By Muna Ndulo
The Author is the Professor of Law, Elizabeth and Arthur Reich Director, Leo and Arvilla, Berger International Legal Studies Program, and Director Institute for African Development, Cornell University Law School. Also Honorary Professor of Law at the Universities of Cape Town, Free State and Western Cape, South Africa
There can be no denying that Zambia’s Judicial system, especially the Constitutional Court, is in a crisis. It has failed to play its constitutional role.
I would agree with Professor Hansugule’s assessment that the Zambian Constitutional Court displays unbelievable mediocrity and is an embarrassment to Africa and the rest of the world. In this article I argue that the September 5 decision of Justices Sitali, Mulonda and Mulenga to overturn a decision of the full bench was illegal, irregular and unprofessional and has no legal effect.
It must pass as the worst spectacle of judicial rascality anywhere in the world. This is so because the lack of integrity or even active corruption within institutions mandated to enforce and safeguard the rule of law is particularly alarming and destructive to society. The social effects of such fact based and perceived systemic bias and corruption undermines the legitimacy of the state and democracy itself. The Constitutional Court’s “Judgment” delivered by Justices Mulonda, Sitali and Mulenga, on Monday September 5, 2016 has completely undermined the integrity of the Court, exposed some of its judges as either incompetent or partial or both. The petition was the opportunity for the court to show its authority in a contest dogged by institutional collapse and growing executive impunity regrettably the opportunity was squandered.
Interestingly, from the judgement of the majority and of the two dissenting judges (Justice Munalula and Chibomba); we learn that a unanimous decision of the full Court announced on Friday September 2 at 11: 45 pm which ruled that a four day hearing in the petition was to start on Monday 5, September 2016 was overturned. In the Friday decision, the petitioners were allocated two days to present their case and the respondents two days to respond.
On September 5, when the Court met to begin trial three judges (Mulonda, Mulenga and Sitali) issued a ruling dismissing the petition on the grounds that 14 days within which a presidential petition must be heard had expired. The lawyers of the respondent were not in court arguing that they did not want to participate in an illegality. It is quite intriguing that lawyers for the respondent can have the effrontery to say they will not appear before a court because to them the case appears illegal.
One critical question which jumps out immediately would be – since when do lawyers appearing before a court decide the illegality of an act? Is it not a hallowed judicial function as to the determination of the legality or illegality of cases before a Court? One would have thought that even in matters that touch on jurisdiction it is the duty of the Court to say it has jurisdiction or otherwise.
However, in this case, the respondents absented themselves from court without any application being made to the court and therefore without permission. In so doing they did not only demean the Court, they defiled the collective rights of the Zambian people which the Court represents. It was therefore unfortunate that the three judges who hacked the petition death unwittingly endorsed the Respondents contemptuous behavior.
It appears from the judgment of the dissenting judges that the two dissenting judges had very little time to read the so called judgment of the three. This raises the following very serious questions: When did the Judges’ conference to arrive at a new decision take place? Who called this meeting and in what context? How do three judges overrule a full bench properly constituted at what is clearly an irregular meeting? Who re-opened the issue? When was the application for reopening made and to whom and where? Was the application to reconsider the Friday ruling made to the full bench? When was the application heard?
The only logical conclusion is that the three judges (Mulonda, Mulenga and Sitali) caucused on their own over the weekend and decided to overrule the subsisting ruling of the full bench. They made the decision and wrote the judgment without any submissions from the parties. If this is not a conduct that subverts the judicial system; what is it? If this is not evidence of judicial brigandage, what is it? If this is not evidence of rascality and judicial fraud what is it?
I argue below that given the above facts, the decision of the three judges is invalid in law and is in fact an illegal subversion of the judicial process. No country that respects the rule of law can tolerate such misconduct on the part of judicial officers. Additionally, the so called judgment is wrong on the law. Therefore, the ruling made by the full bench on Friday September 2 is still valid. The following are the arguments to support my conclusion:
(1) First the meeting of the three judges that produced the ruling was irregular. It cannot be justified under any tenet of law known to the Zambian Legal system or perceivable in any part of the Common Law Legal Tradition. There was no motion filed or agued to revisit the issue. So there was no rehearing and parties did not have the opportunity of contesting the review of the ruling. Moreover the petitioners had relied on it and if judicial rulings turn out suddenly to be unreliable that is the end of democracy.
It was not an open process and was not a full bench meeting. A small group cannot form itself out of the whole and overrule the whole. In addition, there were no new facts to consider. Courts do not reconsider rulings on rehashed arguments. The attempt to overrule the Friday ruling of the full bench is a subversion of the judicial system which calls into question the fitness of the three judges to hold judicial office. The three judges need to be given the Commonwealth Bangalore Principles on Judicial Conduct to read. In a truly democratic and functioning society, the three judges would be at this time facing the prospect of impeachment proceedings.
(2) The remedy the three judges purported to give is not provided for in the constitution. Article 103 (3) provides that “the Constitutional Court may, after hearing an election petition-(a) declare the election of the President-elect valid; or (b) nullify the election of the president-elect and Vice President. The three judges’ purported to dismiss the petition a remedy not provided for in the constitution. Obviously in their reckless speed and effort to perfect their deed they failed to read the law as it is. It must therefore fail because a court of law cannot give a remedy not provided in law. Their purported judgement is therefore standing on nothing and the law is trite that you cannot put something on nothing and expect it to stand, it must surely collapse.
(3) On the question of the 14 day period, Article 103 (2) provides that “The Constitutional Court shall hear an election petition relating to the President-elect within fourteen days of the filing of the petition.” There is no consequence provided for exceeding 14 days. Besides the section talks about “hearing.” It nowhere mentions “determining.” The article seems to have been drafted along the lines of a similar provision in the 2010 Kenyan Constitution. In marked contrast, the Kenyan provision talks about “hearing” and “determining”.
Article 140 (1) of the 2010 of the Kenyan Constitution provides that: “(a) A person may file a petition in the Supreme Court to challenge the election of the President elect within seven days after the date of the declaration of the results of the presidential election; (b) Within fourteen days after the filing of the petition, under clause (1) the Supreme Court shall hear and determine the petition and its decision shall be final”. Judicial powers ought to be exercised judicially and judiciously – essentially it must be exercised in the interest of substantial justice and not to defeat the commonweal of the people. In this case, what we have seen can be called any other thing but never a judicious exercise of judicial powers.
(4) Article 103 (2) should not be interpreted to deny petitioners their constitutionally guaranteed rights to be heard. A hearing must also be fair and equitable and not just a farce or a choreography of absurdities as we saw in this case. A constitutional court ought not to pander to narrow constructions which leaves substantial justice prostrate. Several courts from various parts of the world have dealt with this matter. First the R v. Sussex Justices, exp. McCarthy a leading English case on the impartiality and recusal of judges. It is famous for the precedent establishing the principle that mere appearance of bias is sufficient to overturn a judicial decision.
It also brought into common parlance the often quoted aphorism: “Not only must justice be done; it must also manifestly be seen to have been done.” Procedure and technicalities, are handmaids of law, they should never be made a tool, to deny justice or perpetuate injustice, by any oppressive or punitive use. They should not become tyrannical masters with which justice can be destroyed. Perhaps the matter was most eloquently put by Justice Chuckwadifu Oputa in the Nigerian case of Bello v. Attorney General of Oyo State (1986) when he stated: “The picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers.
Nevertheless, the spirit of justice does not reside in forms of formalities, or in technicalities, nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality. Law and its technical rules ought to be but a handmaid of justice and legal inflexibility (which may be becoming of law) may, if strictly followed, only serve to render justice grotesque or even lead to outright injustice. The court will not endure that mere form or fiction of law, introduced for the scale of justice, should work a wrong, contrary to the truth and substance of the case before it.”
(5) As the Philippines Court of Appeal put it: “technicalities, however, must be avoided. The law abhors technicalities that impede the cause of justice. The Court’s primary duty is to render or dispense justice. “A litigation is not a game of technicalities” Law suits, unlike duels, are not to be won by a rapier’s thrust.’
Technicality when it deserts its proper office as an aid to justice and becomes its greatest hindrance and chief enemy, deserves scant consideration from courts. Litigations must be decided on their merits and not on technicality. Every party or litigant must be afforded the amplest opportunity for the proper and just determination of a matter before the court. If technicalities were to be the essence as opposed to justice what will societies be “but organized armed banditry”?
It is quite clear that the legal reasoning of the three judges is flawed. It defies case law from around the world. The petitioners have been denied their panoply of due process rights guaranteed under the Zambia constitution –the right to be heard by an impartial tribunal. The technical argument is used as an excuse and does not appear to be the real reason for the conduct of Justices Mulonda, Mulenha and Sitali.
There are many facts which suggest that there were other factors at work. Judges were receiving death threats and being threatened by leading Government officials and party officials. At no time did the court complain about this nor did the Attorney General as leader of the Bar seek to protect the judiciary from harassment. It is interesting that the same judges are not in a hurry to rule on the petition by the petitioners pursuant to 104 (3) which asked the Court to order in line with the constitution that the Speaker of the National Assembly act as president during the duration of the election petition.
Article 104 (3) clearly states that: “Where an election petition is filed against the incumbent, under Article 103 (1), or an election is nullified, under Article 103 (3) (b) the Speaker shall perform the executive functions, except the power to- (a) make appointment; or (b) dissolve the National Assembly. Here we see no weekend meetings by the three judges to rule on this application. Lungu ignored this provision of the constitution with impunity and the court connived and condoned the impunity.
While the behavior of the lawyers must always be respectful to the court and the court is right to admonish the petitioners’ lawyers for any misconduct they might have engaged in, it is inconsistent and a show of partiality of the three judges to fail to criticize the behavior the respondent’s lawyers for failing to turn up for court on September 5. (Unless of course they had sought and got permission at the illegal weekend meeting that decided to overturn the majority verdict). A court that is impartial would have admonished both sides.
The problem in Zambia is that the Judiciary branch of government is clearly beholden and subservient to the Executive branch. The courts are plagued by political influence and endemic corruption. The lack of clear separation between the judicial and executive branches of government has led to a harmful politicization of the judicial system. The lack of a transparent system for the appointment of judges and the concentration of the appointment system in the presidency has meant that appointments and promotions in the judiciary are based on political patronage rather than merit undermining both the professionalism and the independence of the institution. As Professor Hansungule and the Post News Papers have pointed out, even the Zimbabwean Courts have fared better. The Zimbabwe courts have ruled in favor of freedom of assembly, declared the offence of insulting the President unconstitutional and made many other admirable decisions on the rights of citizens.
A sad development in Zambia is that those that wish to enforce their constitutional rights are victimized twice. They are called selfish and are labeled tribalists. A coterie of job seekers and their night pastors, priests and ex priests call on them to make peace for the sake of the country whatever peace means in this situation (maybe they are expected to accept the peace of the grave). In a strange twist of events, the victims become the villains when in fact it is despots who are the problem. What is at stake in Zambia is the capture of the state by a small connected group of people, the entrenchment of acolytes in top posts, the collapse of state institutions because of cronyism and the looting of resources for personal gain. This group is lawless and knows no boundaries. But the only reason for the triumph of evil is for good people to say nothing.
By preventing Zambians and the world to hear and see the facts contained in the petition Justices Mulonda, Mulenga and Sitali have tried to legitimize the 2016 sham and massively rigged election and provide a veneer of legal authority and expertise to a fundamentally flawed electoral process. They tried to cover up the partisan and partial – some would say – near criminal) incompetence on the part of the Electoral Commission of Zambia whether in terms of pre-election arrangements for the poll or in the delivery of results. They protect and immunize the criminal behavior of top officials of the Electoral Commission.
However, Justices Mulonda and Mulenga and Sitali have failed dismally in their efforts to cover the criminality and abuse of office perpetrated by the Electoral Commission of Zambia. The facts are too stark to be hidden, not now and not in a hundred years. You can never hide a fire; the smoke will betray you.
The beauty about Court proceedings is that they record history. Hundreds of years from now our great grandchildren will learn about the events of today in the same way we learn from the Nuremberg Trials of Hitler’s atrocities and the Rwanda Tribunal of the Tutsi Genocide. Their Monday “judgement” cannot overturn the Friday full bench decision to grant the petitioners their constitutional right to be heard.
Their Monday ‘judgement” only starkly shows to all good people the world over that not only is democracy dead in Zambia, but those chosen to defend and protect its existence are the very ones responsible for its death. The unfortunate thing about judicial irresponsibility is that those who do the harm are still addressed as “honorable”. Indeed, in a stirring valedictory speech in 2005, from the Nigerian Supreme Court, S.O Uwaifo had this to say: “A corrupt judge is more harmful to the society than a man who runs amok with a dagger in a crowded street; while the man with dagger can be restrained physically, a corrupt judge deliberately destroys the foundation of society and causes incalculable distress to individuals through abusing his office, while still being referred to as honorable”.
Suffice it to say that the Court which is the last hope of the common man has betrayed the ordinary Zambian citizens and it is sobering that the men and women who are behind this betrayal should ordinarily be men of honor. How sad. If gold can rust what then happens to iron? Indeed “ill fares the land: to hastening ills a prey where wealth accumulates and men decay.”
L.T that screaming headline is not necessary. You’re now part of Daily Nation & public media. Professor is only stating facts. Only PF cadres have praised those judges & some still want them punished for delaying Edgar’s inauguration. Please be factual & moderate
Has the Proffessor also looked at the judgetment that was passed on Friday night? Was is in accordance with the law? The ranting from this so called proffessor has just exposed him. We know you as a Tonga proffessor who was probably promised a ministerial position by HH. As a learn man with the interest of this country at heart, You should have followed this case from the start and analysed issues accordingly. Do you agree or disagree with the consitution that this case should have been closed after 14 days? If you cant guide us on this question then consider what ever u have written as total Rubbbish and you are not worthy a proffessor but a mare UPND cadre.
Ooh Apologies I have read the Proffessor’s rantings on the 14 days issue. I cant believe it is coming from a proffessor. Shame.
Lozis, Tongas, luvales, lundas, Kaondes, what is going on is all part of a well orchestrated plan to instal bemba dominance in Zambia and render other tribes as second class citizens. STOP speaking Bemba, STOP listening to bemba music, STOP growing maize to feed bembas(let them fend for themselves for once in their lives), start selling your fish, cattle, goats and pigs to Angola and DRC. Let’s join hands STOP this Bemba hegemony.
@Ask Munkombwe
The virtue of a man is known by his ability to hold a debate without diatribe.
What is a Tonga Professor or a Lozi Doctor or a Luvale Nurse or a Bemba Chef? This is nothing but tribalism. Either he is a prof or not. Go to any law school and you will get the answer.
The Prof has presented what is good material for any jurisprudence discourse. Although, this perhaps is beyond you from the quality of your intellectual paucity.
A classic armchair critic.
Another tonga bull is ranting like 99% of his tribesmen. What is wrong with these people? Time they accepted defeat. Their tribesman lost in a clean and transparent way.
We saw his rants coming. Yes go on prof, i like your Dundumwezi loyalty to your man,HH.
And proffessor let me state here that the con court has not betrayed me as a Zambian. It has instead protected me from economic looters and thieves of privitization momey. Thank God for the concourt. Zambia shall never fall into the hands of the devil worshippers. This is proof to the world that God is above any Man’s law. He has done it for us. Our president shall be non other than president Edigar Chagwa Lungu.
Ndipo this tribe bazativuta nditu. When you see names like Mweetwa, Chipenzi, Ndulo, Hansungule, Hichilema, Hambaba and Hakontoka you even know that they are standing on the UPND pedestal and against the ruling government.
The professor has raised very pertinent issues. Our judiciary is under serious question. Unfortunately we may try to bury our heads in the sand but it looks like this issue will not go away. Some people are wishing for the issue to die but its gazing back at them with mighty strength.
Who told Mr Ndulo that the judgement of that Friday midnight was unanimous? Do we even know that they voted on the matter? No, we don’t. Ndulo should know that even in the USA, a majority split decision of the court is a court decision. Hasn’t he ever heard of collective responsibility? This guy is now turning out to be an embarrassment.
Either Ndulo does not understand issues or he has been mislead by falsehood.
Ndulo is writing purely from misinformation or a pure lack of understanding.
He says in his 4th point that,
” Article 103 should not be interpreted to deny the petitioners their rights to be heard”
Aaah, alleged professor! How do I hear you when you choose not to speak?
Ndulo, the petitioners were accorded chance as per the demands of the constitution, but these petitioners chose not to be heard by avoiding to talk about their own petition.
Instead they chose and preferred to talk about other matters as they pleased until the time allocared to the petition by the constitution expired?
So now you, Prof. Ndulo, did you want the judges to hear themselves or to hear the petitioners?
In fact…
Ndulo is another Regionalist hired by the likes of Mahtani, Mmembe and HH and so we are not duped by the cloaking of biased specious legal arguments which failed in Courts.
SHAME ON THEM.
In fact the judges heard the petitioners as they chose to present what they preferred, i.e. the preliminaries and the judges made rulings on each of them.
As for the main petition the petitioners chose to avoid it until time expired, you wanted judges to force the petitioners to do what they did not want?
How do you hear ‘Ndola’ when I shout, ‘Lusaka!’?
This is why I say, Mr alleged professor, either you do not understand issues or you have been misinformed. There are terrible flaws in you article.
@Ask Munkombwe:
Of course you cant believe it coming from a professor because you are an ID.IOT; a mere PF Mother Fuc.king cadre without brains. Put that sh.it in your grandmother’s stale pus.sey!
@ 1.3 Mushimbei you are very ignorant. That’s why we say ‘umwana ashenda atasha nyina ukunaya’. If you travelled and mixed you would find that your rants are misplaced. Go to Luapula, Northern and Muchinga and find fish, kapenta, farms etc. By the way caterpillars are more nutritious than red meat – fact.
There is no more respect for the rule of law in Zambia. Even the dumbest guy in the world can see that something is amiss with what happened concerning these three judges. Something happened between Friday and Monday, that made the three judges to change their tune by Monday. Going against their own decision which they had made on Friday clearly exposes them as incompetent, and calls into question their qualifications with regard to handling of Constitutional cases, not only in this instance, but in the future cases too. Had they maintained on Friday that “Time had run out for the petition hearing ,” maybe they could have retained some respect, instead of collectively adjourning the hearing to Monday through Thursday the following week, and then suddenly the three deciding that no…
(Continued)… more petition hearing by Monday. I mean, they didn’t realize that on Friday when they were collectively adjourning and promising everyone that the hearing would resume on Monday? Whether the answer is yes or no, it only exposes them as grossly incompetent. Come on. You don’t need to be a legal expert to know that something is not right here. There is clearly a miscarriage of justice here.
Another thing in line with what professor Ndulo pointed out — it’s true that African presidents (Executive branch) seem to be accorded way too much power, which makes it easy for them to abuse it and think they can do whatever they want with impunity. Checks and balances hardly work in Africa, because the 3 branches of government, Legislature, Executive and Judicially, fail to be…
(Continued)… independent and constantly falls under the manipulation of a president. In some cases, where you have a multi- party system, depending on the president who comes into office, his intention may be to make it impossible for the opposition to function, reducing them to a point of insignificance. This leads to a one party state, where the president, his party and the government becomes one and the same thing, which spells the death of democracy. In the United States, the three branches of government are generally regarded to be co-equal and independent of each other, even though Congress (Legislature) is technically regarded to be above the President (Executive). In fact, an American president does not have the virtually unlimited powers in his own country, that African…
(Continued)… presidents wield in their countries. An American president’s executive order can be easily blocked by a simple judge (Judiciary) somewhere in one of the States. But not so in Africa. With most African countries the president calls all the shots either directly or indirectly through corruption thus frustrating the democratic process. African countries need to find a way to reduce excess and unnecessary powers conferred on the presidency, which get in the way of democracy, and hinders progress as a continent.
What is the difference between: Article 103 (3) provides that “the Constitutional Court may……… and Article 103 (3) provides that “the Constitutional Court shall…..
QUOTE: “On the question of the 14 day period, Article 103 (2) provides that “The Constitutional Court shall hear an election petition relating to the President-elect within fourteen days of the filing of the petition.” There is no consequence provided for exceeding 14 days. Besides the section talks about “hearing.” It nowhere mentions “determining.””
INTERESTING! SO IF THE 14 DAYS IS JUST FOR “HEARING”, CAN PROF NDULO THEN TELL US WHAT UPND LAWYERS PRESENTED TO THE COURT WITHIN THOSE 14 DAYS WHICH WOULD HAVE MADE THE COURT TO MAKE A “DETERMINATION” OUTSIDE OF THE 14-DAY PERIOD? BECAUSE ALL WE SAW IN THE 14 DAYS PROVIDED FOR FOR THE PETITIONERS TO BE “HEARD” WERE AMENDMENTS AND PRELIMINARY INJUNCTIONS. THIS IS THE KIND OF LOGIC I DON’T GET!
EVEN HH/GBM LAWYERS NEVER DISPUTED THE FACT THAT THIS CASE WAS CONSTITUTIONALLY TIME BOUND (BY THE 14 DAYS). WHAT THEY CONTENDED WAS WHETHER “WEEKENDS” (SATURDAY AND SUNDAY) WERE TO BE COUNTED AS PART OF THE STATUTORY TIME LIMIT OF 2 WEEKS.
“…The lawyers are also relying on the Constitutional interpretation as provided for in Article 269 (d) which states that weekends are counted if the days of the matter exceeds 6 days
UPND lawyers, on the other hand are contending that the 14 days will end next Thursday on 8th September 2016 if weekends are excluded…” (quote from LT Headline stories on this topic)
SO IT SEEMS EVEN THE PETITIONERS’ OWN LAWYERS DO NOT AGREE WITH MR. NDULO ON THIS POINT. EVEN THEM DIDN’T THINK 14 DAYS MEANT START OF “hearing”. NOT ONLY THAT, THE COURT…
QUOTE: “The three judges’ purported to dismiss the petition a remedy not provided for in the constitution…Their purported judgement is therefore standing on nothing and the law is trite that you cannot put something on nothing and expect it to stand, it must surely collapse.”
ISN’T THIS CONTRADICTORY IN ITSELF? HOW COME MR. NDULO THINKS THAT IT WOULD HAVE BEEN PERFECTLY LEGAL FOR THE COURT TO “put something on nothing and expect it stand” WHEN CLEARLY THE CONSTITUTION DOES NOT SUPPORTED ANY “hearing” OF SUCH CASES OUTSIDE THE 14 DAYS? THAT IS EXACTLY WHY THE PETITION CASE ”collapsed”. ANYTHING AFTER THAT IS SIMPLY ACADEMIC.
QUOTE: “The only logical conclusion is that the three judges (Mulonda, Mulenga and Sitali) caucused on their own over the weekend and decided to overrule the subsisting ruling of the full bench.”
I AM GUESSING MR. NDULO IS REFERRING TO THE RULING THAT HAPPENED ON FRIDAY, 2ND OF SEPTEMBER (THE SUPPOSED LAST DAY FOR THE PETITION CASE.) WAS THAT RULING REALLY BY “the full bench”? BECAUSE, ACCORDING TO NEWS REPORTS/HEADLINES, “Constitutional Court President Hildah Chibomba ruled just before midnight that since the petition had not been heard due to the events of the day, the petitioners will need to find lawyers and commence trial on Monday.” JUST ASKING!
NOW WHAT “events of the day” WAS SHE REFERRING TO? WELL, IF YOU REWIND THE TAPE AND YOU WILL DISCOVER THAT PETITIONERS LAWYERS ABANDONED THEIR CLIENT IN COURT. OBVIOUSLY IT WOULD HAVE BEEN IMPRUDENT AND INAPPROPRIATE FOR THE COURT TO PROCEED WITH THE RULING AT THAT POINT. IN FACT, HH AND GBM SEEM TO HAVE KNOWN THIS. AND THEY LATER ACKNOWLEDGED AS MUCH!
“The Petition could have COLLAPSED yesterday but it didn’t…Somehow when we were left just the two of us with my colleague GBM and I …it was now our time to take the stand and just at that moment my mind switched from concern to opportunity…We saw an opportunity and we took the opportunity…we spoke and today and those that were celebrating that the inauguration will be on Sunday are now crying…”
FOLKS, THESE ARE THE FACTS THAT CHARACTERISED THIS CASE IN THE PREVIOUS FEW WEEKS. IT ABOUT TIME PETITIONERS, ESPECIALLY THEIR LAWYERS, OWNED UP TO THE MISTAKES THEY MADE IN PRESENTING, OR THE FAILURE THEREOF, THEIR CASE IN COURT WITHIN THE AMPLE 14 DAYS CONSTITUTIONALLY PROVIDED FOR. BLAMING OR CONDEMNING THE CONCOURT IS A COMPLETE ‘COP-OUT’!
He says, “legitimize a sham and massively rigged election”. Ndulo, you have NO empirical evidence that the election was rigged. Be more candid, and in fact it would be more plausible if you lectured your tribesmen on how to accept defeat and respect for the rule of law. The Zambian people spoke through the ballot on who their preferred candidate looked like. Get over it and stop stimulating your brain cells because to me you sound like any other classroom professor: critical of all intelligent minds in the field while you struggle in the class.
WE WENT TO SCHOOL AND WE WERE TAUGHT TO BE BRIEF AND TO THE POINT UNLESS IT IS AN ACADEMIC PAPER OR SOME KIND OF ACADEMIC REPORT.
==================
These learned crooks are missing the point day in day out. The concourt sat at some point and concluded that the HH petition was gonna end at 23:59 of the material petition deadline as per concourt requirement. From where I stand, the 3 judges and respondent lawyers recused themselves from committing a constitutional error of judgement. Since the conlaw also has a voice which is not loud, some one had to standup for it.
Mr. Ndulo seem to NEGLECT one an important PRINCIPLE in Law called INTENT. If a Law is SILENT on some aspect of an issue, it is perfectly legal, and has been used many times before, to look at the INTENT of a particular Law. Many Court jurisdictions around the world, just like in Zambia, make use of this Legal Principle all the time.
Surely, he can’t tell us that the INTENT of the 14-day period in Article 103 (2) was simply put there for “HEARINGS” and left “DETERMINATION” to the whims of the Court Justices and their Calendar. Who knows if this might take them a day, a week, a month, a year, even several years to determine?
I mean, even Mr. Ndulo must know this is simply absurd!
@1.3 Mushimbei
Is Lungu a Bemba? Why do you hate Bembas for what they are not?
There is no other Professor Ndulo but Professor Ndulo. One of the best constitutional professors in the world. He states facts. Just facts. Only facts. You are one of the greatest children of this land. May God bless you, May God keep you. May God enrich you. For it is better to be right and do the right thing in the eyes of God than to pander to ignorant, arrogant, selfish, corrupt, decadent creature that is man.
@yambayamba, you are leaving out facts just to suit your ego and support illegalities. Prof. Ndulo has raised the issue of using technicalities to dismiss a case and deny petitioners justice as well as the fact that the judges sat on a wend to change the decision as well as the lawyers not appearing in court on Monday. Really you don’t see my injustice in this. All you see is 14 days which is also in contention. Again, I have not heard any of you guys disputing the fact that the Pres. Elect should have stepped down.
ALARMIST MVUNGA
Prof Mvunga is exceedingly alarmist. From the outset of the matter he called the ConCourt Judges “cadres” and all sorts of unprintable versions How can a Judge be so obsessed with scorn on judicial officers? This man could have been promised a very high-ranking job just from his flying in and out of Zambia during the just-ended elections. The 14 days ultimatum even if we are not Lawyers clearly gives the Court jurisdiction and authority to determine a matter during that specific period. To wit that the absence of the word “determine” would leave the Judges with no mandate to make a decision is surely Mvunga’s real frailty as a legal scholar! Zambia needs professors, yes, but not of such like, who are partisan and bent on instigating anything from violence to…
The US based UPND financier, PROFESSOR MUNA NDULO, is understandably infuriated with the actions of the three judges. Yet he also forgets that the lawyers of the petitioners were trying to buy time by failing to provide evidence withing the legally required time and chose to walk out on the court despite earlier committing themselves to the case.
Justice Chuckwadifu Oputa in the Nigerian case of Bello v. Attorney General of Oyo State (1986)
“The picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers. Nevertheless, the spirit of justice does not reside in forms of formalities, or in technicalities, nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality. Law and its technical rules ought to be but a handmaid of justice and legal inflexibility (which may be becoming of law) may, if strictly followed, only serve to render justice grotesque or even lead to outright injustice. The court will not endure that mere form or fiction of law, introduced for the scale of justice, should work a wrong, contrary to the…
The court will not endure that mere form or fiction of law, introduced for the scale of justice, should work a wrong, contrary to the truth and substance of the case before it.”
From Philippines:
The law abhors technicalities that impede the cause of justice.
The Court’s primary duty is to render or dispense justice.
Law suits, unlike duels, are not to be won by a rapier’s thrust.
Professor, I are you sympathizing from afar, you should ‘ve been here as a patriotic Zambian to give guidance to the Court you’re tearing apart from outside this country. Your tribe also is against what your saying. This country will never be ruled by selfish people championing their tribe above others, no. This is why I find it interesting to hear GBM and the fallen Pastor Mumba trying all they could in justifying the branding of upnd as to appear multi tribe, the voting pattern speaks against them. Unless upnd shows the citizenry of this nation that they mean well for this country and motto; One Zambia, One Nation, they’ll never, never rule this country.
Address the issue of corruption of the judiciary raised in the article instead of getting tribal…put your counter arguments to those of the Professor.
@Sindamisale,
How do you expect someone to address an allegation without evidence? Let Ndulo bring evidence then someone can address it.
I expect the logic to such must not be far fetched. This is the same behaviour and conduct the petitioners exhibit – make so many accusation but avoid presenting evidence. Why should evidence be a secrete if indeed you are a true petitioner.
Since they had no evidence, they wasted time on purpose and calculation so that they can come and cry that they have not been heard. Even kids can see that type of trick, it is a weak one.
@ Kasangani 111, …Weak empty rebuttal. Challenge the facts Dr Ndulo has raised instead of veering into something else.
@Peace for Zambia. From a neutral point of view you seem to be RELENTLESSLY misleading everyone on the fact that the Petitioners did not use the time they had for the Concort to hear their case. Judge Sitali on 30 Aug ruled that the hearing was going to start on 2 Sept and end on 8 Sept. On 1 Sept this ruling was changed by the same Judge Sitali who informed the Concort that the whole case will be heard and completed on 2 Sept. On what basis are you accusing the Petitioners of wasting the time they had to have their case heard? Did the Petitioners have authority to instruct the Concort on when the hearing could start? Let’s be factual to create a healing environment for a better one Zambia one Nation.
@3.4 Kuzanga
You and I know very well that we are human beings, right?
If someone came to us and told us that we are elephants, would we believe and agree?
The petitioners were being represented by lawyers and these lawyers knew what the constitution says. Why did they no know that that was a wrong position.
You may say that they are the judges, well suppose a judge tells you that you are a kangaroo, are you gona say it’s fine because the one who has said is a judge, yet you already know that you are a human being?
Kuzanga you have raised something interesting that to this day is still mind puzzling. Armed with the ruling from Justice Sitali on the 1st of September that hearing would end on 2 September…why then did the petitioners not bring evidence on the stealing of votes between the 1st and the 2nd of September.
Was not even 12 hours enough to say ..PF and the ECZ stole our votes in this manner and this is the evidence? Why are we not hearing that the UPND lawyers at least made this attempt even from the morning of the 2nd or all those days preliminary were debated? If they had thrown their weight from that morning upto mid night we could have heard how votes were stolen and this case could have taken a different turn.
What were they waiting for? Could the professor shade some…
Could the professor shade some light on the time frame of 14 days. Wasn’t this meant to protect the respondents and the entire nation from abuse of court process by people who do not want to accept poll results. Is the 14 days merely a technicality or law meant to protect the nation from abusers?
I also see the professor believes the votes were stolen.Fair enough . So who was supposed to tell the court about these stolen votes in the prescribed 14 days since the UPND lawyers didn’t bother to do it. Wasn’t the very act of court petitioning and the hearing at the courts the exercise of HH and the UPND’s fundamental rights. Now the right to be heard was never utilised … whose fault was this ? The court’s or the petitioners ? The rights of the respondents and the entire nation had to be protected too and the protection is in the 14 days restriction. This can not be about HH and UPND only they made an election not to be heard .. no one from PF barred them from revealing how votes were stolen. And judges interpreted the law correctly and by they way they voted . Professor…
@3 Kasangani III
It’s the correct interpretation of the statute versus its misinterpretation that has been at issue. Several Constitutional Law Authorities, the like of Professor Ndulo, as here, have weighed in on the subject. Surprisingly, it’s us, the likes of people such as I, who, by all accounts, have not read even a single chapter of a Constitutional Law Textbook, who are busy insulting and castigating these authorities, accusing them of ignorance and of not knowing what they are talking about!
We are more comfortable to interpret the law the way we would like it to sound and to be interpreted; we are not, to let these authorities interpret it for us. And yet, if there is one case in Zambian Constitutional Law that is supposed to carry precedence, it is this very one. But…
Continued:
………….But why may we expect the courts to not trample upon such deplorable precedence henceforth? Or are we insistent on this – to interpret the law our way just so we are able to get what we want, just for this time being?
Who doesn’t know that fake professor ndulo is upnd..? Jealous yaminyokola…! Lunch is president..!
He is not fake. If you ever will do law, its unlikely that you will pass Law of Evidence and Criminal Law without reading the texts by this erudite son of the soil.
And now, address the issues he raises and his eloquent exposition of the role of the ConCourt when a petition is lodged and the fraudulent criminal conduct of the incumbent who was president-elect and was petitioned under Article 104(3). A petition was filed against Lungu, an incumbent President, what did he do? He abrogated constitution. And you celebrate impugnity?
Why addressing the issue of corruption when the Proffessor himself has shown us his traits of corruption? He has written this blind article insulting our judiciary all becoz his tribal man has failed to win these elections. Is that not corruption.
if you are going to write any scholarly paper about Zambia that has an element of law, you will read papers written by Prof. Ndulo. I wonder if the people calling Ndulo fake professors are professors themselves. They can’t even light a candle to “Dr. Kambwili.” Zambia has a sufficient supply of sycophants to last a million years.
Before you call Ndulo a fake professor, let’s see your argument posted on LT. I want to believe LT will be more than happy to receive papers from all you uncredentialed “learned” men. I say men because women are too smart to make such poor arguments.
Who said that if you have an academic paper then you have integrity?
The spirit of integrity has deeply been slaughtered in Ndulo’s article – anyone can see that. Is a question whether one admits or pretends.
Being professor has never created integrity in an individual.
We have seen people in this world who have used their academically acquired knowledge to steal.
Who said doing wrong is always a result of lack of education.
Often times education is responsible for most of the high level crimes committed in this world.
As long as the heir is no integrity, your doctorate or professorship needs much to be desired.
Prof. Muna Ndulo, don’t reduce yourself to a UPND political cadre. The HH you are supporting has no democratic credentials, he is inherently worse than Lungu. HH has attributes of your spoilt Donald Trump where you live there. So stop laundering your HH.
Address the motion instead of insulting…
Until we try him, we have no reason to trust you.
This is the same useless argument people made about Sata. He turned out to be less dictatorial than his accusers. At best, Sata was an “absentee landlord.”
Point is, focus on the issue and not the person.
ZAMBIA….THE NEW ZIMBABWE.The next 5 years will be a very interesting period for Zambia.The economy will continue to decline,cost of living/inflation skyrocketing,more job loses,more load shedding,increased poverty while the Concourt judges,ECL and his minions become wealthier.
And then you start crying “No..ECL is not delivering on his promises”.My answer to you will be “Screw You with your Ifinintu Ni Lungu and Dununa Reverse”.FYA KUYIFWAILA…Just suffer silently and don’t disturb us.
The three unwise judges were paid off to ensure Lungu’s continuity and with it also job security for themselves.No election petition should be heard in such inexplicable speed.
I thought HH said he controlled the Shushus why didn’t stopped the corruption b4 it happened… We are aware the 2 judges were paid by HH. That is corruption
HH promised the whole Tonga clan jobs in his government….baloba ilyauma….mwailasha ba pompwe…Come Tuesday no more stupidity.. Edgar Lungu is about to unleash his big stick.
What tribe are you Professor Kachema Ndulo?????
I guess it’s in your blood line even Education can’t shake tribalism out of you dull professor Ndulo
Edgar Lungu 5 more years
Now go drink poison if you want…
I thank you
@Katondo boys
It’s not about govt jobs. Many of us have never worked for nor will ever work for GRZ.
Why insult instead of rebutting the recitation of the law by Prof. The law is there, signed by the criminal who broke the law, Lungu.
Yes, you do sing praises to Lungu because you want your life of largesse and sleeze to continue. Hey not all depend on Lungu. Many don’t and will never depend on GRZ. Not today, not ever. There are Zambians who abhor corruption, theft and plunder. They will resist intifada style the corrupt and plunderers.
And get to grips with what Prof is arguing and show us substance instead of insults….
@Sindamisale
I have a question for you…..am not insulting anyone but let me ask you this….WHY DID THE ENTIRE SOUTHERN PROVINCE VOTE FOR HH……WHY?????? We can’t just pretend like tribalism doesn’t exist…my sister works as a Doctor in Choma and she is always a target of tribal attacks…not physically but she has been verbally attacked on several occasions
So Mr Sindamisale I don’t know what tribe you are but let’s call a spade…a spade
Edgar Lungu has been given a 5 year mandate by the people of Zambia
By the way….Canisius Banda is now positioning himself to take over from HH…let’s see how that works
I thank you
@Katondo boys.
Debate is the lifeblood of democracy. Exchange and challenge of ideas. Tackles of merits. That is what maketh a nation great. So let’s tango.
The question I would like to ask you is why did North Western Province proportional vote more for UPND than Southern Province? Why, Why???
Next, why did Western Province in droves vote for UPND? Why, Why???
And why, why did Mpika reject UPND despite Mulenga Sata, Guy Scott? And same for Kasama in case of GBM. Why, why??
@7.2 Katondo boys
Your question is hopelessly redundant.
This Article from the Professor is true to the fact
U r rotten to the core..
Donchi think with your tribe u f001 ..use God given free brains
FATS AND TRUTHS? BUT your professor has deliberately not talked about the fact that the 14 days to be heard expired. That on Friday, HH pleaded outside the mandatory to be heard. His judges recused themselves but only to reappear on Monday. The idea of 14 days is to allow anyone with evidence to present it. The court will then determine the case within reasonable time. This law is new to Zambia but it is meant to stop the old law where petitions went on for years while the elect president ruled. But it also stops those with or no evidence not to hold the nation to ransom. So where did the so called full bench get the powers to agree with HH political statement in a stage managed “abandonment” by his lawyers or to be back on the legal on Monday?
Prof Ndulo and Hansungule are the two…
All who are condemning those three Judges have they taken time to read the amended constitution in regard with time computation?
To the young people of Zambia.
You have a future before you. Many of you are from mixed tribes, courtesy of we your parents.
The world you will live in will be challenging and will require intellectual and philosophical understanding and engagement.
Look at issues with a critical mind. There is in front of you a serious indictment of the Judiciary. Google the Constitution of Zambia (Amendment) No. 2 of 2016 and delve into Articles 45, 101-105 and compare with what Prof is arguing.
Be blessed.
Bitterness and anger shields the favour of God upon your life. The heart is so wicked and deceitful that it even deceives oneself. God looks at the heart of men to see those who have willingness to serve His children. Lawyers are human beings with heart and those whose hearts are in line with the desire of God upon His children will receive favour in their discharge of duty. The wicked ones will remain wicked because the work of the wicked is wickedness. You are enjoying yourself outside your country that you are condemning with a passion. Shame. RSA has a huge problem in human dignity and rights of the victims as even aggravated murder has bail. Where are RSA professors? I have never heard any RSA professors attacking their own the way Ndulo has done it. UPND cadre I guess and leaking…
14 days ni 14 days bane. How do you count your cattle you Tongas kanshi?
Anything else to say to those of us in North Western Province, Lambaland, Soliland, Lenjeland, Western who like the Southerners want the petition to be heard on merit and understand why Lungu’s criminal conduct on Article 104(3) is not treason?
Hiding criminality by Tonga lashing will not do. This criminal conduct of Lungu will not be erased, not even by changing the Consitution!
Imagine, to them 14 days is just a technical issue and therefore less important. It was put there to serve a very important purpose
We are just waiting for the inauguration of the president.
Then we will not be reading all the insanity, please give us the the president. Indeed the winner of the elections full stop.
We will go to business as usual, and waiting for 2021.
“Judges were receiving death threats and being threatened by leading Government officials and party officials. At no time did the court complain about this nor did the Attorney General as leader of the Bar seek to protect the judiciary from harassment”
Prof you have been watching too many mafia movies. They did not complain because such threats and harassment did not happen.
Ele kwati ka tribalism mu ba To ga ka luba ko bad mwe. Na ba professor? Education and living in the diaspora yafilwa uku fumya ka tribalism!!! This is bad nwe
Instead of this long legal treatise from the professor, I would like him to answer these very simple questions:
1. Who between HH and ECL obtained more of the validly votes cast and went above the 50 percent threshold??
2. Who between ECL and HH has more members of parliament?
3. Who between ECL and HH won in the two most cosmopolitan provinces – Lusaka and the Copperbelt?
4. Who between ECL and HH doubled his votes in Southern province?
5. Would the professor prefer election outcomes to be settled in an election booth or court of law?
On the basis of how you answer the preceding questions, who deserves to be president of Zambia?
Boss this professor is too dull I don’t think he can answer these simple and straight forward questions.
I can answer for you:
1. Who between HH and ECL STOLE the validly votes cast and went above the 50 percent threshold??
2. Who between ECL and HH has CORRUPTLY more members of parliament?
3. Who between ECL and HH STOLE elections in the two most cosmopolitan provinces – Lusaka and the Copperbelt?
4. Who between ECL and HH doubled his votes in Southern province? It’s Lungu!!!
5. Would the professor prefer election outcomes to be settled in an election booth or court of law? Read Articles 103 of our Constitution.
@16 FACTS: 1. Prof Ndulo should ignore this question; ConCourt should answer it. 2. @ FACTS and many bloggers do NOT understand the words HEARING and DETERMINING: a. HEARING in law means receiving evidence, which includes presenting oral evidence and documentary evidence. For election petitions this further includes, if applied for, scrutinising the ballots, another word for recounting and auditing the ballots. So there has been NO HEARING. b. DETERMINING follows the hearing and means analysing the evidence presented, considering the arguments and legal authorities presented by each side and then making a ruling or judgement thereon. 3. So there has been NO DETERMINATION of the Petition and hence NO JUDGEMENT///
Mr. Miyanda, you and the Prof seem to NEGLECT an important PRINCIPLE in Law called INTENT. If a Law is SILENT on some aspect of an issue, it is perfectly legal, and has been used many times before, to look at the INTENT of a particular Law. Many Court jurisdictions around the world, just like in Zambia, make use of this Legal Principle all the time.
Surly, y’all can’t tell us that the INTENT of the 14 days in Article 103 (2) was simply put there for “HEARINGS” and left “DETERMINATION” to the whims of the Court Justices and their Calendar. Who knows if this might take them a day, a week, a month, a year, even several years to determine?
I mean, even you Mr. Miyanda and Mr. Ndulo must know this is simply absurd!
Ba Miyanda,
Who has given you the license to answer on behalf of Professor Ndulo? I expect the Professor himself to respond to the questions I have raised. You have not even satifactorily responded to the questions addressed to the Professor. Instead you are just being evasive and focusing on issues of hearing and determining the petition without addressing the questions I have posed.
Ba Solochi,
Please be a bit more mature in your responses. Your responses are just the usual emotional stuff characteristic of UPND cvadres – devoid of any empirical fact, but full of baseless allegations and accusations.
I WOULD RATHER RELY ON THE REAL PROF. PATRICK MVUNGA not va tonga gonga…anamichita kantu lungu …fake prof ..he was promised a job by relative hh just like Hansungule fimofimo
prof has stated some interesting facts and clear references to the law. however, he falls short when deliberating about the 14 day period by simply saying that there does not seem to be an apparent consequence in extending the period. how ironic!
Ifikopo fingi muli ba pf.
Yes and expect the same fikopo to be ruling you for the next 5 years….and beyond
UPND is full of Tonga professors….are you happy now
Edgar Lungu 10 more years
I thank you
@Katondo
I am waiting for your responses.
Also add this one: Why is it that you support Lungu’s criminality on Article 104(3)? Will you only realise that breach of the Constitution is fundamental when your own is denied justice by breach of same?
@19.2 Sindamisale – Are you some special kind of nincompoop? Article 104(3) refers to a situation where there is a re-run, i.e. second ballot. ECL’s position is governed by Article 101, i.e. first ballot and is not linked to any other article in the constitution. On the other hand, articles 103, 104 and 105 are linked as stated within the same constitution. ECL is protected under Article 101 as he won more than the required 50%+1.
@19.3 Ricky Bobby?
I question your credentials as a legal expert.
Let’s avoid the tendency to parrot legal issues and leave the interpretation of law to those qualified enough to do so.
Just let them cry, weep and gnash their teeth until they can wail no more …just leave these primitive pipo – even education cant change them yaba koma chabe hh
YOU ARE LOSING IT PROFESSOR 14 DAYS IS 14 DAYS SO JUST ENJOY YOUR DOLLARS SHUT UP
@21 james phiri: Baba Phiri respectfully, you have not understood the Professor; read again. He has distinguished the Zambian provision and the Kenyan one: the Zambian Article 103 (2) provides that “the Constitutional Court SHALL HEAR an election petition relating to the President-Elect within 14 days of filing the petition” but does NOT include DETERMINING; the Kenyan Article 140 (1) (a) provides that “within fourteen days after filing of the petition, under clause (1) the Supreme Court shall HEAR AND DETERMINE the petition AND ITS DECISION shall be final”. There has been no DECISION by the ConCourt. You see you are wrong, double wrong because YOU ARE LOST and also insulting those who are NOT lost. Just debate or let it pass if you have no useful contribution.///
G. Miyanda: Which constitution is perfect? Omitting the word “determine” did not mean that determining a petition would last forever
Mr. Miyanda, you and the Prof seem to NEGLECT an important PRINCIPLE in Law called INTENT. If a Law is SILENT on some aspect of an issue, it is perfectly legal, and has been used many times before, to look at the INTENT of a particular Law. Many Court jurisdictions around the world, just like in Zambia, make use of this Legal Principle all the time.
Surly, y’all can’t tell us that the INTENT of the 14 days in Article 103 (2) was simply put there for “HEARINGS” seek and then leave “determination” to the whims of the Court Justices and their Calendar. Who knows if this might take them a day, a week, a month, a year, even several years? I mean, even you Mr. Miyanda and Mr. Ndulo must know this is simply absurd!
@Professor Ndulo aka Sindamisale
Please take your tonga nonsense somewhere else. We are sick and tired of you people.
And there you go….riveting to a tribal card. Who told you am Tonga?
See…..simple reasoning eludes you. Is the Constitution Tonga? Why do you hide your wrong doing by passing a red herring of ‘Tonga’?
If Tongas are the only ones who can stand up for the truth, then am glad to be inducted as a Tonga and hope to learn from the brave and free.
I am aware that North Western Province for a fact is solidly behind UPND.
Now face my argument and not an imaginary Tonga……respond to the law as advanced by Professor. At least Katondo boys says he can debate with me.
@22 Lucius Lyon
“Please take your tonga nonsense somewhere else. We are sick and tired of you people.” This is frighteningly tribal; disgustingly archaic. Please try to get your act together. You are not Zambia. You don’t own the whole country.
Again the 14 days issue clearly shows the Prof preference here. I don’t think it is a question of hearing and determining. It is not as if the court heard and refused to determine.
Again you can’t argue that there is no consequence to extending beyond 14 days and if that holds then there should be no consequences to NOT extending, but alas we know the consequences of not extending, but surely there would have been consequences in extending. So it is clearly that the 14 days is just being used by both sides to support their view,
Again this is glossing over over and the prof has failed again
I totally agree with you. Why should we go for 6 months without a president just becusse of some useless petitions with no evidence?
@23 MMD Chief Bootlicker: with due respect you have missed the point of the Prof’s use of the words ‘no consequence’. In law every word counts and no word is a passenger, so to speak. In “no consequence” the Prof is saying that the provision regarding 14 days does not state what happens if the 14 days expire. Therefore (my words) it was up to the Court to interpret the missing words in favour of the best interests of justice; very bad drafting. In this case justice would be better served when the Petition has been heard i.e. both sides present their case. Again remember the Constitution being signed with eyes closed?/// NB: also see @21.1 Godfrey Miyanda above.
Who paid the 3 nice judges and how much? They deserve more …. Looks like the two misfits Chibomba and Munaluka were under paid by hh… Mwaloba iya dry…..next its Bemba president ..yes my mbuyas time is 2021.even kabwili is better than your cow hh
Can the learned professor deny that he has an extra-marital relationship with one of the two constitional court justices by the name of Professor Margaret Munalula?
Immorallity us their speciality -they lov vigololo …they even fuc.k cows
@25 Imbushi
What are you now talking about?
Yes Ndulo is a professional, can’t take that away from the man. But this article let’s him down. The judges had set Friday midnight as the deadline for judgment as per consititution. But out of the blues the case was extended to Monday. The PF didn’t complain. Some how the judges realized they had boobed and decided to follow the law. All these and other details have been overlooked by the good prof. Instead he’s accused the three judges of corruption, but what makes the other two judges not corrupt? Ndulo has just exposed himself as they say “YOU CAN TAKE A VILLAGER FROM The village but you cannot take the village out of him “
@Ndanje khakis, i wish you had read the professors discourse on the 14 days proir to this article.Learn to be objective in your debates.
Spot on with the villager…..it’s true that a lot of these learned folk with fancy abroad connections are really still wearing a metaphoric Grass skirt and carrying a spear!
BC you’re the one who’s subjective because you have deliberately avoided the issue of the two judges. Your prof is condemned the three judges why? It’s because as Upnd member Ndulo would have loved the decision to favor HH. If the two judges were not “corrupt ” they would have abstained and distance themselves from the decision to toss lots as a way to handle the issue. Anyway blood is thicker than water .
@26.2 Patriot Abroad
Clever, albeit imprudent. In order to be considered competent enough to teach law at an American University, Prof. Ndulo must have been able to distinguish himself in some fashion other than “wearing a metaphoric Grass skirt and carrying a spear!” To find a teaching job in an American University is a highly competitive affair, has always been. It’s not what one would allude to as: “these learned folk with fancy abroad connections…”
Good analysis.I voted PF but the conduct of concourt judges was unprofessional.You don’t need to be PF to see that they were biased.
And may God bless you for being truthful.
Evil must be fought wherever and whoever it manifests from.
A ra.pist or murderer be it your son, father or uncle must be caged.
The ConCourt was blantantly egregiously wrong. Shout their praises but law transcends national frontiers and this will be a case study in ConCourt 101 of palpable incompetence and/or corruption.
In 14 days I expected substantive issues to be raised such as the alleged stolen vote, before the concourt but what we saw is that UPND concentrated on minor issues like ECL hands over power to the speaker.
UPND should therefore blame themselves for tabling substantive issues just before the 14 days expired thereby wasting alot of substantive time.
THERE IS NO WHERE IN THE WORLD WHERE YOU HURT YOUR ECONOMY DUE TO UNCERTAINITY OF THE POLITICAL SITUATION IN THE COUNTRY.
UPND SHOULD THEREFORE BLAME THEMSELVES FOR WHAT HAPPENED.
NEXT TIME START WITH SUBSTANTIVE ISSUES PLEASE
@Hamududu
…….what we saw is that UPND concentrated on minor issues like ECL hands over power to the speaker…..
This my bro is much bigger than even the election petition. If Lungu could not uphold the Constitution by respecting Article 104(3), how could he respect a decision of the ConCourt?
And those of you trivializing the abrogation of the Constitution will rue the day you celebrated impugnity. A dictator once created has no bounds to go after any roadblock. Ask those in Zimbabwe, Uganda, Rwanda and Burundi.
@28 Hamududu:
1. Nowadays proceedings are Court-driven. the Court sets the time table via the Order for Directions; this phase allows for preliminary issues to be exhausted. After this phase the Court, in consultation with the parties in a Status Conference, sets the date of hearing for the main case. The single judge arranged for the hearing to commence 2nd Sep to 8th Sep. This was late cnelled and then granted before Midnight on 3rd Sep.
2. Both sides participated in phases One and raised preliminary issues///
Kikikikikiki Tribalists will not rule Zed
@Sindamisale only the courts of law will decide and interpret article 104 about handing over power because at the moment the interpretations about the opposing parties seem to favour their interests.
This Prof is sounding like he is a member of the Dundumwezi political cult
This is incredible inane and mind bogglingly tedious. This man has presented his credentials and displayed his foreign connections (a trait,pseudo intellectuals have in Zambia); AND obviously we are to understand his interpretation is superior. NO. Yet again another fatuous ‘learned’ person displays how hollow their learning is. It is clear he does not know where the thrust of his interpretation ought to be. No use citing sections from the current constitution and it’s provisions, those remain intact and there has been NO deviation from what was laid down.
HH WAS GIVEN OPPOURTUNITY TO BRING HIS CASE, THUS EXERCISING HIS RIGHT TO BE HEARD. HE PLAIN FAILED TO LAUNCH HIS CASE. PERIOD. AND ALL THE PSUEDO intellectual misinterpretations will never prove otherwise. ITS THE LAW…
I would urge ALL Zambians to REFUSE to take part in HH’s Armageddon. We as citizens have the Army, Police to protect us. We never need to give lives for the Devil Agent. Satan Lost In Zambia, Glory be to God on High. Let the gov’t call a state of emergency in coming weeks, obey the rules they make and allow the streets to be made safe by the Army, to allow women and Children shelter from harm. PF Youths, work with the gov’t. Stop violating or responding to violence. Be proactive in flashing out mischievous UPND detractors in the community, but violence is providing them a cover. We pray, God look upon Zambia, Protect the innocent from the wiles of the rich man who would buy a kingdom to massage his ego. Angels over Zambia to fight the fight of Peace. It is a spiritual…
It is a spiritual battle we are experiencing and we call on God Almighty to finish this battle for us. In Jesus’ name we ask it. Amen
The Lord God bring you to shame you prophet of Baal. You have a person twisting the constitution like Nkurunziza and you claim it’s a spiritual battle. Get behind me Satan.
You are blind. Your ears are deaf. Your bad character and evil spirit allows you to speak untruths to cover truths. We know who is Baal’s Agent, he is the one that writes falseness in the face of truth. There was a hearing, Baal and his Agents failed to Serve writs, Present Evidence, even in the mist basics of court cases could not Perform. God causes the wicked man to flounder.
So put together your ‘put downs,’. all very witty, but without substance because it is written to blacken the hearts of the innocent with lies.
@31.4 Patriot Abroad
How easy to point fingers at each other, indeed even at God Himself. Are we not safe not to judge so that we are not judged? Is not this what we are admonished to do? We know who the accuser of the brethren is, Satan himself. I trust you care.
Any one who has read law at any level would agree with the prof regardless of the tribe or party you belong to. I am Bemba but very ashamed to be Zambia based on what has happened to justice. Very sad development. We need to fight for justice regardless of our tribe and political affiliation. Unfortunately the church and the courts have gone to bed with corruption. Where are the prophets or the Mandela’s of Zambia. I would rather be in prison for truth than seeing Zambia being ruined.
@Sido
HH WAS GIVEN OPPOURTUNITY TO BRING HIS CASE, THUS EXERCISING HIS RIGHT TO BE HEARD. HE PLAIN FAILED TO LAUNCH HIS CASE. PERIOD. We can cite the constitution all we like, BUT it’s what occurred that explains what happened.
It’s tough breaks for HH, BUT NEXT TIME HE MUST REMEMBER IN HIS LIFE NOT TO SQUANDER HIS RIGHTS BEFORE THE LAW. As the song goes ‘It’s A Hard Knock life da da……’
If truely you are Bemba as you have said. Ninshi uli Chipuba. Go and read the constitution and see how the people u are defending are trying by all means to technically manipulate the Constitution. The big question u need to ask your self is if the 14 days period is not applied when did you expect this case to close? You can NOT allow such a sensitive case to pend for longer than that period bcoz it is a matter of national security. You have heard in Kenya its only 7 days. be careful and reason b4 you open your mouth.
@32 Sido: well said Sido regarding unbiased, factual and persuasive contributions but not being personal:
– No hearing = no determination.
– No determination = no judgement.
– No judgement = no justice
– no justice = no conclusion of the disputed presidential election. PERIOD///
As a layman I see a lot of inconsistencies in the concourt’s performance. It sets up Friday midnight as the deadline in order to meet the 14 days constitutional requirement but just before midnight decides to extend the court hearing by another 4 days then on Monday votes RIGHTLY to adhere to the 14 days constitutional requirement. There would have been even more prominent lawyers protesting than the Ndulos had the concourt decided to hear the case beyond the 14 days period. Why did HH’s lawyers argue that they could not defend their client because of time and then the client decided to claim that his bill of rights would be infringed upon as he required new lawyers to defend him?
Even better, why did he apply to change his original skeleton argument while the case was in full fledge?? You can’t file last the deadlines, whilst you are in full hearing mode. They had NO case. This was just a detraction to smear excrement at the Office Of The President. HH has shown utter disrespect for ALL of Zambia’s instruments of Law and Order. Question is why he has not been arrested yet. Maybe on Monday the judges will remember that they can order HH&CO, to be thrown in jail for a spell for misconduct towards the judiciary.
This is about the concourt judges’ corrupt and unprofessional conduct. The petitioners have a right to be heard. It’s as simple as that.
within 14 days and not forever
I discontinued reading were he said he supports what hansungule said. I first I thought this Tonga prof has realised that his first article was a fail now he wants to correct it alas he goes to support the useless article by his tribes man in tribalism. Why can’t we for a change have a Tonga who is going to sound different. Where are all those tongas I grew up with ON CB. I have read a comment here that this ndulo has again failed the adress the 14days ultimatum because this is more important than blaming the judges. Even @katondo boys sounds more of prof than this ndolu. Next time talk about 14days and tell us whether age does not include weekends.
@35 HH Techilema: you erred when you discontinued reading; by the same measure you should discontinue commenting and come back after reading the whole statement and understand it. If you read again you will discover that he has addressed the issue. Start from that and critique his arguments for all to benefit instead of personal attacks///
Probably a waste of time answering this tribal freak. The tribal thinking has robbed it from balanced and correct analysis. The case itself was simple for any mind to understand correctly.
1. The petition was never heard due to effluxion of time. Therefore there could not be a determination of the petition, as in nullifying the election or declaring it valid. In other words its like the petition never existed therefore only the declaration of president elect by ECZ remains valid and applicable.
2. How can the freak debate the 14 days in that manner when even HH acknowledges that the cinstitution says 14 days but his only problem is that it is not sufficient to hear a petition? Now even the Kenyan constitution which the freak quotes gives 14 days “to hear and determine the case”,…
Contd….
Now even the Kenyan constitution which the freak quotes gives 14 days “to hear and determine the case”, therefore the freak is admitting that 14 days is sufficient.
3.The freak also argues the case of the president giving way to the speaker and that it was not determined. If I followed this case correctly, this was part of the main petition and the main petition was never heard therefore it never existed as I have stated above. Even if it was not part of the main case there was simply no time to hear the arguments and determine it. The judges were not bound to rule on any UPND application in the sequence they were presented. They can choose the simpler and more straight forward prelimianary issues in the quest for time and it is a wise I say. Imagine how much time this…
@36 and 37 Terrible: Prof has distinguished the Zambian provision from the Kenyan one: the Kenyan one states “to HEAR AND DETERMINE the case”; the Zambian Constitution states only “to HEAR” but excludes ‘determine’. To hear is to receive evidence; to determine is to analyse the evidence and the legal arguments and authorities by both sides AND DECIDE FOR ONE OR THE OTHER OF THE PARTIES – unlike in soccer, there is no draw in court hearings. Those criticising the Prof must provide the answer to this question: WHAT WAS THE JUDGEMENT delivered in Open Court by the ConCourt as to the Prayers by the Petitioners and the Answers by the Respondents? The purported dismissal of the petition on 5th Sep cannot stand because the judges stated that they had no mandate after midnight on 3rd Sep.///
If it was an academic research the professor would have failed a thesis meant for masters level, actually his writing falls even below an under-graduate. The only thing is that he has put the comas, fullstops, and other punctuations better than an under-graduate, but beaten in content and logic.
Either Ndulo does not understand issues or he has been mislead by falsehood.
Ndulo is writing purely from misinformation or a pure lack of understanding.
He says in his 4th point that,
” Article 103 should not be interpreted to deny the petitioners their rights to be heard”
Aaah, alleged professor! How do I hear you when you choose not to speak?
Ndulo, the petitioners were accorded chance as per the demands of the constitution, but these petitioners chose not to be heard by…
Poor Zambians must be helped incognito. Reason: you cannot have a constructive and objective discussion about most topics with most Zambians. Almost always, people resort to calling others names and start talking about tribes. FYI the moment you leave the borders of Zambia, you’re treated as a Zambian not Tonga, Bemba, Lozi or whatever (thats irrelevant). The professor has raised valid points. He is where he is and doing what he is doing not by mistake. Lets debate his points using facts and not tribes. If you have nothing useful to contribute learn from others silently. Last point. Zambians must learn to be proud of their own people who are making a positive difference in the world.
@39 X: I hear you; very frustrating. Perhaps for serious debates requiring serious responses a separate forum could be created by LT, whose participation could be restricted by prior conditions to which participants would subscribe (open to all who subscribe, but not necessarily academics). Sucha forum could have criteria both for topics and “membership”. Personally I feel that the drafting leaves much to be desired and I blame the one who signed the Amended Constitution with his eyes close/// NB: I support the arguments by Prof Ndulo; I consider them as a cry by a concerned Zambian to his people across the board as a warning about the imminent disastrous fall out following the premature abortion of the HH/GBM Petition as well as a clarion call to Zambians to stand and defend and…
@39 X:…..protect, NOT their political parties and/or leaders, but the compromised institutions of governance which have been collapsing one after the other and to restore and strengthen them so that they begin to perform in accordance with their intended purposes of serving the greater good and well being of the Zambian people.
Zambians are a passionate people.
@39 X: I meant to write “with his eyes closed”, not close: I was referring to my Article in LT dated 23 Dec 15 before the then President assented to the Constitution///
Ndulo, the petitioners were accorded chance as per the demands of the constitution, but these petitioners chose not to be heard by avoiding to talk about their own petition.
Instead they chose and preferred to talk about other matters as they pleased until the time allocared to the petition by the constitution expired?
So now you, Prof. Ndulo, did you want the judges to hear themselves or to hear the petitioners?
In fact the judges heard the petitioners as they chose to present what they preferred, i.e. the preliminaries and the judges made rulings on each of them.
As for the main petition the petitioners chose to avoid it until time expired, you wanted judges to force the petitioners to do what they did not want?
This is why I say, Mr alleged professor, either you do not…
Either Ndulo does not understand issues or he has been mislead by falsehood.
Ndulo is writing purely from misinformation or a pure lack of understanding.
He says in his 4th point that,
” Article 103 should not be interpreted to deny the petitioners their rights to be heard”
Aaah, alleged professor! How do I hear you when you choose not to speak?
This is why I say, Mr alleged professor, either you do not understand issues or you have been misinformed. There are terrible flaws in you article.
Contd..
The judges were not bound to rule on any UPND application in the sequence they were presented. They can choose the simpler and more straight forward prelimianary issues in the quest for time and it is a wise I say. Imagine how much time this particular issue would have taken, probably would nit have been exhausted even in 21 days, meaning the petition would have collapsed by the 14 days limit. Knowing that the petition was time bound by 14 days, the learned lawyers for the petitioners would have concentrated their efforts on the main issues of invalidity of the election for the judges to determine the matter. When you are booked on a plane to America for 14:00hrs departure you don’t embark on a ordering a three course at 13:09hrs and insisting to eat it all, a reasonabke person…
Contd…
When you are booked on a plane to America for 14:00hrs departure you don’t embark on a ordering a three course meal at 13:09hrs and insisting to eat it all, a reasonable person would settle fir a snack or even some crisps if you are that hungry. The petitioners lawyers were the embarrassment in this petition and NOT the judges. We must all sympathise with the Concourt judges for the embarrassing predicament they were put in leading to this stuipit and time wasting debate. The judges are innocent and we should all rally behind them and NOT villifying them. In my opinion it is the lawyers of HH as officers of the court who should be impeached or disciplined by LAZ for bringing the Concourt into disrepute by their incompetence. See how they tried to cover up their incompetence by…
Contd…
In my opinion judges it is the lawyers of HH as officers of the court who should be impeached or disciplined by LAZ for bringing the Concourt into disrepute by their incompetence and attempting to mislead the court on partisan lines. See how they tried to cover up their incompetence by even debating a straight issue of the 14 days time limit and its interpretation, really Jack Mwiimbu and company?
But if the freak from Cornell university really wants a culprit to impeach, the only qualifying candidate is Hilda Chibomba for passing a dissenting opinion on a really straight forward issue and for failing as Court president to guide the other judges that time was up at 23:59 hrs that Friday and for allowing HH to address the court and then trying to pander to his emotions by…
Contd..
But if the freak from Cornell university really wants a culprit to impeach, the only qualifying candidate is Hilda Chibomba for passing a dissenting opinion on a really straight forward issue and for failing as Court president to guide the other judges that time was up at 23:59 hrs that Friday and for allowing HH to address the court and then trying to pander to his emotions by trying to extend the inelastic 14 days which even the Kenyan constitution deems to be enough to hear and determine a properly prepared petition. Hilda’s job is guided by the constitution and NOT underfive emotions, especially that we all know that as adults it is our responsibility to control and soothe our childrens’ emotions.
We the majority are behind you on this.
Good analysis
Professor Mbulo’s article is thorough, insightful, and so convincing that it demolishes all legal arguments. However, as Danny Kalale wrote, political inclination is making people see or choose not to see truth. The professor has referred us to the Commonwealth Bangalore Principles on Judicial Conduct; here is an extract on Judicial independence from it:
• A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.
• A judge shall be independent in relation to society in general and in relation to the particular
parties to a…
First of all let’s not be tribal about this because the more u call others tribal the more u sound tribal urself.
The issue at hand here is that the each part is just supporting the action of the judges that favours them, if the concourt extended the hearing period period the stipulated 14 days, is this not also going against the Constitution? So then why is it that pipo are just talking about the Monday 5th action of the judges and not the Friday night one? Also if u say the 3 judges r corrupt, then what makes u so sure that the other 2 judges were not paid by HH to extend the hearing period?? These r some of the many questions the UPND folk are overlooking. To UPND anything that weighs in their Favour is lawful and all that goes against them is unlawful. Wise up n let’s inaugurate…
Fake Tonga professor. With Tongas everything is about their tribesman. Your HH will never rule Zambia.
The problem we have here is intellectuals are acting partisan and are therefore not helping us to understand the law as it applies to this case. Like Prof Hansungule, your undergraduate student, you are not writing to analyse anything you are writing to support one side. Pls attempt to submit this piece for peer review for a professional journal and then read the reviews. Its sad that people call a professor’s analysis RANTINGS because he chooses to write emotionally rather than rationally. words like rascality, subversion, and many more you have used are emotional laden and you know they have no place in an intellectual treatise. And unfortunately they point to where you are actually leaning. Like I said to Hansungule pls provide us with authority for your assertions like precedents or…
Mr Ndulo, you and your u der five pupil have missed the point. this whole debate is not about interpreting clause 101, 102, 103 as read with the bill of rights. its about a decision to curtail proceedings under court at the expiary of the 14 day window. the essence here is why did the people who were debating this constitution in 2005/2006 come up with a 14 day period for hearing a petition? it was aimed at doing away with the long period, 4 years to be exact, mazoka’s petition took. the participants in this constitutional conference at the time included 26 upnd mps, godfrey miyanda, ngos and several prominent people. 48 pf mps boyvotted the proceedings. thre is nothing sinister, the three judges made a landmark ruling on the 14 day window as provided for in the law to set a precedent…
….. or case law on the 14 days. Is it the completion time or the starting time? Should it be counted without weekends and holidays or just consecutively? If there is no precedent or case law on this then we must appreciate how limited the direction was for the seemingly youthful and inexperienced (as COncourt) judges. Its also important to carefully weigh our sources of information on the basis of which we analyse this case. Which judge has spoken out to narrate exactly what happened behind closed doors in the chambers? what I read was: a full bench sat, heard the case, there were exchanges with Mushipe, the last lawyers walk out, HH and GBM move in to save the case and address the court, the judge President makes a ruling to extend period, when they go into chambers a discussion of the…
……….to set as a precedent for future petitions. ecl did not participate. neither did the pf government put this law in place. ecl merely affirmed the law and appointed the judges. the people who made the law were the 26 upnd mps, miyanda and all who were part of the gathering at the time. what they did not anticipate was that it would haunt them in the future like its doing now. at that time they thought the executive was hiding behind the delays to conclude the petition, now you and under five think judges have ben bought when they use it as it should used, to curtail proceedings that are time barred. the plain truth is the clause is there in the law, the court has no jurisdiction to hear a time barred petition, the responded lawyers were legally correct to stay away and send the…
@52 Chile: Don’t lie; I was NOT one of those who accepted the rubbish you call Amended Constitution. I petitioned Parliament BEFORE they passed it but got no response; Minister Simbyakula, PF, presented it. I then petitioned President Lungu,PF, warning him NOT TO ASSENT TO THE BILLS WITH HIS EYES CLOSED (LT 23 Dec 15) and advised him that he was NOT obliged to assent if he had other views, but he ASSENTED ALL THE SAME WITH NO CHANGES OR AMENDMENTS BY HIM. His PF signature completed the enactment – IT IS HIS LEGACY! We went to court to challenge NCC. Later I was to be evicted from Mulungushi by Prof Mwanalushi for challenging some unpatriotic provisions. Don’t lie – your PF is part and parcel of the judicial scandal before us today///
“One thing a court of law cannot do is to overthrow a sitting government. That said, the doctrine of constitutionalism empowers the judiciary, as an arm of the state, to place restraints on the executive’s abuse of power and authority. That, the judiciary must understand, is its responsibility so as to ensure that citizens’ rights are protected and promoted. But it is not the role of the judiciary to evict a sitting government or the executive arm of the state from power. The judiciary, when moved, can only make pronouncements on the constitutionality of the status quo, or, where it is convinced that there has been a substantial miscarriage of justice, as opposed to a mere procedural defect, the judiciary can direct that the contending parties be restored to their original position to…
I think on the issue of the 14 days we should have given ourselves the benefit of the doubt by continuing with that petition because we are not absolutely sure if weekends are included in that 14 days as the constitution does not clearly state so.And please let’s stop this tribal hatred.Just because someone is Tonga all he says is rubbish when infact what he has written is very sensible.
..the repondents lawyers were legally correct to stay awa from court because they did not want to legitimize an illegal sitting should the court hav resumed sitting. thy sent the attorney general to convey the message to court/ the court was alive to the fact that it was putting itself into an embarrassing position if it ignored the law as it stood, the bill of rights you refer to are not exercised in a vacuum, these rights are dispensed in relation to othr laws. the law on the 14 day window is one such law that curtails freedom to be heard if the petitioner goes over board. you do not need a professorship at la to understand such simple arithmetic but common sense. we will never again go back to fours time for hearing a petition, bwana, just move on.
….. a discussion of the ruling ensues and finally a vote is taken and 3 vote to reverse decision. Then the three write the judgement for delivery on Monday. In this version the Judge President makes a ruling in front of litigants and full bench without consulting others. In this version the bench did not withdraw into the chambers to decided collectively; that is why when they go into chambers together after the ruling others raise an objection to the legality of that ruling and the discussion begins and eventually leads to a vote as is the norm.I might be wrong but I find this version more plausible than the one which says the full bench decided and then the Judge President announced the ruling and then over the weekend three have a change of opinion and decide to reopen the discussion…
How could the Judge president allow a unanimous decision delivered by herself on behalf of the bench to be reopened for discussion. If ever the vote would have actually been taken in the first consultation if it had taken place and therefore everyone would have known what was to be told to the litigants. If it is true that they unanimously agreed and others changed it is totally unacceptable. Yes I know individual judges rulings bind the whole court but its the illusion being made in the statements like “a ruling by the full bench” was reversed by three that I want clarified here. At what point were these three not part of that “full bench”decision for them to be allowed to U-turn and embarrass the court?. Pls help me understand this.
Baron Ndhlew, academic analysis of judicial decisions should inform the judicial reform process. Unfortunately,a Donald Trump thread runs through the whole rhetoric. As a fellow Munali student (during HJR’s time aka Kamwefu) I feel very let down. Standards baba!
@Sido so you mean if I haven’t read law the I cannot express an opinion? In Zambia we have churned thousands of graduates but none has even invented a toilet why? It’s because we use our qualifications as a too to oppress the less educated fellow zambians but we’re read to lick the buttocks of an illiterate white person!!!
True that!
I am convinced that Edgar used technicalities to silence, for a while, the petitioners.
He used the same judges he used to silence Miles Sampa, after the questionable consent judgment between Chama and Inonge in his favour.
But this one is different…..we’re in for the long haul. It may take 50 years or even 200 years, in Edgar’s lifetime or after. Yet justice shall be done.
This professor should ask his fellow professor chirwa….how he lamentably failed on the Zambian scene…
BC LUSAKA @26.1although I have never been to school I cannot classify the attacks on defenceless judges by your professor a “discourse “. I am happy he’s not in medicine because he could kill all his patients. You cannot take this nonsense into a class room because it’s laced with tribal and partisan poison.
Bottom line is HH & Gbm lost period. All these professors & doctors of fimo fimo…if all you supporters of upnd claim that PF has thugs, ifikopo, dunder heads etc, how then as intelligent as you are you were beaten hands down??…..if HH is clever how come he has lost 5times. Some of you upnd keep trashing ECL but when all that you are calling him returns back to you Remember it on your ailing beds because you will be reaping what you have sown….Tuesday dununa must play at max..!!!
These two Bali munkongole bad and the owners of the money are at their door steps
I cant continue listening to this nothing but a piece of SH IT from this tribal ist son of the pi g called prof DUNUNA NDULO. If this thing cant respect the constitution ,what can he respect? 14 days is a requirement by constitution in which one should petition, if you fail to do that within that period then it is game over. So if you want go and hung your self period. Come Tuesday, we are doing CHIKONKO MWIKATE and DUNUNAAAAAAAAAAAAAAAAAAAAAA.
THANK GOD JUDGES DO NOT TAKE NOTE OF STUPID POSTINGS ON SOCIAL MEDIA. NEITHER ARE ELECTIONS CONDUCTED ON SOCIAL MEDIA. SO HANSUNGULE FIMOFIMO, YOU ARE WASTING PRECIOUS SPACE HERE WITH YOUR RANTINGS AND TANTRUMS, NO JUDGE WILL TAKE NOTE. I ADVISE YOU TO SCHOOL YOUR UNDER FIVE PUPIL. IF YOU HAVE A PRACTISING LICENCE (WHIC I DOUBT) THERE IS A MATTER FOR YOU. NEVRS MUMBA THE STUPID PASTER NEEDS A LAWYER TO SORT OUT HIS PROBLEMS IN TH CELLS.
From the abundance of the heart so the mouth speaks. Prof. today marks 1 month & 1 day from the date we voted & inauguration of President hasn’t taken place. Do you think this is normal? What if we didn’t have the 14 day limit? Could we ever have an inauguration? Do you now see how the drafters of constitution & the 3 judges are smarter than you? 1st the 3 judges have the law to stand on while you’ve none. 2nd they have national interests rather than sectorial interests to protect. It looks like you’re losing your national relevance prof.
Whence went sanity? From whence this blaze of an incurable strain of lunacy???
In flames is Zambian democracy – a near 60 years of effort that came to us at a speed of a tortoise, riddled with arthritis, all gone in the twinkling of an eye! Must we not mourn? Should we not cry?
Okay listen up y’all: There is no ideal constitution as long as it was not made for an individual or a group of people.
===============
It is quite amazing that the newly amended constitution has spoken and some how given us what it understands according to what it received as input from the Zambians. It is also plain to figure out here that being a lawyer, lecturer of law, professor or holding a political position does not entail understanding the constitution fully. You have to be a “constitutionist” to have a clue of what’s up otherwise from where I stand, the 3 judges and the defendant lawyers nailed it. You have to understand GIGO for you to be in line with our current constitution. The precedence has been set for future ruling else get down for another daunting task of…
Agreed. If a Presidential Petitioner puts Gabage In before the Judges, they shall get Garbage Out for a ruling! A find conclusion. It’s what it boils down to. In future ALL budding Presidential candidates must show respect to the requirements/standards set by this case. If you are planning to petition, get your act together. All in all everything has worked for good. The constitution has been proven to deal effectively with vexatious losers in a decent time to prevent years of conflict. In an African country lengthy legal conflicts end up as civil conflict if the people do not uphold their constitution.
… constitutional amendment, maybe then you will realise that it is just as good as it gets. Stop being academic.
Ba Miyanda, the constitution or the law has no human face. It has no emotions. It’s all in your head and after all is said and done, it all boils down to which lawyer outsmarts the other. Some one go free on account that the witness was drunk or simply a hooker. Get over it and fast.
@69 and 69.2 Thorn in the Flesh: you are wrong. I declare that this so-called Amended Constitution has a human face – that of the one who signed it with his eyes closed in spite of him being advised to keep his eyes open!
I HAVE NEVER COME ACROSS A PROFESSOR SO BITTER THAN THIS ONE: HE IS A MAD PROFESSOR.
==========================
How can a normal professor of the law compare our constitution and the interpretation thereof to those of other countries. Well Prof. our judges nailed it. Our 14days must cater for everything hearing and determination, it is now precedence. You chaps misled your client HH. You sound so bitter to be classified as HH’s legal goon, a legal nonentity.
Bo Miyanda, you’re being unreasonable here. The Law has no feelings, it is not emotional and it does not reflect the face of the President but the wishes of the masses. How we want to be led. Thus, no human face whatsoever. For now, the constitution has been interpreted as per status quo.
The only thing that we had thought we had, has slipped though our fingers in broad daylight. Where now do we start from, to trace its whereabouts? To his credit, RB, when confronted with the opportunity to rig the election he had lost against the late Michael Sata, had the moral fiber to listen to advice. He restrained his own ego. He let go his hold on power, which he would have held on to illegitimately. That did expose him and his family to quite a bit of roughing, for crimes they were perceived to have committed while he was at the helm of power. That, notwithstanding, the world took cognizance of his moral stature, not for committing those crimes, but for refusing to double on them, by insisting to remain in power; something he could have done with a deal of ease, had he allowed…
Continued:
………………………had he allowed himself to succumb to the urge of moral decay.
HOW CAN YOU BE HEARD WHEN YOU HAVE CHOSEN NOT TO SPEAK?
SPEAK , YES SPEAK.
BUT YOU MUST SPEAK WITHIN THE 14 DAYS.
OR COULD IT BE THAT THE PETITIONERS LAWYERS REALIZED THAT THERE WAS NO EVIDENCE, SO THEY CHOSE TO GO ROUND IN CIRCLES WITH PRELIMINARY ISSUES.
PEOPLE, WAKE UP AND SMELL THE COFFEE: IT’S OVER, GET OVER IT.
===================
Need for speed: Tuesday njikata!
Right now we are in overdrive, destination LSK and Hero’s Stadium. We shall live to analyse the petition and which lawyer did what another day for there time for everything. Now be of cheerful hearts as the President takes oath for the second time.
However long it takes, perhaps even 30 years, anyone who breached Article 104(3) will face Lady Justice.
This one is not and till justice delivered Nuremberg style…it will live on and on.
It’s a vow. As long as the earth remains.
Fun how the same clique of PF sympathisers reduce their arguments to Tonga tribal and bitterness instead of providing articulate arguments backed by facts or articulated opinions. It’s the same people working overtime to insult and demean anyone who dares questioning the legitimacy of Lungu and the suspicious behaviour of the ConCourt judges.
They keep talking about the 14 days in the constitution but the same constitution also provides for the fundamental right to be heard and accorded a fair trial. I think the Court should have allowed the evidence to be heard and perhaps dismiss it in the end on 14 days jurisdiction. As things are this case is still hanging in the air.
And another Tonga by the name of miyanda is busy covering up for his Tonga cohort. What’s wrong with these 1diots. Don’t you feel ashamed to be supporting each in public. What’s wrong with this tribe? For the sake of shame try for once not to support your tribe and see if you will die.
I have been out of circulation for quite some time due to the fatigue I feel whenever I put up a reasoned argument only to be battered by emotional and uninformed arguments full of invectives and driven by bigotry, tribalism and other base and primodial instincts. Even reading all the comments on the Ndulo treatise has drained me emotionally. However I am back and shall start debating from now onwards never mind how anybody including myself feel because the motion is getting so big, it could throw us in civil conflict if wisdom does not prevail. But for you @HH Techilema, General Miyanda is not Tonga. He is from Petauke for goodness’s sake. Argue on merit not tribe, please!
Professor Ndulo should never lecture Zambians if he is one of the descendants of those who had persecuted bembas and easterners between 2001 – 2008. Keep your lecture to yourself. We are already very critical against ourselves. Don’t add insult to injury. Don’t insult our intelligence. And President Lungu as you select your cabinet and propose a name the speaker on Wednesday, please avoid pacifying and trying to please tribalistic cliques. These people don’t mean well. Matibini was quiet as his name was been floated by the cartel to take over the presidency. Can this man be trusted.
Aaah, finally @Captain Sankara, the cat is now out of the bag. The 2001 to 2008 ‘persecution’ is about Mwanawasa’s anti corruption war which you saw as persecution of your Chiluba and his tandem of thieves right? You never forgave the gallant Mwanawasa for his war on your kleptocratic tendencies no doubt and now fear another Mwanawasa, coming from the ‘dreaded side’ may just nail all of you for your banditry and lack of respect for public resources and outright grand larceny. After the early years of Kaunda, Mwanawasa was the fresh air God gave us for a fleeting moment and took away so quickly just to show you what a serious attempt at good governance looks like. Gloat now you thieves but your day of reckoning will come, mark my words!.
Ndulo, the petitioners were accorded chance as per the demands of the constitution, but these petitioners chose not to be heard by avoiding to talk about their own petition.
Instead they chose and preferred to talk about other matters as they pleased until the time allocared to the petition by the constitution expired?
So now you, Prof. Ndulo, did you want the judges to hear themselves or to hear the petitioners?
In fact the judges heard the petitioners as they chose to present what they preferred, i.e. the preliminaries and the judges made rulings on each of them.
As for the main petition the petitioners chose to avoid it until time expired, you wanted judges to force the petitioners to deal with the petition.
This is why I say, Mr alleged professor you don’t understand.
Heard of “Death by misadventure”! The professor is Tonga and has shot himself! The ConCourt did not hear the petition and they could not make the much sort for ruling under 103 (3) and so the Speaker could not act!
Few of us on this blog, are willing and prepared to embrace the stinging reality that president Lungu is intoxicated, not with kachasu, but with power. We are seeing the making of yet another dictator in Zambia. To this ugly reality, however, we would rather turn a blind eye and move on. But move on to where????
We will soon wake-up to an ugly realization, albeit too late, that we, and not anybody else, have been the architects of our own fate.
We will soon be joining our neighbors, the Zimbabweans, the Angolans and the Ugandans in a song we were never taught to sing, one we never rehearsed. When that happens, it will not be in error, not an accident. It will not be because our prayers never got answered. It will actually be an answer to our passionate prayer. We are eager to reverse our own fortunes.
There some cadres on the street who know very well that when you are given chance to present your case, and choose not to do so until time passes you cannot claim that your right to speak.
So, let professor Ndulo not share this with those street cadres, because if they see this article they will think we go to school to do nothing.
Let’s all put aside all legal technicalities and jargons as it’s well documented how that the fallibility of the law has caused untold miseries by wrongly convicting innocent people while protecting the real guilty ones. Using common sense approach of looking at the overall performance of the upnf vs pf at all levels including the referendum where upnd campaigned for ‘No’ and pf ‘Yes’ but excluding the presidential level. In other words, if upnd performed better overall than pf at parliamentary, mayoral, counselor, and referendum levels; then they have a very sold case that the election was stolen from them because a different result at presidential level would just be illogical. This is what convinces me that Edgar won pants down and that’s up to now all arguments in favour of…
Exactly my point. All those concentrating on the petition and proceedings in the Constitution Court like Ndulo and Miyanda seem to be under the impression that ECL diidn’t win these elections fairly. To them, these elections must be settled in the Constitution Court and, from the way they are arguing, the verdict of the court must be in favour of HH.
This is what convinces me that Edgar won pants down and that’s up to now all arguments in favour of upnd are mere suppositions and academic arguments. No wonder up to this moment, no one is producing any tangible evidence that HH won!
Though the professor has highlited important legal precedents and points i still can see alot of partiality by concluding that the election was rigged when we have not seen any evidence. I off course would have loved the due process concluded after both parties have been heard.
This so called professor’s write up is disgusting! He too has failed (like HH or any human being too) to understand the Clauses he has referred to (103 to 104). He has wasted a lot of time quoting other countries laws which does not apply to Zambia. This is how HH wasted time on preliminaries! Zambias Laws are purely for Zambians staying in Zambia! You “coup plotter”! Don’t take us in circles and jargon to confuse us on Articles 103 t0 104 which laws HH’s members of Parliament assented to or consented to. I wouldn’t be surprised if you are a Dundumwezi!
The biasness is evident in the way this professor comments. It is not easy not to assume that these guys( Muna and his Pretoria counterpart) have had some promise of jobs had their preferred candidate won the presidential elections. Some would think that they do not need positions in Zambia, ne, it is more rewarding and fulfilling to have a good job in your own country. It is a shame on his(Muna) part to suggest that the judges who did not vote in favour of his preferred candidate should be investigated. The American system where this guy (Muna Ndulo) works, the Jury votes to determine the verdict and the majority’s decision holds. The Concourt did the same, so what is this guy talking about. His preferred candidate (HH) was given chance to be heard but instead he started by producing…
… social media evidence, his colleague, a second class citizen in America should have advised him that gossip in social media is not admissible. Zambia is not about HH, we cannot spend the whole year hearing nothing and have the country held to ransom by one arrogant man who wants to go to state house.
Professor Ndulo’ article has got a number of flaws. It will be good for his students to this.
He is dealing with a practicle event but he deals with it from a theoretic point of view.
Ndulo makes an assumption that the petioners were not accorded the right to be heard, turning the article into a theoretical academic game.
Based on this wrong assumption he begins to draw his theoretical conclusions, which of course get out of context.
Ndulo, get back to the practicle issue. The event is not an assumed one; it happened.
The petitioners were given the full stipulated timeframe of half a month (14 days) as stipulated by the constitution.
The petitioners chose not to look at the petition but began to look for other things to serve as delaying tactics while the try to…
The petitioners chose not to look at the petition but began to look for other things to serve as delaying tactics while the try to ascertain whether they have evidence or not.
They did this until the constitutional time was exhausted according to their plan, and the lawyers decided to walk out saying the had no time to effectively defend their client.
You must know that all these preliminary issues were being crafted and raised by the petitioners, to the extent that respondents even began to object to any further raising of preliminaries citing shortage of remaining time.
The idea was to make a public outcry afterwards hoping that they would convince people to.believe them, but now people are shaper that that trick.
So they managed to convince only majority of their loyal…
So they managed to convince only majority of their loyal carders, and people like Ndulo, if at all he is not one of their carders.
Conclusion: UPND was accorded full chance to be heard but they did not want to be heard in preference for another plan, which either failed, backfired, or it is the one we are hearing of saying we have not been heard.
Spot on professor, what constitution would be a twist of justice!!!. God hates injustice and lying lips. God hates a cruel leader, watch, he who sees and avenges accordingly is still on the thrown. Wish there are many like the professor who can stand up against injustice and speak for the underprivileged.
Prof Muna Ndulo’s analysis is spot on. Concourt’s dismissal of the UPND Petetion based on Time technicalities is extremely flawed. The Friday Concourt majority decision to have the Petetion Hearing from the 5th to 8th Sept remains valid and therefore the Petetion is alive and active until a proper,fair and transparent Hearing is held. Lungu must realise without disposing this Petetion properly his illegal govt will not be recognised internationally and Zambia will become a pariah state like Zimbabwe. Furthermore Lungu’s illegitimate regime will be sanctioned and access to concessionary finance from multi-lateral institutions will dry up and the Zambian economy will collapse with dire consequences. The writing is on the Wall!!
And this is where the world comes in.
When a despotic regime like that of Mugabe takes over state power, it doesn’t need to be helped.
Legitimacy is important. We ask those that PF depend on to borrow money from or get aid to take the Constitution of Zambia to their competent and incorruptible courts to rule on Article 104(3) and handling of petition under Article 103. Reward ECL per your court’s ruling.
PEOPLE OF NORTHERN RHODESIA GO AHEAD WITH YOUR LUNGU ON TUESDAY BUT THE OUTCOME WILL BE HEAVY TO RULE BECAUSE IF THE LAW SUITS PF, WE WILL GO OUR OWN WAY OF NORTHWESTERN PERIOD.
Whip them Jah for commiting such an henious crimes, whip them for intentionally killing our little growing democracy. Jah as long as they walking under the Sun, whip them:………Jah!
For me, as stated by someone else, Professor Ndulo’s otherwise intelligent sounding article is left prostate by his claim that the election was a sham and massively rigged. How would he know?
Prof Ndulo has raised very valid points. All Zambians with a genuine interest in the country should appreciate that there are questions to be raised about the conduct of the law profession in this respect. My own concerns relate to the lack of integrity demonstrated by all lawyers on all sides, including the bench. Where does it leave our law schools and the LAZ? It makes agree with late MCS that there’s need for a complete overhaul of the law profession in Zambia because what we have are vultures with little morality.
Look,
Who said that if you have an academic paper then you have integrity?
The spirit of integrity has deeply been slaughtered in Ndulo’s article – anyone can see that. Is a question whether one admits or pretends.
Being professor has never created integrity in an individual.
We have seen people in this world who have used their academically acquired knowledge to steal.
Who said doing wrong is always a result of lack of education.
Often times education is responsible for most of the high level crimes committed in this world.
As long as the heir is no integrity, your doctorate or professorship needs much to be desired.
What gbm and Nevers don’t know is that the Upnd had parallel campaign one based on tribal indoctrination and another one open to these two. I got a shock when two Tonga children aged not more than 12 years told me today that for them it’s HH anybody else is an enemy. If you doubt me just go to any junior school in Kitwe and carry out a check.The situation is bad.
Bembas be careful. You’re making yourselves hated more than any other group of people. Your tribal remarks are too obvious and this is hurting others. You will forever be chola boys for the wise men from the east. Mark my words; these Tongas, Lozis and Luvales you’re insulting can wake up to vote for an Eastener not Bemba in future. You will cry to see Felix Mutati loose to Tekele Banda under UPND. Wait and see. Sole maningi!
@ZAMBIAN FAMILY, As a BEMBA I don’t need MUTATI to be my president just because he is a bemba all what I need is a GOOD president. TRIBE IS NOT AN ISSUE with most of us. I VOTED For LEVY MWANAWASA(NOT BEMBA) instead of Micheal Sata at that time. I voted for Lungu January 2015 instead of Nevers & other Bemba presidential candidates. By the way I was planning not to vote for the Late President Micheal Sata next election unfortunately he passed on (May HSRIP) for becoming Meembe’s friend at state house.
Ndulo and Hamusungule: sorry for missing out on the promised cabinet positions in kachema regime. Try in 2021!
As for you Ndulo, beware Donald Trump is right now including your name on the list of undesirables for deportation to Africa.
It’s quiet annoying when people fail to reason and resort to insults! Professor has provided educative material. A reaction must indicate a reasonable warrant to the argument. Not ignorance and zombie response. Please LT, can you create a different forum of discussion for reasonable people.
I have great respect for Professor Ndulo but I find that his arguments here are political rather than legal. He cites the Kenya constitution which has similar provisions as the Zambian but without distinguishing the two he proceeds to find otherwise. Secondly he doesn’t address the obvious, i.e why a group of top notch lawyers fully aware of the provision would proceed on unhelpful technicality when they could have delved straight into the case and requested for extention of time at a more appropriate time. I have no doubt that the provision is clear. One also has to ask the question whether it was the intention of the constitution to leave such a petition open ended as would obviously have been the case given the frivolous applications. Ending the case in similar fashion even 6 months…
Just one sentence and you notice the author is fuming.
Someone here allowed Chiluba to Concort a consititution that barred Dr KAUNDA from standing as president. Someone here reacted when Chiluba tried to change the consititution to allow a third term. Someone here ended up forming his own party after Chiluba opted for an “outsider “to take over the presidency. Now someone here wants to lecture us consititution.
HH won it PANTS DOWN. This was a no-pants contest, but Lungu breached the rules by concealing his lot with leaves picked from some trees in Mufuwe, and a g-string provided by Malawi sangomas. How could Lungu win with only 85 MPs while my HH boasts of 55? How could HH lose when GBM promised to deliver Kasama central through his daughter … pants down? We should demand that Lungu takes down his pants because it was a pants down contest. We are sure he can’t measure more than GBM and HH put together. Honestly, a poor chakolwa can’t rule over rich and fat guys, those are the rules of pants down contests, as said by Profs Hansungule and Ndulo. Btw, someone get me HH’s pants.
ZAMBIA….THE NEW ZIMBABWE.The next 5 years will be a very interesting period for Zambia.The economy will continue to decline,cost of living/inflation skyrocketing,more job loses,more load shedding,increased poverty while the Concourt judges,ECL and his minions become wealthier.
And then you start crying “No..ECL is not delivering on his promises”.My answer to you will be “Screw You with your Ifinintu Ni Lungu and Dununa Reverse”.FYA KUYIFWAILA…Just suffer silently and don’t disturb us.
Continue misleading yourself and whoever awarded you the professorship is regretting now. What a partisan view. Education does not take away the bush from most people indeed. These f00ls did not present any evidence in 14 days but just asking for tapes from ZNBC and power handover. Did the non handover of power or the tapes from ZNBC stop them from submitting the evidence they claimed to have. At least Mushipe submitted her evidence of someone voting 6 times in her menopause tantrum
Well done Mr Professor for a very well articulated article. You made me a proud Zambian today! One day justice will prevail. This article has been read the world over. All desenting voices of reason no matter how inaudible who love peace and stand by the rule of law are against the decision of the concourt. It’s the worst form of imperialist behavour at the hands of greedy African leaders. It was the same with Kaunda’s Unip. But one day it surely came to pass. It was the same with Chiluba’s Third Term aspirations but it tool came to pass not on the oppressor’s favour but in the desenting voices favour.
Only problem is Zambians have a tendency of waking up when it’s too late.
Wake up from slumber mother Zambia before another 27 years rule or mis-rule by our Brother Leader.
ba Prof Ndulo,whats your main interest about Zambia??From the days of Chiluba you have been against Zambia to the point of asking the international community to do sunctions agains Zambia,also suppoting Watch dog and now HH.i KNOW YOU ARE TOO WEALTHY TO BE IN UPND CABINET SO APA PURELY YOU HAVE JUST BEEN 100% A TRIBALIST.PLS YOU ARE A ZAMBIAN WHOM SOME OF US ARE PROUD OF GATHER YOUR FACTS PLS TRY TO BE LIBERAL.YOU CAN DO BETTER THAN WHAT YOU HAVE BEEN DOING.LET YOU TRIBE BE ZAMBIAN PLEASE.
Time to play chikonko mwikate and Dununa. Well done people of CB, LSK, Northern, Muchinga, Eastern, Luapula and Central for rejecting Kalusa once again. Elections are won in the ballot box.!
Mushimbei wrote: Lozis, Tongas, luvales, lundas, Kaondes, what is going on is all part of a well orchestrated plan to instal bemba dominance in Zambia and render other tribes as second class citizens.
Dear Mushimbei did you know that the President of PF is not Bemba and the President of UPND is also not Bemba. Did you also know that Bo INonge is not Bemba either? So why are you bringing in the Bemba tribe in a very negative way. Walipena limbi.
Please upnd take the loss prayerfully so that the healing of the heart comes fast in the name of Jesus Christ.
When I was young and my thoughts were innocent, I could have believed the professor. But now that I am old and not innocent anymore, I have my doubts. The Professor has forgotten one thing or should I say has elected not to see the stark naked truth. For the Concourt to have resolved to sit beyond Friday 23:59 was an illegality in the first place. That illegality was identified. If you realize a wrong and you consciously refuse to correct it (as the good old professor) and proceed to do a deed advanced through an error (such as sitting on Monday) the more efficiently you work, the more wrong you become. Professor, is this what you want sure?
Tribal fool.u and hansungule have owes been upnd cadres from the time of mwanawasa.economic refugees at yo old age.come back and be professor at unza if u have any substance in u.
I have practiced the law for half my life and i have NEVER read a single law report of any matter that either Prof Hansungule nor Prof Ndulo successfully argued.The two are pure academics with little or warped understanding of legal practise. Judge Munalula gave an academic reason but not a legally teneable one for her actions as for Chibomba? Well she is a Party Cardes spouse
ndulo, self styled professor, if I was the head of your university, I would have fired you for bringing the institution into disrepute. you, hansunul, neo simutanyi the fake astrologer with silly predictions and one fred mmembe are all pimps for under five. enjoy your five years in the wilderness. pf will certainly win in 2021, when under fiv stands again, not against edgar, but against another non bemba presidential candidate whom pf will float at that time. bear also in mind that with a 93 mps majority in parliament (85 +8 nominated) pf will tighten the screws on the constitutional court act), they have more than 2/3 working majority in the house to do whatever they want.
IT IS VERY BAD TO HAVE PEOPLE CALLED PROFESSORS LIKE MUNA NDULO PRESENTING SHEET LIKE THIS.