Place of the Petition as a Mode of Enforcing Fundamental Rights under the Constitution of Zambia

121
7,233 views
Bregedier General Godfrey Miyanda
Brigadier General Godfrey Miyanda

By Brig Gen Godfrey Miyanda

INTRODUCTION

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.”

CONCLUSION

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.

GODFREY MIYANDA,
BRIGADIER GENERAL,
A CONCERNED CITIZEN
[7TH SEPTEMBER 2016]

121 COMMENTS

  1. +12
    -26
    vote

    Too long for me to read this I am afraid

    History reminds us that- It is a tall order to COMPLETE the second term in the office let alone a full TERM in Zambia.
    I wish good health to the President as he is 60 and the running mate is northwards of that age.

    My point is, HH could be President next year, if you do a mathematical equation with source data being UN statistics of Zambians.

    Campaign HH you could in statehouse next Year!
    Thanks

    I wish Lungu well though

    BB2014

    • +21
      -7
      vote

      In summary BRig , you are saying there should never have been this Concourt to start with.
      HighCourt should have been the go to to start with?

      I dont disagree with that, personally I think that – Lungu enclosed this 50+1, manufactured this court and appointed the judges of his acord without them being ratified- essentially he should have just nominated them as is the case in US and all developed countries.

      It was never a level playing field in my eyes.

      I accept the President with a big lump in my throat.

      Thanks

      Bb2014

    • +48
      -8
      vote

      I am always blown away by the General’s analysis of constitutional matters……This case is still on and UPND has all the reason to seek justice.

      Unlike KK, Kavidele and RB, Miyanda is a true ‘Elder’ of the nation, our source of Knowlwdge

    • +22
      -26
      vote

      Ba Miyanda naimwe, the CC does not have the mandate to declare the winner. Its role is to determinate the validity of the ballot. Stop adding more confusion to an already confused state of affairs in the country.

    • +25
      -27
      vote

      No one is denying that HH and GBM have got the right to be heard. The constitution has given them 14 days in which to exhaust this right……..otherwise this litigation will infringe on our right to be ruled by ECL who majority of Zambians voted for.

    • +17
      -3
      vote

      @Mushota: at last Lady Mushota has asked me; indeed kabusha takolelwe bowa (he who asked did not eat poisoned mushroom!) 1. No am not saying that bcoz HH/GBM properly went to the CC; it us a fact that CC HAS NOT DETERMINED THE PETITION(meaning CC has not answered the petition – not concluded it). By dismissing without a hearing they have denied HH/GBM their constitutional right to petition. A petition must be answered one way or the other. The CC informed the Petitioners that their argument on Article 28 should be handled by the High Court; this is correct until the still born constitution is amended agagin. “Where there is a right there is a remedy”; HH/GBM’s right is to petition; the remedy is to declare who won the election. CC has NOT determined nor declared who won!

    • +19
      -30
      vote

      Miyanda was a colossal failure in Govt. the best thing he’s remembered for is falling asleep and farting in Parliament. Bye!

    • +12
      -3
      vote

      @1.3 HH Chilema: am trying to get you out of your confusion.
      1. The reason for the Petition is for the CC decide validity of the votes, after receiving evidence from both sides, whether President elect was validly elecetd because the the Petitioners are saying he was NOT validly elected. This task may even include scrutiny of the ballots, opening the ballot boxes to check that Nawakwi’s ballots were not given to another candidate.
      2.The mandate to do this is reposed in the CC. If the CC finds that HH had more votes than ECL they will declare that and essentially that is the determination of the winner. Without evidence no determination. Still confused?

    • +17
      -17
      vote

      Ba Miyanda naimwe muleke ifya kulanda landa. Where you expecting the ConCourt to break the law? These guys (Halusa Hagain and GBM) had 14 days in which to be heard and articulate their case. In stead of going straight to the point, they chose to play cat and mouse. You have been to school. If you have 3 hours to write and exam, you answer the questions in three hours. You do not start fidgeting with question papers expecting the examiner to allow you endless time. These chaps have simply failed the exam – full stop, chapwa.

    • +17
      -20
      vote

      Ba general when are you going to stop trying to look relevant in Zambian politics when it is very apparent that you have lost it? You are one bitter man who hides behind a pseudo-cloud of principles and intellectualism. Take a chill pill yama.

    • +13
      -17
      vote

      I blame Angela for not taking care of the general. If she was giving him some good TLC( tender loving care) general teti alesabaila so kwati mulwele wa cerebral malaria. Landeni bwino tata limbi naimwe ubulwele nabufika kumutwe nga ba VJ.

    • +12
      -13
      vote

      1.5 Miyanda please go away Zambian have bigger issues than trying to appease the egos of 2 inbreds H and Fat Albert. We just want to move on with our lives and get the economy moving. They had the right to be heard within the confine of 14 days. Suppose the arguments are not exhausted for 90 days, you are saying the case has to continue until all the evidence is presented? The reason there in a time limit is to ensure the country is not held hostage. The jurisdiction of the court expired at 23:59. Now lets move on. Otherwise this is just academic pretence. The court ruled 3-2.

    • +5
      -9
      vote

      I thought he was going to write something sensible for a change ,but to my suprise he is the same old ant-social village conceptor.

    • +7
      -7
      vote

      General Miranda,

      May I state hear that UPND was given full chance to be heard as provided for in the constitution. The whole 14 days was given as per the constitution, but they misappropriated it just like the farmers union.

      They decided to misuse the whole time by bringing preliminaries and amendments.

      Today they decide to say we have not accorded time.

      What does that mean?

    • +3
      -9
      vote

      Gen. Miyanda: You seen to forget that the petition was DISMISSED. The dismissal was the finality.

    • +6
      -7
      vote

      Ba Miyanda you must understand that the petitioners were given 14 days in which to present their pertinent issues/evidence to nullify re-election of President Lungu. Your argument is as if the petitioners were not given 14 days to present and exhaust their case. Yes you have to academically struggle to find the balance or syncronicity of the old constitution and the new constitution on the bill of rights. I can simply say your argument is purely academic and suitable for a grade 12 on average IQ.

    • +5
      -4
      vote

      Brevity is the soul of wit and not the meandering (pun intended) of Miyanda.
      Be that as it may, ECL WON and the rest is academic and a big YAWN.
      HH’s lawyers are laughing all the way to the bank.

    • +3
      0
      vote

      Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws. Plato (427 BC-347 BC). I ve seen Lungu’s Bemba Lieutenants, Kambwili, Mumbi Phiri & Davies Chama insult Tongas to incite racial hatred, Bernie Msiska closing down The Post in the pretext of tax. Justin Mutale’s IBA closing Muvi, Komboni & ITT media houses. A President who “preaches fake peace” but his Cadres Max Chongo maiming innocent people. State house staff like Kaizer opening fire in public places. Political opponents arrested on flimsy charges instigated by Frank Bwalya. It reminds me of how we slowly but surely groomed Kenneth Kaunda into a dictator until it was too late. He would call a press conference & call the entire nation STUPID IDIOTS! History has a penchant of…

    • +7
      -4
      vote

      CONTINUED: History has a penchant of repeating itself & this goddamned history is surely repeating itself before our very eyes whilst the “unsighted” ululate & cheer. Let those with ears listen and those with eyes see! Evil prevails when good men fail to act! Well done Ba Miyanda. You have done your part!

    • +1
      -4
      vote

      I’m only sad Serena Williams is out of the US TENNIS OPEN.
      NEXT TUESDAY IS DUNUNA WITHOUT DUNDUMWEZI.

  2. +16
    -6
    vote

    Why didn’t upnd call any witnesses within the stipulated 14 days and then ask for extension thereafter? Justice is for both the aggrieved and the accused.

    • +11
      -6
      vote

      Because they were NOT given that opportunity by the PF lawyers who wasted time asking for adjournments, postponements, references, etc. GET IT IN YOUR HEAD!!!!

    • +9
      -6
      vote

      @2 De’Chilyatad: The Court proceedings are managed by the judges in consultation with the two sides. The sequence is that the Court gives the Order for Directions; this order is then followed by both sides. When these preliminaries are concluded a Status Conference is called by the Court at which finally the hearing date is set and the hearing begins. There was no hearing but on 3rd Sep at 23.57 the CC extended the proceedings to 5th to 8th Sep. The extension for HH/GBM and ECL/WINA was granted BEFORE midnight. But the CC dismissed the petition on 5th Sep when they alleged that they had no jurisdiction. So what jurisdiction did they use to dismiss the petition without a hearing?

    • +6
      -7
      vote

      @ 2.2 Godfrey Miyanda. In answer to your question: the CC where bound by article 101 (5) to dismiss the petition: The CC shall hear an election petition …….. within fourteen days of the filing of the petition. The CC can interpret the law but not create its own law sir.

    • +6
      -3
      vote

      Guys you surprise me, why is it an issue to have the ballots reconfirmed if you really won. You must be afraid of something to try and explain your self out. Miyanda, a non Tonga for that matter, has shown you that you can promote the interests of your country not your own belly. Imagine, god forbid, ECL died today and Mrs Wina takes over and decides to put her fellow Lozi in power and defends her actions in a similar manner that ECL is doing? most of you will scream to death and we don’t want that. That’s why advice from the likes of Miyanda should be respected by all because things can change tomorrow. Remember how Sata expelled friends from MMD only for Chiluba to bring Levy to the constipation of all those who didn’t like him?

    • +1
      -4
      vote

      People of Zambia remember even Jesus Christ was denied in the presence of People. People called on the Governor to release Barabas a thief out of Jail than Jesus Christ. They made sure that Jesus’s blood was spilled on the torcher stake. Jesus told the people cry for yourselves for me its done I am going to my father. Zambians you have chosen Barabas (Lungu) instead of Jesus Christ (HH),therefore cry for your selves as hard times are coming. Zambia is a cursed Jewish country once a Christian country but now its Sodom and Gomora. Hell fire will fall on you.

    • +2
      -1
      vote

      They were not given a chance to call witness until the last 2 hours of the petition. For One week the president elect was running away from receiving the petition. The next week it was the turn of the ConCourt judges to duck until time was up.This is a clear case of a stolen election.

    • +10
      -6
      vote

      @Jason Nyirenda, you have called Miyanda “a wasted general.” Let’s hear you engage him in a rational debate on the matters he has raised in this article and leave the rest of us bloggers to judge who is “wasted.”Only small minds resort to insults when a matter is above their level of understanding! Among this current crop of politicians in Zambia, Miyanda is one man this nation will day wish they had taken seriously! Before you insult me as well, please try to rebuff the general’s arguments in this article, paragraph by paragraph. If the general concedes that he was wrong on every point and you’re right, then you can turn on me. This attitude of insults the ‘the only one eyed man among the blind’ is what is holding our nation back. Please learn to respectfully disagree with…

    • +4
      0
      vote

      @Jason Nyirenda, …There’s a difference between intellectually challenging what someone has said and attacking someone personally. Cheap insults, name calling, childish jokes, vicious ad hominem attacks not only exposes you as intellectually lacking, but also exposes you as a morally bankrupt person. It’s easy to dismiss an intellectual argument with insults. Anybody can do it. If you want to prove General Miyanda wrong, then tell us what’s wrong with his arguments in his article, instead of taking cheap shots at him as a person.

  3. +23
    -7
    vote

    Anyone is free to petition but they must be responsible enough to understand that a Presidential petition is not open ended whereby it can go on for months or years like any other court case….NO. Time to deal with a presidential petition is prescribed by the Constitution. And this simple fact the learned lawyers and HH can understand I believe.

    • +3
      -3
      vote

      Correct and that’s why the constitution says the speaker acts in the meantime so that the petition can be concluded without malice. Furthermore, if ECL won then his term will start when that is declared so he losses nothing now. If some of you who hope he gets it now for your jobs are worried then continue worrying coz the law does not think of you in this case. Mind you if the court allowed the petition to be heard it would have ended today and probably the verdict given so why were they afraid because nothing has changed despite not hearing it?

    • +1
      -1
      vote

      The computation of 14 days was wrong.HH is not asking the court to determine the case outside 14days.Infact the election was supposed to be announced in 48hrs but alas to say they were announced after 96yrs hours was than a serious breach of the constitution.Be real ba people.Lungu is just a human being who breaths oxygen within hours he can expire.

  4. +12
    -15
    vote

    Ba Miyanda mwila isebanya. You are a grandpa go be with your grand kids. You failed to participate in these elections now you portray yourself as the best legal mind simply because of the failed coup you were involved in and your exposure to the law then and the time in the army? We are tired of your letters.

    • +5
      -7
      vote

      @Ndingo nio:
      Speak for yourself you Ar.sewhore! Of course no one is the General’s incisive and well thought out except PF imb.eciles and Mother Fuc.kers like you!

    • +8
      -4
      vote

      Ba Chilyata?? but why are insulting me? This man whether he is your relative or not he has no bearing on the outcome of the petition. Don’t insult just explain your points.

    • +6
      -5
      vote

      Ndibo is right. Ba Miyanda is just bitter about things only he knows. Elections are won though the ballot. Not courts or coups.

    • +2
      -1
      vote

      In short Ndingo respond to what Miyanda has said not who he is or his inability to stand. He is like you coz you did not stand also but you have comments. Respond or forever recognise that you are not at the same level.

  5. +6
    -2
    vote

    @ Mushota, no it isn’t long. Please read BGGM’s article as you will learn a thing or 2 from it. Hahaha too fun though about your historical and statistical arguments, unfortunately you are actually right on this.

    Another masterpiece from the B. General. I wholeheartedly agree with his constitutional submission here. There’s no doubt, if one had a fair and unbiased mindset, that HH and GBM’s fundamental rights to justice and right to be heard and accorded a fair hearing have been gravely violated. The judges succumbed to the pressure from Lungu, his minions and his cadres.

    The fact everyone is condemning HH for seeking a court redress is a shame indeed.

    • +6
      0
      vote

      @6.1 Mushota: I thank @6 Maverick for his advice to you. But I am elated that finally you have read and I can see the yellow smile. Thanx Maverick and you too Lady Mushota///

    • +7
      -5
      vote

      Why is the General convinced Mushota is a Lady? Things are not always what they appear to be. Careful general…

  6. +13
    -1
    vote

    This is what I meant by argument formulation on the other Thread where some professor embarrassed himself and has been slaughtered by the bloggers.

    Obviously, I don’t agree with the General here, but the way he has framed and formulated his argument is excellent and even if you don’t agree with him, you are bound to listen to him. You can clearly see that the man has gone to some length to say , ..hey I know your issues , I know your views and they are these, but hear my side too. These are the basics of Argument formulation. Why that entire professor missed it still beats me.

    For all Universities dying to find a person to honour with a PhD, there is Miyanda right there for you. At least a thinker and a writer

    • +12
      0
      vote

      General, no doubt this constitution was rushed and I respect you for being one of the few to say hold it even on the last day as you had spotted many flaws. However, we need to let the whole process take an iterative nature. Clearly this constitution has been put on the road and found to be wanting, I think first order of business is clear some of the obvious blanders and perfect this document. lets treat this as version 1 and lets work on version 2 that that we have more knowledge and information.

      We can’t really put legislature on hold while HH works his way in court, we can’t put the Executive on hold while GBM works his way in court. This could take as long as 4 years!!! There is a country to be run here

    • +2
      0
      vote

      @7 MMD Chief Bootlicker: Points noted at @7.1; no time to give reasoned response. Pse allow me to respond later as I am getting into two. Will equally respond to the rest are relevant. AM DONE FOR NOW enjoy a blessed afternoon///

    • +2
      -3
      vote

      Lungu and his judges missed un opportunity to confirm the disputed win.No innocent winner would resist the petition the way PF and its followers have done,please explain your fear so that we can share it with you.

    • 0
      -1
      vote

      @Dan Biloko: there was no way Lungu and his Kangaroo Court are going to allow the petition to be heard. There is ample evidence to show that the Lusaka urban election results were not supported by properly signed prescribed forms that were also witnessed. Essentially, Lusaka urban was used to rig the elections. The Lusaka urban results were manufactured by ECZ and PF to give Lungu a win. That’s why Lungu would not allow the petition to be heard because all this rigging would have been revealed in court.

  7. +7
    0
    vote

    I stopped commenting on LT years ago. Unfortunately, I’ve been forced to do so again. Thanks for your opinion General Miyanda. Well articulated and one cannot help but applaud you for the research you did before contributing. Unfortunately, many contributions if not all, I’ve seen on here in support of HH and GBM are like yours, conveniently going to ignore article 101 or skip it and jump to 103. Let us not forget the 14 days which these guys were given. I’m not a Solicitor nor am I a Barrister or Law student. But, one would have thought time applies in Law. Have a look at this: Home Secretary Theresa May has launched a legal challenge against the decision to let radical cleric Abu Qatada stay in the UK. Yes Mrs May nearly lost out on time.

    • +5
      -1
      vote

      I share your sentiments. The General is glossing over the 14 days given to hear and determine this case which the petitioners misused by raising too many preliminary issues instead of focusing on the core issues.

    • +1
      -1
      vote

      Assuming the 14 days you allude to should have concluded the petition then the rejection of the petition which was done on Monday not the previous Friday at 23.59hrs was also outside the time frame and thus null and void.

    • +2
      -1
      vote

      At 8. Kumikoti : The Judicial Communications Office confirmed that the home secretary has 21 days from the date of the ruling by Siac to lodge and appeal.If the appeal was lodged within 21days, surely the home secretary could have lost on time. In our case the petitioners were given 14 solid days an opportunity to present their case. They lacked strategy on how to prosecute their case.They should made the main petition a priority rather than spending their hours on less important issues.They didn`t represent their clients very well and should take the blame. They knew the time constraints, but chose to take liberties on time by glossing over preliminary issues.The petitioners should have also guided their lawyers not to waste time on preliminary issues at the expense of the main matter…

    • +1
      0
      vote

      Dununa please see my posts below. I hate getting angry with people like. I take it you have no clue about law.

    • +1
      -2
      vote

      They only sat for 10 days, no one was sitting at the weekends. If the judges turned up at the weekend , then yes you would have been right that 14 days expired. The judges kept giving direction and changing it as and when. Direction should have been given before the petition started rather say this will happen and then changed after what might have seemed like external pressures during the initial stage. As it stands, no hearing was heard as the petitioners did not have a chance to present the case. So how did the CC come to a conclusion without the hearing.
      The general is trying to make a point but all people do is insult him, were are we heading to in Zambia. God help us.

  8. vote

    typical pf cadres. What is senseble is senseless to them. Surely with this kind of people on the upper stage of the contest, i dont know what zambia is likely to be in years to come at their helm. Kaya!

    • vote

      It is amazing how PF cadres are happy to blame HH about the time limit as if the judge at the KanCourt was a mere time keeper. Even in football, if a team with 9 players decide to keep the ball out of play so that the 90 minutes is over and they can claim a no score draw, the referee has the right to red card them. A judge must surely manage the court proceedings so that the hearing can happen and a judgement made. A judge who fails to deliver a judgement is beyond incompetence. It is criminal negligence. In this case, the petition has not been dismissed. The KanCourt has stated that they can no longer proceed with the petition and cannot give a judgement. This is the hollowest of all victories by Lungu.

  9. +4
    -2
    vote

    General in the environment we find ourselves in today the “public condemnation ” is coming from the ” hired public ” which full of self serving individuals such as Kateule, Tayali, Ntewewe, and the “good pastors”. Recall the 22 pastors of the third term era!

  10. +3
    -2
    vote

    Couldn’t agree more with the General’s analysis of the law, we need big boys to interprete it. Well articulated even though some of you choose to be myopic in regards to the law.

    • +2
      0
      vote

      Sorry they are not myopic, they just don’t understand. That’s why no one has taken time to explain where they disagree point by point coz they know they don’t know.

  11. +3
    -1
    vote

    CONTD. Theresa May to abide by the 48 hours (stipulated) or the evil preacher was going to walk free. The appeal was launched with a few minutes left. I would like to have a conversation with you about this over the phone. I agree the ConCourt got it wrong on Friday, they should have thrown the case out then. To call for their removal is over the top. A slap on the wrist yes but nothing more.

  12. +4
    -4
    vote

    And so the gallant freedom fighters HH and GBM are in the High court today. We the 1.8m who voted for them are waiting patiently for justice to be served.

    • vote

      am sure you have received the sms from cabinet….forget about a resolution in your favor..just wait for 2021 or continue going to the courts.50.36% > 47%!!!

  13. +7
    0
    vote

    With all due respect Brig. Miyanda, your contention is not correct in law. Your assertion that the case was not heard, can only be complete when the court determined who won is wrong in law.

    The people of Zambia went to elections and cast their votes. The ECZ a state commission responsible for verifying and ratifying the elections did pronounce a clear winner and that was President Lungu. The constitutional court does NOT rule who wins an election. It only hears a Teton which is supported by clear evidence and according to any proven errors in the conduct of electoral procedure, can pass a judgement for a recount, rerun BUT NOT, make a different call on the winner of the elections. In all court cases a petitioner, a litigant must prepare their case well within the courts time…

  14. +7
    -1
    vote

    The case must be served to respondents to respond and an interlocutory hearing clarifies what the case to be heard us going to be. A date us given to begin hearing and all must be in court, witnesses included. A case is won MANY WAYS. 1). An applicant presents his case in time as laid by the court, 2). Provides witness/evidence to his case and is NOT. Allowed to phish for evidence during the hearing. 3). If the respondents are found wanting in defence, the applicant wins. HOWEVER, if an applicant fails to file, serve, present, and has no evidence in A GIVEN TIME, the case is thrown out and thus the respondents win. The fault is with HH and team bringing an ill prepared case with no evidence and for contemptuous conduct throughout. The case WAS heard, the applicant failed to present…

  15. +6
    0
    vote

    *Theresa May had to abide by the 48 hours (stipulated) or the evil preacher was going to walk free.

  16. +8
    0
    vote

    The learned General has deliberately avoided pertinent issues which led to the scenario we are at now. His argument is good for law students but not practicing lawyers because we have a case on the ground.
    To choose to ignore what led to this scenario and hide in what the law says about rights without relating the rights to what transpired is not only cowardice but outright incitement.

    • +1
      0
      vote

      Lapkenifamilly the problem was in the computation of the 14days.Judge sitali mwewa told the petioners that 14days will expire 0n 8th September 2016.later she contradicted herself by uturning sharply and said the 14 days will end on 4th Septemeber,2016.following the decision made by a full bench a decision was passed that 4days be added to mean 8th September was the correct date to close the case but three judges come out to close the on 15th day.If what I have written is correct how is HH and GBM wrong to indicate that Justice was not given to them.the elction results were supposed to be announced in 48hrs but were only announced after 96hrs was this Justice to you?Lungu was supposed to hand over power to speaker did he do that ?Zambians lets be fair.

  17. +4
    -3
    vote

    General Miyanda.
    You have been my inspiration and I have been admiring your principles. Its is because of this that in all the elections you have participated I have given you not only my vote but my wife’s too. Up date I am very sure that if at all the third term issue did not bring all the confusion in the then grant MMD, you would have succeeded Chiluba. If that had happened I am very sure that Zambia would have been a very different country because as a principled man at helm of this nation’s leadership, your principled would have trickled down to the least man.
    However, I have been following your writings on different media and this is beginning to worry me because behind what you say, I see that you have a grudge against someone. You have unsettled scores with some people. From…

    • +3
      -1
      vote

      KK trusted and appointed this general as the army commander and guess what he does to KK, his boss? And some one calls him a principled man?

  18. +4
    -1
    vote

    Mushota; I wish to highlight that you have come out so mature on this today. Big up to you…lelo tema jokes. Ba Miyanda; you have articulated it well. they deserve to be heard. We are all in agreement with that.

    The two had been given the most appropriate platform from where they could have been heard and the case at hand determined just well, and in the interest of all patriotic Zambians. They however wasted their time in their application of strategy. Who is to blame? Themselves, or at least their lawyers!

    For a good cause it might have seemed, but why apply to block the inauguration of the president elect at this point? Is it not going against his rights as well? ECL is also a citizen that deserves to have his rights observed. The court was right to dismiss the case on the…

    • +1
      -3
      vote

      The Concourt also made some mistakes, serious mistakes.They did not set the ground rules.They should have stated from the very beginning that the matter will be closed on 2nd September,2016 and that there would be no extensions. And so the UPND could have been well advised to strictly adhere to the main topic of the petition from the word go. And the Concourt indeed realized their mistakes, hence their unanimous decision to extend the petition by 4 days but what happened to the 3 judges over the weekend only God knows.

    • +4
      0
      vote

      Human Rights Activist (My fellow citizen): one of the first law related statements most of us had come across is that Ignorance has no defense in the courts of law. The group of many lawyers that had gone so equipped with the legal tools from the constitution (with their many years of experience) surely knew why time was an important factor in this case. As wrong are it is written, the court knew they knew!

      So, on the issue of deadline, it was not the Judges’ business – to have been reminding them of their deadline? NO!!! The strategy were to have employ, just like in an examination, mattered less to the judges at the people at large. For how did they even attempt to have had the 14 day interpreted a day so so before? They lost like that! This is a precedence being set … there is…

  19. vote

    The inauguration can’t be blocked….HH and GBM will be heard and they will not be satisfied with the outcome.So adjournment after adjournment…..till 2021.they will apply to the ICC am sure….but nobody cares anymore.Only time will tell….if at all they will achieve anything!!after the inauguration,am sure a few judges will be retired in National interest!!Watch the space….ECL is not as stupid as UPND think he is….he has outsmarted them twice already so……

    • 0
      -1
      vote

      Hilda Chibomba will be one of them to be retired in national interest. And from this day forth HH, GBM, Scott, Nervous Mumba, LAZ, the POST newspaper should never be approached with kid gloves. These guys/organizations should be placed under security surveillance. They are a danger to the peace and national unity of the country.

  20. +1
    -1
    vote

    General Miyanda your analysis deserves kudos. Only those who don’t want to hear the truth will condemn it.Some people are so corrupt with power that the wrongs are considered to be the correct things. It’s very unfortunate. And when a nation reaches this level it becomes a rotten society.

  21. +4
    -1
    vote

    technical knock out basis as enshrined in the current constitution we are courting. If say the judges had decided to go ahead and extend as per the demand what could have been the arising issue? PF and the sympathizers would have said the Concourt has just manipulated their judgement to favor the two. Was it going to have been cool? NO!!! Why, because rules had been set by the guiding principle of the constitution itself! Right now, the constitution has been followed and it it time up!

  22. +3
    -4
    vote

    This is not HH and GBM case, this is the people versus the justice system in Zambia. We have three arms of government that are supposed to work independently.

    To think of the three arms holding hands against the people is sickening. In Zambia we compromise on integrity and morals. We have good laws but the rot in morals is overwhelming what could be the prudence of our society.

  23. +4
    -3
    vote

    General Miyanda did you say? Absolute rubbish, he is just an attention seeker after he abandoned his presidential ambitions after many attempts. Underfive is going the same way, so Miyanda should be sharing his experience with poor Hh and guide him that when people have rejected you just accept the inevitable.

  24. +5
    -2
    vote

    All of us have the rights which are supposed to be respected by all, this is the more reason why time should be respected by every one including your friends GBM and HH . So please General Miyanda don’t waste our time because by not allowing ECL to be inaugurated you are infringing on his human rights. HH and GBV time was wasted by themselves and their crooks lawyers. Its time to move on period!

    • +1
      0
      vote

      Lungu must fall.and yes he will.we shall give sweets and he shall dance pelete or mapenenga or nyau. Time for reckoning is near.

  25. +1
    0
    vote

    Although Rtd Gen Miyanda might have a point, I find it annoying that he’s been at the centre of changes in our governance that has got us here. He pushed of the changes in the constitution in Chiluba’s government and also began the crusade to undermine the vice presidency of Guy Scott, to mention but a few. He argues after the event, having argued to facilitate the wrong changes in the first place. If only you’d allowed sanity to prevail at the time Guy Scott ascended to power as an acting President! Now the die is cast, you can’t effectively change anything. I suggest that you lobby ECK privately and stop making a nuisance of yourself, having enabled him to get this far!

  26. +2
    0
    vote

    God is a merciful God now I realize. At one time I thought Miyanda was God sent leader. A lot of Zambians thought so until he himself went out of the way. If we had voted for a man who thinks like he has written, this country would have been in shambles this time. A presidential candidate can not be thinking like the way he is doing. HH and GBM know that they have lost GBM even said what ever the outcome of the Con court we shall agree. Why is not accepting. When I hear that they are bribing lawyer I am now understanding them.

  27. +4
    0
    vote

    Mr Miyanda Rtd Gen the petitioners have the right to be heard. When they failed in there petition they had 14 days to be heard, AFTER THAT is judgment or they is no petition. unless you saying they were denied the right to be heard within 14 days.

  28. vote

    Brig. Gen. Miyanda, there are also two things you have to mind; the rights of the Zambians to have a leadership in place and the time limit to the petition. If you tell me that it is more important for HH and GBM and less important for the Zambians as far as this case is concerned, then you are right. But if the welfare and of course rights of Zambians is important, then why are we denied our rights. Moreover, were they not given enough time? They were but instead all sorts of unwarranted applications one after the other. Was that the court’s problem? If you tell me that time limit was unnecessary, then you are telling Zambians that they can have no problem to stay without a president because the rate at which HH and GBM were going, this case can last a year

  29. +3
    -1
    vote

    General Miyanda,

    May I state here that UPND was given full chance to be heard as provided for in the constitution. The whole 14 days was given as per the constitution, but they misappropriated it just like the farmers union.

    They decided to misuse the whole time by bringing preliminaries and amendments.

    Today they decide to say we have not accorded time.

    What does that mean?

  30. +1
    0
    vote

    I bind every evil spirit that is stealing our productive time through social media in the name of Jesus

  31. +1
    0
    vote

    Let’s make a difference between a valid right to have one’s day in court and people wasting the time and resources not only of the court but the nation as a whole. Let’s be fair here and call it as it is. HH and company lost the elections and have tried every trick in the book to give an impression that they were cheated of victory- they issued false stories on their sponsored media outlets such as ZWD, incited violence in their strongholds and continue to alarm the nation with false allegations. Let’s be honest with ourselves the elections were fair and free, they were observed as such by all monitoring bodies both local and foreign. A few hiccups may have occurred which regardless are not enough to warrant holding a nation to ransom! General sir, I disagree with your opinion!

  32. 0
    -1
    vote

    Brigadier Godfrey Miyanda. You are of the few people I admire even today. I admired you when you where vice president. I even admired you when you formed HP. You are one of the few with gifted wisdom. Your articles are always on point. Please don’t expect the likes of pf cadres to comprehend your point of view. Don’t even try to respond to their criticism. They will never reach your level not even their small god in ecl ever will. I salute you Sir.

    • vote

      @WELLS WHAT IS GERMANE IS THAT ECL WON AND THE REST IS ACADEMIC.
      NEXT TUESDAY IS DUNUNA WITHOUT DUNDUMWEZI.

    • 0
      -1
      vote

      PF have no small gods, they don’t believe in that. That’s why they have managed to produce two Republican Presidents, coming only second to MMD on the log, and still counting…

  33. vote

    Can a pig change its nature or a leopard it’s skin….just look at the tirade from you know which corner.

  34. +2
    -1
    vote

    Perhaps time management remains our Achilles heel. The judges seem to have either lost control of it or were running out the clock. Either way the travesty is a dismissal based on time. The petition should have been heard. Drowning out silent screams is a temporary false sense of security.

    The last time that bulldozer ran riot, pangas raised in the air at Mulungushi Rock were deemed ‘democratic’. To the victors, all is as it should be. It even makes sense. To others, it raises eyebrows and makes no sense.

    Reuters had government confirmation of inauguration well before the country awoke on Monday so that outcome was decided outside the courts. That’s not justice.

  35. vote

    What I have seen very common amongst all the these failed politicians is envy and jelousy.. They have tried several times to be where he is but failed. He came from no where and got many Zambians loving so much this hits them so hard!!! To me in the first the petition was not even necessary because the winner of the election is clear. Then the two Richfools decided to petition and are given all the time allowed in the constitution, they failed to use the chance. So the question is should more than half the country be held at ransom just to fulfill the rights of two greedy men? From what I know rights have limits they are not absolute!!! your right to swing your hand ends where my nose begins!!! therefore these two richfools rights to be heard ended after the lapse of the 14days!!!!!

  36. +2
    0
    vote

    Ba general heritage, please find a cool corner and doze off n fart as much as you want. Just don’t waste our time here

  37. +1
    -1
    vote

    Ba Miyanda you are confusing people. If you are saying someone has the right to be heard and then there is a time limit to the hearing and determination of the matter would you still go on even when the time period has expired?. The way I see it as a layman is like this: I have the best papers for a job and then I choose to submit my application a day after the deadline will I still claim that I was robbed of a job so I also want to be interviewed? or if someone tells you that Kampanda died on 2 September, 2016 because you loved kampamba so much would you sau know Kampanda should be given chance to die on 21st September, 2016? I need you guidance. By the way I am on the side of Lungu.

    • vote

      @HH judge PF why didn’t you deny the election results which were announced after 48hrs as stipulated by the constitution. You hypocrits.PF devils.We shall you when we harvest his soul.He wins by stealing deserves to day by the sword.

    • vote

      HH Judge your thinking is very shallow, no wonder we in all this trouble because of people like you. You are equating human rights to a job application and to a dead somebody. You examples are misplaced and do not apply to the issue at hand. However, because the number of shallow minds like yours are the majority in Zambia, its a folly to be wise. Congratulations on stealing the election.

  38. +1
    0
    vote

    I always follow General Godfrey Miyanda’s comments on various matters of serious concern to the nation. Now what is the position of judicial. Lack of seriousness or having individuals being powerful than institutions of good governance has now put us at cross roads. I don’t know the future of our children and their children and their children in terms of their rights. I am afraid things have fallen apart and great damage has been done to the judicial. How does a competent court fail to hear a case and put it to rest. Its better for one to be heard and a verdict passed whether in one’s favour or not. Thanking General Godfrey Miyanda for making a timely comment.

  39. 0
    -1
    vote

    (7) A decision of the Constitutional Court made in accordance
    with clause (6) is final. Explain to me this General

    • +1
      -1
      vote

      Simple. A decision of the Constitutional Court is final.

      If there is NO DECISION then the case IS NOT FINAL!

      Got it?

  40. vote

    General the reason why you are able to argue like this is because in social sciences most often peoplle do not agree. The side you have taken will never be accepted by the other side. They look into it differently by this. The step taken by the ConCourt has received angry condemnation and objections. Some of the attacks go as follows: “Judges should resign before before they fired”; the outcome of the case was predetermined. Is not is too much harassment of the concourt judges. You have added your voice in support of the Petitioners you don’t mind even if it is vexatious.

  41. +1
    0
    vote

    General Miyanda is echoing what has transpired over the last few years in Zambia. Those at the helm of the country, their supporters and branches that are meant to defend and uphold the Constitution and rule of law, decided that Zambia should now be run through jungle laws and the capricious whims of men devoid of any integrity. Miyanda represents the few who are left and are ready to place their heads on the block to try and drag the country from the canyon of political primitiveness.
    Mark my words; the dining and wallowing in ‘fine wines’ by the invited greedy few at Lungu’s banquet table, will soon grind to a screeching halt. Reality will dawn and then ….. without a vision, the nation will have nothing to hold on to.

  42. +2
    0
    vote

    general we are all watching its time we teach this drunken master a real lesson for all Zambians to learn that stealing and rigging will never be accepted in Zambia.

  43. +2
    0
    vote

    General you are right. The petitioners were not heard. I salute one writer who gives the example of an exam which is written in a given time frame. For what ever reason 14 days was and the time allocated to hear the petition. Upnd should have prepared themselves adequately and to the point. 14 days is what was agreed upon in the const. There was no room for figiting. It may appear that councilors for upnd did not know the ‘exam rules’. They wanted to write a 3 hrs exam in 1 week(exaggerated). Result they failed because by the time the bell was ringing to stop the exam they were still not sure to answer or not.

  44. +2
    -1
    vote

    General, 47% of Zed do agree with you according to ecz results.
    But it’s more like 70% if the votes were not stolen.
    PF kaponya thieves.

  45. +1
    0
    vote

    True Dave two sides to every story and people should be heard but they should speak in the time allocated or they will lose their chance to do so. That’s sad but that’s just the way it was. I would have liked this to end differently but ECL did not block the petitioners. We were all anxious to hear their case but alas it went to other issues. They were excited by an extension of two days when the had had 10 days to do what they were now happy to do in 2 days? Am told PF lawyers were playing delaying tactics with ECL hidding from receiving court papers, but this should have been the cue for UPND to go for the jugular on the very first day! Someone steals your wife and the first day in court all you want is an injunction to stop the man from kissing your wife until the case is…

  46. +1
    -1
    vote

    MIYANDA IS HH’S AGENT – THIS BEING THE CASE, WE UNDERSTAND YOUR DIPLOMATIC BITTERNESS
    ===============================
    It’s a pity this guy is becoming irrelevant day in, day out. I wonder what has happened to his Heritage Party.
    Well ba guy ba Miyanda, that petition was to be heard within a specified time. I for one would have loved to hear on or learn how ECZ and PF stole from UPND and HH. But, as we have come to learn, HH started looking for evidence from the accused pa last minute. Mmmmmmh iwe miyanda, are you sure that the petitioner should be asking for evidence from the accused? Are you normal? You also stop wasting our time general in short sela babombeko aba nobe, ala.

  47. vote

    33 wellss: it’s either you were young or a fool at the time Miyanda as education minister wanted to control universities like they were in his pockets to an extent of holding the graduation ceremony at mulungushi and each graduant had only to invite his biological parents! Can you imagine!!!

  48. vote

    ….. until your case is disposed of, Seriously? It would’ve been easier to understand if these guyz had run out of time while presenting their case but to run out of time without even starting on your main case ? seriously? that is very sad. very sad it indeed.

  49. 0
    -1
    vote

    Brigadier Miyanda, I don’t remember you fighting that Ftj driven consititution which effectively barred Dr KAUNDA from standing in 1996? All you as mmd members was to shout KAUNDA ALALA

  50. 0
    -1
    vote

    Retired Brig Gen Miyanda I have told you before your beliefs no matter how logical they appear are as you know not founded on law. Perharps you could have spent your last few years reading the law that could have helped you. Citing a few paragraphs from Halsburys commentaries is ill concieved and as we all know you have nothing better to do than try to mislead innocent souls to embrace your warped thinking.

  51. vote

    @ALL BLOGGERS: all who participated thanx for your interest and participation in this very serious national issue which is tending to tear us apart. Sincere apology for not rejoining the debate as promised (@7.2 Godfrey Miyanda and @8.2 Godfrey Miyanda). Upon return I found a lot of contributions, some petty and personal and others relevant disagreements that deserve a response. Because the objections are many and substantive I feel that instead of answering one blog at a time I should submit a single response covering those comments I have judged deserve to be answered. I am preparing separate response. Even better to respond now that the High Court has ruled; this removes the spectre of subjective and partisan responses///

    • +1
      -1
      vote

      Miyanda you are really bonkers, there is still time for you to enrol to Unza and get yourself a proper qualification. You sound too petty to be taken seriously by any sane person. I feel very sorry for poor Angela who has to put up with you always.

  52. vote

    A concerned citizen gave his opinion. Personal attacks do not add value to any discussion especially those of public concern. Please stick to issues.

  53. 0
    -1
    vote

    My advice to Miyanda is that he should leave things of law to people who went to law school. This advice was given to him some years ago by one Kabimba. Just like Mushota said, Miyanda is boring us with his incoherent arguments in law. For his information, Lungu was already declared winner by ECZ chairman Esau Chulu. He cannot be declared winner twice. HH and his buddy GBM took ECL and Wina to the Concourt in a petition. The petition was thrown out by a vote of 3-2. How clear can that be? So why does Miyanda think this case was inconclusive? LUNGU BAMBO WAS ALREADY DECLARED WINNER! And trully it is not necessary either that HH has to conceed defeat. He can shout as much as he wants, ECL will be inaugurated president Tuesday. EPELA! FINITO! MPHELA!NITETYO!

Comments are closed.