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.