By Katele Kalumba, Dr.
“Any such matter as may not be handled properly or covered adequately in a constitution or any other law remains a preserve of the people.”
My submission during the constitutional conference and remains my principled position.
It underpins the fact that real power remains in the hands of the people. Without this thought, constitutional development would not be possible.
In our current position on the matter of who won and should be inaugurated, the law has failed to be handled in accordance with the small powers ceded by the people to the Concourt.
The people’s voice as declared by another constitutionally mandated organ of State, principally responsible for elections, the ECZ, must prevail as the only expression of their substantive will.
There is no competent authority upon the Concourt can proceed. That would constitute judicial activism contrary to the will of the people who gave themselves a constitution.
For failure of the Concourt competence, the declaration by the ECZ remains unchanged and any exercise purporting to challenge it was and remains fictitious.
The principle upon which I rest is an old one. “Fictio cedit veritate, fictio juris non ubi veritas” (Where there is truth, the fiction of law does not exist). Stay still so asks the Lord.
I cautioned about experimenting with the law and politics and the dangers of judicial activism.
It involves interpreting into the constitution what the people never meant when they wrote the constitution.
Let our legal team respond like the waiter described in one of the posts. Steadyfast after carefully studying the constitutionality of Concourt decision.
The pleadings of HH were political and he appears to have moved the court to take into consideration, not law as such but policy driven by assumptions of “fairness” fictitiously sneaked into constitutional interpretation by their decision.
The PF legal team must now take the matter at this platform of thought where HH has shifted the Concourt to role play. It is a new theatre of ambiguity, with due respect to my learned community. This is politics, full stop. The law simply registers politics into rules.
In legal terms, it would be useful to read jurisprudence than constitutional law and administration. We may be safer.
The Concourt is positioning itself for recognition as having set precedence. If they set wrong precedence as it appears, who shall overturn it?
My head is spinning with thoughts I am constrained to express both in law and politics. So I must stand still. I have watched too much in these areas.