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