 5 days allowed by law. A fair trial is better that a miscarriage of justice. It’s seems PF are scared of something once the petitioners are heard. If not then four days is not too long.

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  13. The petition should have been dismissed for want of prosecution. I cry for our constitution, it has been rubbished n rendered useless by those who should protect it .

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  14. The fact is 50.3% people rejected a tonga president because of the way HH’s tribesmen have ill-treated Easterners and bembas in the past. For example Magande sourced donor funding to fund the persecution of President Chiluba and prominent bembas. HH is aware of this and very happy that Chiluba was persecuted. There are corrupt Judges in the judicature who think they can install another tonga (Patrick Matibini) as acting President. Please let us not even go there where these vengeful people and cartel elements are tactfully given authority to persecute Bembas and Easterners. Any overturning of the people’s will by any corrupt Judge seeking to elevate the status of his tribesmen shall be resisted and will turn into a generational struggle for freedom.

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  15. The UPND (house) lawyers and others whom HH assembled are some of the best schooled brains in constitution law.

    They run away en masse when they just took a snap look at the overwhelming evidence from the other side, each one using unconvincing excuses, as they fled…. If this chap HHs new chongololo lawyers also quit, will he ask for another extension?

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  16. Whoever raised this man did a very bad job. I am sorry to say but Zambian mothers you need to do more to raise children that will fight for a better society and future. Why didn’t he speak up when Lungu did not hand over power? Second, the hearing is within 14 days. This does not mean the judges are to pass judgement on the 14th day. PF lawyers kept declining that they were not served in spite of the letter been delivered to them which delayed the court proceedings – why didn’t this chap speak up? The biggest question is why is Lungu scared – because any real winner would not rush to be inaugurated and would have handed power like he did in 2015 and it was given back to him. Truth be told is that Lungu knows he did not win and there was a lot of fraud. Everyone knows so let this little…

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  17. The case shud be thrown away. All the lawyers failed the 1.3 million people that voted for HH. They shud have concentrated on the main petition and raise other preliminary issues later for the sake for the record because I’m sure this is not the last time a candidate will feel cheated or so forth. ELC’s rights are also infringed before the same constitution. The best thing the Concourt can do is throw the case based on the 14 days so that a wrong precedent is not set. Mmembes analysis of the Judges as a Sangwa observation is wt noting. Im wondwring why the Chief Justice is not part of the seating? ELC’s choice of judges was a mistake. ConCourt is supposed to be run by Supreme court judges. It’s the highest court to my knowledge but he chose high court judges. Let’s inaugurate him so…

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  18. If you were involved in a pvt why did you sleep on duty i wish i was hh i could have fired all of you Edger won the elections period.

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  19. I just hope pipo wil be consistent in support for there political parties after ConCourt. Pliz dont switch sides when things become good or bad and start wishing u ad not voted for a paticular person.

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  20. Tayali you are a man indeed who wants to defend the constitution I want to join you in submitting a complaint to the judicial complaints commission the judges have abrogated their oath of office to defend the constitution the precedence will open the people to abuse after all many people will fined a way to disregard the constitution. I choose to support the respect for our constitution because it is the only piece of legislation that guarantees the enjoyment of my rights.

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  21. Tayali you are a man indeed who wants to defend the constitution I want to join you in submitting a complaint to the judicial comw plaints commission the judges have abrogated their oath of office to defend the constitution the precedence will open the people to abuse after all many people will fined a way to disregard the constitution. I choose to support the respect for our constitution because it is the only piece of legislation that guarantees the enjoyment of my rights.

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