By Brig Gen Godfrey Miyanda
I contend that the Petition that had been filed in the Constitutional Court of Zambia (CC) by UPND’s Hakainde Hichilema and Geoffrey Bwalya Mwamba remains undetermined. It is a well settled principle that there has to be finality to all litigation before a court of competent jurisdiction; finality in this context means final determination by the CC as to who won the last presidential election. The CC dismissed the Petition on 5th September 2016 without a hearing, the very day on which it declared that its jurisdiction had expired at midnight of 4th September!
The step taken by the two Petitioners in the High Court has received angry condemnation and objections. Some of the attacks go as follows: “sheer waste of time; focus on uniting the nation; HH is boring; High court is lower than CC and the Supreme Court so it cannot rehear the case; in the name of God stop dividing this Christian Nation; God will punish you evil man; let us move on drop the petition – Church”, etc, etc. Yes people, including the Church, are entitled to their opinions; but the invective is too much harassment of the two citizens by other citizens. I thus add my voice but in support of the Petitioners.
WHAT IS A PETITION?
Put simply a petition is a method accorded to a citizen to complain or formally lodge a grievance to an authority, usually to courts. In this Christian Nation another definition that should be easily understood is “a prayer” (as in a humble supplication). I wonder why the Petitioners in our Christian Nation are being subjected to such vitriolic attacks and hateful labels as evil men, bad losers, Satanists, when they are just pleading that their grievances be addressed in accordance with the Constitution!
THE RIGHT TO PETITION IN ZAMBIA
If I was to argue purely as a Christian I would declare that our rights come from God. But in this earthly world our rights are embedded in the belly of the Constitution of Zambia, the inviolable Supreme Law of the land.
The propaganda that the failed National Referendum means that we have no rights is false; we already have protected rights under Part Three of the Constitution, which was not affected by the amendments assented to by then President Lungu on 5th January 2016. Article 28 (1) of the Constitution of Zambia CAP 1 is the enforcement provision that grants all citizens, including HH and GBM the right to petition the High Court. Curiously this provision allows the Petitioner to allege even infringements in the future as follows: “….if any person alleges that any of the provisions of Articles 11 to 26 inclusive HAS BEEN, IS BEING OR IS LIKELY TO BE CONTRAVENED in relation to him, then, without prejudice…., that person may apply for redress to the High Court which shall (a) hear and determine any such application.”
It is clear from this provision that one does not need permission from anybody, not even from the Courts, to move the High Court to hear and determine his or her petition. All that is needed is to allege that his or her rights have been, are being or are likely to be infringed and provide the particulars. This step triggers the petition but obliges the Petitioner to provide credible evidence.
This right has been on our Statute Books since Independence. In the Zambia Independence Order, 1964 Schedule 2 to the Order the provision is cited as Article 20 and side-noted as ‘Provision to secure the protection of the law’. This right has subsequently been retained in the various Constitutional amendments since 1964 as article 18 but the wording remains the same. The two Petitioners are within their right to move the High Court to hear their prayers. They ought to be heard without let or hindrance from any quarter, not even from some of our compromised churches.
IS THE UPND PETITION JUSTIFIED?
The Petition is justified because, as stated, the earlier one was neither heard nor determined by the CC. I contend that NOT hearing and NOT determining the petition is a denial of the Petitioners’ right to petition. The principle is well stated by Holt, C.J. in an ancient case Ashby v White that states that “Indeed it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal”. The Learned Authors of Halsbury’s Laws of England in Volume 10 at paragraph 716 state that “The General Rule is that wherever there exists a right recognised by law, there exists also a remedy for any infringement of such a right.”
On 3rd September 2016 I attended the Constitutional Court and witnessed the proceedings from about 0930 hours till 23.57, when the decision to extend days and hours of hearing was granted. I contend that the extension of time is an admission by the CC that they had not yet heard nor determined the Petition!
As things stand the Petitioners are still without a remedy as their petition has not been determined. Thus the jurisdiction to determine whether there is a breach of their fundamental rights properly lies with the High Court. The public condemnation is without merit. I conclude that in Zambia the Petition is the proper mode for investigating alleged breaches of Part III of the Constitution of Zambia CAP 1 and the High Court is the proper court to hear such a petition.
A CONCERNED CITIZEN
[7TH SEPTEMBER 2016]