Friday, March 29, 2024

ARE THERE GROUNDS FOR APPEALING A CONSTITUTIONAL COURT RULING?

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Dr Scott leaving court today
Dr Scott leaving court today

BY EMMANUEL NYIRENDA

It is considered necessary that a democratic constitution must not only provide for democratic election of those to govern a country but it must also provide for the right to petition their election when there is evidence that the persons declared as the winners were not validly elected or the constitution or other laws were not adhered to.

This is what Article 101 (4) of the Zambian constitution is all about and United Party for National Development (UPND) relied upon it in petitioning the Constitutional Court to nullify the election of President Edgar Lungu, the Patriotic Front (PF) candidate who was declared president-elect, beating the UPND candidate, Hikainde Hichilema, in the last presidential elections. Hichilema charged that Lungu did not get the required 50 percent votes and that certain electoral provisions had been breached.

Clause (5) of the article provides that “The Constitutional Court shall hear the election petition filed in accordance with Clause (4) within fourteen days of the filing of the petition”. Clause (4) says a person may petition the court within seven days based on the grounds that the person was not validly elected or certain provisions of the constitution or laws governing elections had not been observed.

Upon hearing the petition the court is expected to (a) declare the election of the presidential candidate valid, or (b) nullify the election of the presidential candidate or (c) disqualify the presidential candidate from being a candidate in the second ballot.

However, upon examination of the grounds of petition, the Constitutional Court found no basis for nullifying the election of Lungu as declared by the Election Commission of Zambia.. The court refused to extend the hearing of its petition beyond the 14 days in order to receive additional evidence and witnesses from petitioners as this would have been in breach of the constitution.

Dissatisfied with this ruling the petitioners sought a court order to prevent the inauguration of Lungu as president until the High Court had heard its complaint about the conduct of the Constitutional Court judges.

Earlier there was an attempt to prevent Lungu from continuing to perform the functions of president as there was a petition against his election. They cited Article 104 (3) which 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 …”

Perhaps this was the basis of the speculations, denied by State House, that the Speaker had been asked to assume executive functions following the filing of the petition but before it has been heard and determined.

Further, the petitioners wondered how a president-elect could be inaugurated into office without an explicit declaration referred to under Article 101 (6)(a) that the candidate was validly elected.

Four main issues come to the fore: That Hichilema and his running mate, Godfrey Mwamba were within their rights under Article 101; that the Constitutional Court was bound by the constitution to make its decision within fourteen days of the petition being filled according to Article 101 (4); that its decisions, according to Articles 101 (7) and 103 (4), are final and that in accordance with Article 101 (6)(a) “The Constitutional Court may after hearing the petition declare the election of the presidential candidate valid”

Obviously, lawyers for the petitioners had their own interpretation of the constitutional provisions as did those of the respondents. In such situations, unless there is provision for appeal, the practice has always been to go by the court ruling, however loathsome.

There is no dispute about the constitutional right of the petitioners in presidential election. However, they have to provide all the evidence within the 14 day period within which the court must make a ruling.

What appears unclear is whether the election of a presidential candidate petitioned against is automatically valid when the petition fails or even when there are disputes about the court process.

The provisions of Articles 101 (6) and 103 (3) when read together with Clause (3) of Article 104 seem to be the cause for different interpretations. Article 104 (3) says, “where an election petition is filed against the incumbent under Article 103 (1) and 103 (3) (b), the Speaker shall perform the executive functions…”
The question is: Does the Speaker assume executive functions because there is a petition against the incumbent president’s election or only when the court has nullified his election?

Some lawyers assert that provisions of Article 104 (3) can only be invoked when the court has heard the petition and determined the matter, implying that the court must first nullify the election of an incumbent before the Speaker can assume executive functions. Article 104 (3) cannot, therefore, be read independently from the fulfilment of Article 101 (1) or 101 (3).

It could not have been the intention of the drafters or the legislators, it is argued, that the incumbent president who is the subject of a petition should step aside before the court makes a ruling. It would seem the intention was for the incumbent to step aside only when the court nullifies his election or he is disqualified to stand in the second ballot.

There are four situations when the Speaker may perform the executive functions of president – when the president dies or resigns, or due to physical or mental incapacity he is removed from office and the vice-president is for various reasons, including death or mental or physical incapacity not available to take over and when the incumbent president’s election is nullified or the president-elect is barred from contesting the second ballot after a successful petition.

On the other hand, the complaint regarding the conduct of Constitutional Court judges is viewed as a disguised appeal against their decision. The provisions of Articles 101 (7) and 103 (4) which categorically state that the ruling of the Constitution Court is final mean that there can be no appeal whether or not there is suspicion of professional incompetence or the judges misdirected themselves.

Those who thought the Chief Justice could refuse to swear in President Elect Lungu because of the ongoing legal wrangles needed to consider the context of Articles 128 concerning the jurisdiction of the Court and why the Chief Justice could not overrule or do anything that denigrates is decisions. Article 128 (1) categorically states, “… the Constitutional Court has original and final jurisdiction to hear … (c) a matter relating to the President or Vice-President or an election of the President … ” while Clause (4) states, “a decision of the Constitutional Court is not appealable to the Supreme Court”

It is said that for this reason the High Court was right not to entertain complaints about the conduct of the Constitutional Court judges and their decision not to extend the hearing of petition beyond the 14-day period because the matter brought before it concerned the election of a president – a matter exclusively for the Constitutional Court.
It is an accepted truism that the wording of a constitutional document should be clear and unambiguous. That there are varying interpretations of Article 104 (3) in relations to Articles 101(1) and 101 (3) seems to suggest ambiguities. For instance, is the Constitutional Court bound to make a declaration even when the constitution says it “may” instead of “shall” declare the president-elect validly elected or only when a petition fails? Further, does the constitution require an incumbent president who is subject of petition to relinquish his office before the court makes a ruling in a petition against him?
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26 COMMENTS

    • Who is this Nyirenda and what is he selling? Isn’t he just another wako-ni-wako sly easterner trying to prove that Lungu was genuinely elected? You are time wasters! Just enjoy your Pyrrhic victory.

    • Article 104 (3) says, “where an election petition is filed against the incumbent under Article 103 (1) and 103 (3) (b), the Speaker shall perform the executive functions…”

      This is clear, but then see below

      The Speaker may perform the executive functions of president when the incumbent president’s election is nullified or the president-elect is barred from contesting the second ballot after a successful petition.

  1. Does the constitution provide for the petitioning of the incumbent as purported under Article 104? My answer is NO; only the presidential candidate (presidential elect) can be the subject of a petition. I therefore submit that article 104 (3) which states that “where an election petition is filed against the incumbent…” is still born, and any reference to it should cause the case to perish. Zikomo.

  2. What is the point in a corrupt system like Zambia. The only solution is to let nature take care of business. Nature has a way if getting rid of undesirables

    Nez blogging live from ibiza on holiday

  3. Ba NEZ lol when the same judges ruled that the ministers where illegally holding office you danced ‘aleyisa.. and ‘ngilili bello yalila’…. they rule against your wishes now they are corrupt? Mwah..amkale ayisha chindi chamana chama politics sunu its time to work…lets send these judges for attachment or bring in legal trainers to grow heir capacity, the problem is that many zed legal minds after their LLB never bother to better themselves so when faced with difficult matters they cannot think out of the box and cannot cite relevant authorities…Judge Chibomba should not have made a ‘ruling’ to extend the dates for pleadings after ‘an opportunity’ that HH saw…there are some rare grounds she could have used backed by case law to make a reasoned ruling on why the petitioners…

  4. should be allowed to continue to make pleadings but alas she was limited and her colleagues were right to overturn her partisan decision

  5. Key Word: May- if the word used was SHALL, this whole matter would have been different. May is open to interpretation, so the fact that no declaration was made, simply means that the President remained duly elected as pronounced by ECZ.

  6. IT SEEMS THE PREOCCUPATION OF UPND IS NOT TO ALLOW ECL INTO STATE HOUSE. BUT DO NOT FORGET THAT IT IS THE ZAMBIANS WHO DECIDE WHO SHOULD RULE THEM. UPND LOST THE ELECTION ON A VERY CLEAN SLATE. ALL THE TALK OF RIGGING IS JUST A FOOLISH PLOY. WHO CAN BELIEVE SUCH NONSENSE. UPND HAS FAILED TO PROVIDE THE EVIDENCE THAT THEIR VOTES WERE STOLEN. WHO STOLE? WHERE? HOW? HOW MANY VOTES? WHO WERE THE WITNESSES? WHAT WERE THE UPND AGENTS DOING? WHY DID THE LAWYERS FOR UPND FAIL TO PRESENT THEIR CASE IN 24 DAYS IF AT ALL THERE WAS EVEN ANYTHING TO PRESENT?
    1. THE LAWYERS FOR UPND KNEW THAT THEIR CLIENT HAD NO EVIDENCE THAT IS THE REASON WHY THEY WENT ALL OVER TOWN SHOPPING IN TYPICAL “TOM AND JERRY” FASHION.
    2. EVEN IF THEY HAD ALLOWED THEMSELVES TO BE HEARD, THE SITUATION STILL REMAINS THAT…

    • Their lawyers wanted to reap as much as they could knowing very well that there was no substance in their petitions. Petty petitions!

  7. IT IS SIMPLE, YOU DO NOT NEED TO BE A LWAYER
    Let us not waste time. We have attended enough court sessions in life. Lawyers just ate HH’s money. 14 days is the period for hearing a petition, and even without the “to be determined” clause simply put, the ConCourt is clothed with jurisdiction to determine the matter within the prescribed time, and not later. It is ultimate folly to think of appealing against a ConCourt decision. Question is, to which Court? The Amendment is clear, the Court’s decision “shall be final”. It is not appellable anywhere, worse still to a lower (High) Court. lawyers were busy with briefcases dashing in and out of High Court. For what? Money mongers! Criminals!BB, Kalomo

  8. Hope less complaints just accept the ruling. Some economical refugees as zambia watch dog are even saying illegal president of zambia. Very disappointed denouncing your own country and yourself failing to take part in election. Upnd grow politically and patriotically.

  9. The author of this article is lying when he says and we quote “However, upon examination of the grounds of petition, the Constitutional Court found no basis for nullifying the election of Lungu as declared by the Election Commission of Zambia.. The court refused to extend the hearing of its petition beyond the 14 days in order to receive additional evidence and witnesses from petitioners as this would have been in breach of the constitution.” End quote. The truth is the court never considered any evidence because it did not hear the petitioners because time lapsed while the court was still dealing with preliminary issues.

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