JK perfoming Dununa Reverse at a PF rally in Siavonga
JK perfoming Dununa Reverse at a PF rally in Siavonga

Many people have condemned the dununa reverse of the Constitutional Court (ConCourt) on HH’s petition. I sympathize with HH and the UPND, but at the heart of the ruling are the unchallengeable powers of the ConCourt as well as the illogical national Constitution. People are justified in condemning the ConCourt’s ruling—yet there is need to move beyond HH and UPND. It is not new to Zambian politics for losing candidates to claim that they are robbed of the election – President Sata did so twice, and so did HH last year.

Indeed, it is part of HH democratic rights to petition the ConCourt. Nonetheless, we need to acknowledge that short history of the ConCourt. It is for this reason that I am highly disappointed at the failure of analysts to re-examine the Constitutional basis of the ConCourt’s ruling. The first “dununa reverse” of the ConCourt happened on Friday September 2, 2016. This was after the ConCourt made its ruling in favor of the PF—forcing HH’s lawyers to walk out. After HH addressed to the bench, the ConCourt “dununa reversed” its own ruling—announcing the continuation of the hearing of the petition the following Monday. Yet people did not see this as unconstitutional or unheard of. Besides, the PF and Lungu would have equally contested this ‘dununa forward’ of the ConCourt. Could it be that the ConCourt realized the unconstitutional basis of its action, thus the U-turn on Monday?

We risk doing more harm to mother Zambia if we ignore the legal confusion within our Constitution

As a nation, need to admit that our current Constitution is packed with many illogical clauses—from the role of the Speaker to the petition to the ConCourt. Article 101 under which the HH petition was filed conflates the first election with the re-run—making it vague. Clause 101: 5 also allows the ConCourt to hear the petition “within fourteen days.” Is “hearing the case” the same as disposing of the petition; how are these days counted, and what happens when the case is not resolved within 14 days as was the case of HH. I suggest that the Constitution should give power to the ConCourt or the Supreme Court to extend the time of the hearing—thereby addressing this shortfall.

Also our Constitution has unfair clauses. Clause 101: 7, and 103: 4 state that the ConCourt’s decision “is final.” These clauses are further stamped by Article 128: (4) “A decision of the Constitutional Court is not appealable to the Supreme Court.” Thus due to the un-appealable clause, HH, GBM, the UPND and its allies can make as much noise as possible—but the case is constitutionally closed!

The claim that Lungu acted unconstitutionally by not handing power to the Speaker of the National Assembly is equally illogical. Indeed, article 82 presents the Speaker as an elected official, whose role remains active even after the dissolution of Parliament under article 72. But the Speaker has no power to “(a) make an appointment or (b) dissolve the National Assembly.” This clause is ridiculous— how can the Speaker dissolve that which does not exist? Again there is the need for the Constitution to clarify why the Speaker should outlive the life of the Parliament which elected him.

Further, the Speakership is a partisan office in itself. Currently, the outgoing Speaker is PF, thus he exists to protect the interests of the Party which sponsored him. In this case, handling over power to the Speaker is to the advantage of the Party with many MPs. Similarly, the appointment of judges to the ConCourt bench is in itself political. It is one thing to argue for the independence of the judiciary, but that independence is highly political—after all the appointment to the bench is at the President’s discretion.

Therefore, rather than being shortsighted, must explore how we can move forward and avoid similar problems in future. I understand the tribal and partisan emotions involved in this case, but the bigger picture needs addressing. We risk doing more harm to mother Zambia if we ignore the legal confusion within our Constitution. I submit that HH may feel unjustly treated by the ConCourt and rightly so, but he must also understand that he entered the muddled water of the unchallengeable powers of the ConCourt when he filed the petition—knowing too well that its ruling is final.

Finally, I disagree with the claim that Zambia is becoming a “failed State” as some scholars have argued. Neither do I agree with HH’s call to his voters to stop the inauguration of Mr. Lungu. Such calls ignore the fact that the election was not only very close but also ethnic based—creating conditions propitious to intra-ethnic violence. Leadership means sacrificing oneself for the greater good—I pray that HH and the UPND will take this opportunity to unite rather than divide the nation.

By Rev. Kapya Kaoma

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30 COMMENTS

  1. More of the same by a UPND Cadre trying to sound non-partisan. There is absolutely, nothing wrong with the constitution as it stands. There was no confusion. The constitution was observed albeit a small hiccup of deviating from the time is was scheduled to end. The way forward is to tighten up the judicial procedure from the time skeleton arguments are presented by potential petitioner. There must be Powerful interlocutory hearings that will gave one purpose; and that is to determine the merit upon which a challenge is brought. To inspect that there is adequate and transparent wrongdoing in election procedure or any criminal attempts. Maybe there is need for petitioners to be referred to a Complaints body that can examine the evidence before it hits the courts and that will act as…

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  2. Maybe there is need for petitioners to be referred to a Complaints body that can examine the evidence before it hits the courts and that will act as advisory to Judges as to whether to allow a petition. All in all, this drama has PROVEN the Constitution can successfully limit the length of time it takes to hear a petition from years to 14 days. It is clear that it has deterred HH. He has been exposed as treasonously attempting to prevent a Winning president take office. What’s lacking is the judicial response to vexatious losers who behave like HH&Lawyers all who have been Contemptuous to the Judiciary and all Gov’t instruments. There has been press releases denigrating the Judiciary and comments on the case with ‘evidence’ being displayed in Media to cause riots. There is need…

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    • It is clear that it has deterred HH. He has been exposed as treasonously attempting to prevent a Winning president take office. What’s lacking is the judicial response to vexatious losers who behave like HH&Lawyers all who have been Contemptuous to the Judiciary and all Gov’t instruments. There has been press releases denigrating the Judiciary and comments on the case with ‘evidence’ being displayed in Media to cause riots. There is need to show that the Judiciary can act to discipline and remove erring Legal teams some of whom are clearly Politically motivated. That’s the shortfall.

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    • Patriot Abroad what you are forgetting is that a precedent has been set by the “Time factor” and do not cry foul why your relative will be caught selling chamba back here in Zed and he will be given an unfair trial and judgement based on “Time”. In fact if I was judge I would ceremoniously refer to the precedent in most of cases till people like you realize that its not HH & GBM who have lost but the common man who will be treated unfairly by the system.

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    • @Taking Sense – how is being caught selling chamba unfair if tried in say 14 days??
      Don’t twist facts. The time frame is very clear for the serious otherwise don’t PETITION!!
      Even without the time frame Sata never petitioned and died more Intelligent than the 2 rich brothers.
      If Sata where to resurrect today, whom would he be laughing at??

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  3. You can only move foward on the pretext of morality. That is to say that any God fearing person shall allow justice to prevail despite the shortcoming of man made law.. In my view , it is like your child is defiled and the court does not hear your case due to faulty laws leaving the alleged accused walk freely without the facts being adjudicated……
    If truly the elections were marred with irregularities , then any humble person will admit the truth and accept to give way to correct man or a rerun.
    God knows the truth and the truth will triumph now or later…… Even so the kingdom of God is based on righteousness not wickedness

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    • @Robert

      The cleric urges HH to sacrifice for the unity of the nation. Why not Lungu, who in this case is believed by his opponents to be a no gooder with a track record of stealing using technicalities.

      In the beginning, in Law Practice, Lungu swindled clients money. He was disbarred. FACT. He is a thief. It is there in the record.
      Then he got bolder
      1. He used pangas to chase Miles Sampa etc from Mulungushi Rock of Authority. Used same tactics in previous campaign to beat, wound, mutilate and maim opponents.
      2. He then used Mulenga Mungeni to shut up Miles Sampa claim to PF presidency by a technical consent agreement between his henchmen (Inonge and Chama)
      3. He absolutely stole more than K10m in that year he was at State House and has no qualms to hide this fact…

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    • Iwe 4 with no name. Don’t mislead people . If your child is abused and the court allows you 14 days to give evidence, but you decide to play cat and mouse, you do so at your own peril. Hakulalusa Humuyayaya (HH) and his cowboy GBM sealed the fate of their petition from the word go.

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    • 3. He absolutely stole more than K10m in that year he was at State House and has no qualms to hide this fact claiming that He has a high paying job as though his pay is not gazette.
      4. Working with Mungeni and tandem, he once again shut off UPND from having merits of petition heard.

      This man is not worth respecting and like Chiluba, he will end up as a most despised rascal. Watch.

      How can a man claim to be a church goer and then swallow bottles of whisky, jameson etc. What kind of Christian is this? Hypocrite….drunkard. Since when did church become a resting place for hangover hit people?

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  4. Let us not condone evil…. if the election was full of evil, violence and hate, and we take side of evil and claim that the one chosen as leader has been ordained by GOD, we are misusing the name of GOD . we will surely pay the price…. God is not a respecter of person……. Watch the aftermath and to be forewarned is to be forearmed….. Lift up your eyes and seek your Salvation now …… Sin hardened the heart and taking sides has its implication . Never put your trust in man…….
    Never be deceived by some men’s look .God knows man better…..

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    • However long it takes, perhaps even 10, 20, 30, 50 years, the one who breached Article 104(3)and those who helped him will face Lady Justice.

      The wheels of justice turn slowly. They do turn. A crime has no expiry date and it cannot be legislated away. This crime will not go away, it has been done. Retribution follows.

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    • Ba Article 104(3) Prophecy – For your information, the one who breached Article 104(3) is HH, because he tried to mislead the nation into believing that this was the right Article to file the Petition. Yeah, retribution follows HH in this case.

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  5. HH has nothing to lose. It’s the majority poor who will face the blant side of the economy. These are the people who voted for him so that he can turn the tables of this economic malaise. So never ever refer to HH as the one who should move on. We the owners of votes stollen want justice as the case was not deposed off.

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    • 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…

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    • 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.

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    • Constitution of Zambia, (Amendment) Act, 2016
      PART VIII
      JUDICIARY
      Judicial Authority, System of Courts and Independence
      118. (1) The judicial authority of the Republic derives from the people of Zambia and shall be exercised in a just manner and such exercise shall promote accountability.
      (2) In exercising judicial authority, the courts shall be guided by the following principles:
      (a) justice shall be done to all, without discrimination;
      (b) justice shall not be delayed;
      (c) adequate compensation shall be awarded, where payable;
      (d) alternative forms of dispute resolution, including traditional
      dispute resolution mechanisms, shall be promoted,
      subject to clause (3);
      (e) justice shall be administered without undue regard to
      procedural technicalities; and
      (f) the values and…

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    • (f) the values and principles of this Constitution shall be
      protected and promoted.
      IS THIS THE SAME CONSTITUTION AS THESE CONCOURT JUDGES ARE USING???

      IT SAYS CLEARLY WITHOUT UNDUE REGARD TO PROCEDURAL TECHNICALITIES !!!

      DID THEY READ THAT PART??

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  6. The International Monetary Fund has ruled out any possibilities of entering into an economic and reform programme with Zambia until after the August 11 elections. IMF Director of the African Department Antoinette Sayeh told Journalists at the IMF Headquarters in Washington D.C on the sidelines of the Springs Meetings on Friday that the Fund does not see the full preparation of that program until the fourth quarter of 2016 which is after the elections in Zambia. The Zambian Government has approached the IMF for a bailout believed to be in the region of US$1 billion mainly for balance of payment support.
    President Edgar Lungu had hoped that the IMF programme would kick-in as early as April but his team of technocrats at the Ministry of Finance proposed that the tough austerity measures…

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  7. The problem i find with our UPND friends is that they are falling to reflect on their own actions but are busy blaming everyone except themselves.
    Its a great write up from the Rev. that should make UPND realise that if they are to change anything,its the constitution that provides a limited time frame which is not ‘reasonable’ as it.
    These are the issues we expect from their MPs and we expected even before the constitution was signed, judges being appointed by the president, this needed to have been changed for instance.
    Going forward in the new-look parliament, instead of walking out when the going gets tough, address issues and make laws that will stand the taste of time!

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    • PF and police are arresting UPND cadres, so how can you expect them to be reasonable. During campaigns for elections, anyone in UPND attire was bullied, beaten and some tear-gassed and some shot to death. How can a community live together after allt his? I do not like violence, hence when in Zambia, my family stays away from politics.

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  8. The International Monetary Fund has ruled out any possibilities of entering into an economic and reform programme with Zambia until after the August 11 elections. The Zambian Government has approached the IMF for a bailout believed to be in the region of US$1 billion mainly for balance of payment support. President Edgar Lungu had hoped that the IMF programme would kick-in as early as April but his team of technocrats at the Ministry of Finance proposed that the tough austerity measures that come in with the programme could be implemented after the elections. “We certainly have our own concerns about borrowing and too much borrowing. Zambia of course borrowed on the issued sovereign bonds at high rates.” “The proceeds of those bonds were used to finance some infrastructure, but also to…

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  9. Afternoon Mr Rev. Be kindly informed that it is not HH and the UPND who want to divide the nation-Zambia. The whole issue started from the PF stealing votes from the UPND, ECZ siding with the PF, the Concout throwing out the UPND valuable claims and the Dununa reverse by the High Court. Man of God let God be true and let men be liars. You know the truth very well but you still side with the wrong company why papa? We do not need Prophet TB Joshua to tell us who won in the 11th AUG. 2016 Zambian Presidential Election between ECL and HH. We were watching from Beta Tv and saw the twistings and turns from the ECZ in releasing results. HH and the UPND carried the day Papa no doubt about it. Go ahead and dance in tomorrow”s inaugration but know that the rightful winners are the majority…

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  10. PF must be a great thief its stole votes in 6 out of 9 provinces UPND only stole 3 out of 9! that’s really something to go by. Then its lawyers couldn’t count or ask for orders for directions on time factor? I guess it was the PF lawyers who stole the files of the UPND lawyers so that they failed to file their petition early and then the PF lawyers went further and ensured the UPND lawyers couldn’t effect proper service. Indeed the UPND lawyers then went from corridor to corridor seeking that which was unattainable as advised by the PF lawyers?. The only real loser is HH because his followers now look at him strangely…and just as they cannot count days neither can they count the majority…they will be no dancing tomorrow its will be a day for prayers for the property destroyed and…

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  11. lives lost, we shall also proceed to petition the ICC to hold HH accountable for the crimes against humanity in maala

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  12. This makes more sense than the rubbish from profs Ndulo and Hansungule. It exposes deficiencies which am sure were purposely created by Levy.

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  13. I feel bad for HH. All I can say is if hh really want to be president let him accept a ministerial position in pf govt. Let him prove that he can improve the economy and come 2021 we will sponsor him as pf presidential candidate. That’s how you play politics. Not always to be a tribalism wanting to please your cohorts. Leave Mumba gbm Scott sata Sampa to take care of Upnd.

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