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Friday, July 3, 2020

The 2016 Zambia presidential election petition: How not to handle election petitions

Columns The 2016 Zambia presidential election petition: How not to handle election petitions

President Edgar Lungu take Photo with Constitutional Court President and Judges (2nr) Constitutional Court President justice Hildah Chibomba, (r) Constitutional Court Judge Justice Mulenga Mugeni, (from left) Constitutional Court Judge Justice Mwewe Anne Sitali (l) Constitutional Court Judge Justice Enock Mulembe, and Constitutional Court Judge Palan Mulonda shortly after swearing in Ceremony of Constitutional Court Judges at State House
President Edgar Lungu take Photo with Constitutional Court President and Judges (2nr) Constitutional Court President justice Hildah Chibomba, (r) Constitutional Court Judge Justice Mulenga Mugeni, (from left) Constitutional Court Judge Justice Mwewe Anne Sitali (l) Constitutional Court Judge Justice Enock Mulembe, and Constitutional Court Judge Palan Mulonda shortly after swearing in Ceremony of Constitutional Court Judges at State House

If the drama that was Hakainde Hichilema v Edgar Chagwa Lungu (2016/CC/0031) has any lessons for the continent, it is how not to adjudicate upon a presidential election petition. Three judges of the court effectively succeeded in making an unfortunate mockery of their bench and risking the otherwise good image Zambia’s electoral process has enjoyed for a few decades now. We should, however, not be too quick to cast aspersions on the court and the learned judges. In order to understand what transpired in the Constitutional Court of Zambia, we have to look at the relevant legal provisions guiding presidential election petitions.

The Constitution of Zambia (as amended in 2016) provides at article 101(2) that a candidate must garner more than 50% of the valid votes cast to be declared president in the first round of voting. Article 103(2) provides that, ‘[t]he Constitutional Court shall hear an election petition relating to the president-elect within fourteen days of the filing of the petition’. In a well-meaning attempt to rectify a mischief that has plagued many an African nation, Zambians introduced this 14-day amendment in January 2016. Prior to this amendment, such petitions would languish before the courts for years and by the time decisions were handed down, the person whose election was challenged was well into his/her term of office. The effect was that either too much uncertainty was created by the pending petition that the president could not fully perform the important functions of the office, or the petition was so overtaken by events altogether that the court’s decision was more or less predetermined. Conventional wisdom therefore required some degree of certainty to be legislated. Zambia borrowed heavily in this regard from Kenya which had only five years earlier constitutionalised a strict 14-day timeline for its Supreme Court to hear and determine presidential election petitions.

Fast-forward to August 2016 and the re-election of Edgar Lungu by 1,860,877 votes against Hakainde Hichilema’s 1,760,347 votes was challenged by Hakainde at the Constitutional Court. The petitioner and the court seem to have been oblivious of the Rules of the Constitutional Court which appear to have either been mischievously drafted or were simply the result of bad legislative drafting. The rules require the respondent to file an answer to the petition within 5 days of service and the petitioner to reply within five days of being served with the answer. Thereafter, a process of discovery is done which is followed by a status conference before the hearing can commence. These preliminary processes even if rushed consume a better part of, if not the entire, 14 days.

The above constitutional provision read together with the rules of the court presented an uncomfortable dilemma for the court and the petitioner. By the time the preliminary processes were dispensed with, it was 2 September 2016, the last day of the 14 days. Had the court anticipated this dilemma, and it should have by all reasonable expectations, then perhaps it would have suo motto overruled or ignored its own rules in favour of the supremacy of the constitution and set shorter timelines for the preliminary processes in order to leave a few days out of the 14 days for the hearing. Better still, the petitioners should have anticipated this scenario and moved the court to interpret the rules in light of article 103(2). The petitioners neither moved nor did the court volunteer. Both failed to anticipate the awkward position they would find themselves in.

When this dilemma was apparent, the court took the easy but controversial way out. Majority of the court held on Monday 5 September 2016 that since the constitutional 14-day timeline had lapsed on Friday 2 September 2016 before the petitioners presented their case, there was no petition to be heard. The petition was dismissed for want of prosecution. Interestingly though, the court did not deliver this decision on 2 September when the time supposedly lapsed, but on Monday 5 September after adjourning proceedings to allow the petitioner to engage new legal representation. The court therefore staged an unprofessional and unfair ambush on the petitioner because he was neither given an opportunity to present his case nor asked to show cause why the petition should not be dismissed on 2 September 2016.

While computation and interpretation of time is arguably best done literally to give some degree of certainty and finality in legal matters, presidential election petitions are not per se legal in the strict sense of the word. They traverse the realms of the legal and the political and as such care should be taken when adjudicating upon them as the political consequences can be unpredictably unpleasant.

The court would have done its reputation and the people of Zambia a favour by adopting an expansive and generous interpretation of article 103(2). The article provides that ‘The Constitutional Court shall hear an election petition relating to the President-elect within fourteen days of the filing of the petition’. The ‘devil or angel’ herein is in both what it says and what it does not say. The provision only requires the court to ‘hear’ the petition within fourteen days. The provision does not require the court to determine the petition within fourteen days, but only to hear it. Therefore, it is submitted that the constitutional requirement is met if the court commences ‘hearing’ of the petition within fourteen days of its filing. Further, no timeline is set for the court to finish hearing the petition so this process can continue for as long as the court deems fit as long as it commences within fourteen days of filing. Since the provision is silent on the time for ‘determining’ the petition, the court’s judgment could be issued anytime after the hearing is completed as there is no deadline for this. To cure the danger this interpretation poses of a prolonged process, the court ought to read the provision in light of the spirit of the constitution which is to ensure justice. Justice can neither be ensured by rigid reliance on technical provisions nor unreasonably prolonged processes, but rather by a process that enables the court to fully but expeditiously interrogate the law and the facts. Indeed, Munalula J strongly argued for such purposive interpretation in her dissenting opinion. Unfortunately, however, for the petitioner and the Zambian electorate, minority had its say while the majority had its way.

Even if the conservatives on the bench were still inclined towards a literal reading as they indeed were, one other option was still available to them. The ‘fourteen days’ as provided in the provision could have been interpreted as referring to working days of the court. As such, only week days would be computed and weekends would not form part of the computation. The final day for the court to render judgment would therefore have been 8 September 2016, that being 14 working days from the date of filing. While still grossly insufficient, it would have afforded the court a few days to at least hear the parties’ arguments even if just to give the illusion of a hearing.

The Constitution of Kenya 2010 from which Zambia supposedly drew inspiration when drafting the above provision also provides at article 140(2) that, ‘[w]ithin fourteen days after the filing of a petition … the Supreme Court shall hear and determine the petition… .’ This provision also caused almost similar tension in Raila Odinga v Independent Electoral and Boundaries Commission (2013) when the narrow electoral victory of Uhuru Kenyatta was challenged by Raila Odinga. The Supreme Court interpreted the above provision to the effect that the petitioner is not expected or entitled to reply to the respondents answer to the petition in the interest of time. While the court cannot be faulted for limiting the preliminary procedures to ensure ‘ample’ time is left within the fourteen days to ‘hear’ the petition and make a determination, this again draws attention to the gross inadequacy of the fourteen days.

These two presidential election petitions highlight the counterproductive effect of otherwise well-meaning constitutional provisions. While the mischief of unreasonably prolonged election petitions has been cured by these constitutional provisions, the flip-side has been to rob the judiciary of sufficient time to hear petitions, evaluate evidence and render judicious decisions that uphold the integrity of the electoral process and promote democracy. What the Kenya and Zambia scenarios have shown is that courts have no option but to hold what amounts to formality hearings, if at all, and make obligatory pronouncements without having the benefit of properly hearing and deliberating upon all the evidence. While these processes may be legal in the strict sense of textual law, they raise serious questions as to whether they are just and moral to the extent that politics is moral. Considering the nature of presidential election petitions and the potential implications for a country, it is indeed in the public interest for the court to have sufficient time to hear the petition, properly consider rival arguments and render its decision. This is a decision that the court should not render lightly. Perhaps it is time to reconsider our judicial approach to presidential election petitions and the legal frameworks governing them.

By Rodger Owiso


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    • @Makasa

      The time frame is not the problem here, but its the Concourt ‘s attitude that derailed the petition. You can move as quick as you want to present the evidence before the court, but its entirely up to the judges to either entertain your evidence or not.

      In this case the opposition tried their best to present the evidence on time but the Concourt frustrated their effort by adjourning each the opposition moved to present the evidence.

      Any witnesses who showed to give evidence were then followed by PF thugs and intimidated.

      Why did the Concourt refuse to hear the evidence right from the start?

      What ever the case, posterity will judge Zambians who allowed this stupidity to happen harshly. Already some are crying that they campaigned hard for lungu and they need jobs now…

    • HH GBM had no valid petition apart from wanting Ecl step down and court rules on their favour. When they filed their so called petition they even rushed to make calls that Ecl should now step down because we have filed a petition. Contrary to their thinking little did they know that the stepping down they were busy calling for applied to the second ballot.

    • 100%. But the egg and chicken scenario still remains. How much time will be enough and what are the consequences of this length of time to the nation and to justice being served. I do not foresee a simple solution here, neither do I see a satisfied loser at the end of it all. Moreover given time lawyers will always extend until kingdom comes. So the petitioner must have credible evidence ab-initio, a ”primaface” case not based on political emotion like the case was with HH/GBM. They were hoping for time to raise doubt in the electoral process and using semantics and arguments (like in a normal court process) to sway the ConCourt, when clearly the spirit of the electoral petition is about glaring and significant lapses in the process. Not theoretical ones like the ZNBC reports and a…

  2. We made a big mistake on the 14 days. So we copied and pasted it from Kenya??Oh Zambia everything is copy and paste!!My dear Zambia!!We should have given it a minimum of 28 days. The Presidential petition is a very important matter that should be given sufficient time. The ConCourt also is to blame. They could have passed some rulings on preliminary issues within a day. Isn’t it just a matter of consulting the constitution on what it says on certain issues and make a ruling the same day?

    • 28days of the country being on stand still?? Not healthy for the country!
      Upnd should be honest, in the buddle of documents submitted in court did they include the evidence??

  3. Bwana Roger owiso

    Stop kidding yourself about what transpired during the petition. The judges were asked to interpret the so-called article 103 but refused to give their interpretation and instead adjourned the case. After being convinced by HH and GBM on the 14th day they conceded and offered the interpretation and ruled that trial would resume the following week.

    There was totally no willingness on the part of the court judges to accord the petition the hearing it deserved because the evidence in UPND possession was overwhelming. So they dragged on so they could rely on the 14 days time frame to dismiss the case.

    Right from the start it was evident that PF had connived these judges on how to frustrate the petition but still show the world that due process was adhered to.They…

    • Pf lawyers actually helped those bena mushipe a great deal by disbanding the 80 preliminary cases to only 30. Had it not been for time factor all those useless preliminary were going to be squashed and allow mushipe present her petition on the second day. To our surprise they started talking of adding more useless flesh to the already useless petition. What more did you want the Pf lawyers to do.

    • It might be added that in spite of the Concourt Judges being aware of the 14 days limit, they decided not to sit during weekends but were quick to include them in the computation of 14 days limit. One would have expected that the Concourt should have guided the process from the beginning by setting the time frame for the various aspects of the legal process.

    • The time frame is already set in the constitution no need for judges to do that. That’s why you need competent lawyers to represent you who understands the jigs of the law not the G-string wearing lawyers.

  4. The author has been quite objective in his analysis of the Zambia petition. But why has the author left out one key factor that derailed the course of justice in this petition, and that being the corrupt influence over the concourt by Lungu. That’s a very clear fact cast in stone that Lungu exerted too much pressure on the judges. Had the concourt judges operated independently the issue could have been closed in an honourable manner to the judicial system and to the citizens of Zambia, and to even Lungu himself. Lungu can smile today but time moves at its own pace and history has been recorded about Lungus appetite for power. Its not the concourt judges to blame but its Lungu to blame because Lungu wants power at all costs. This is a fact. He wants power not because he has the capacity…

  5. Now here is straight forward elocution of the petition saga as told obviously by someone who is educated in the law faculties. Our retired boring general miyanda should learn something from this. This a very open unbiased argument easily understood by all. Hacken mr miyanda, here is your opportunity to get some free law classes. Ask my learned friend Owiso for guidance and stop boring us with your useless tales.

  6. This is what I expected of our learned scholars like Professor Mvunga or Hansungule. This is how you write to help ordinary people understand issues. From his explanation one can see that perhaps we need to revisit : 1. the computation of days and 2. the number of days itself. 14 days seems insufficient with the back and forth procedures mentioned before the case actually begins,

    Now can the UPND please spill the beans. We are still interested. It will help us know what to do come 2021. Do not wait for election time we might not believe YOU then. TELL US NOW.

  7. They beans could have been spelt if they was any. Both parties were required to file in bunddles of documents which were to go with avidavits. Ask bena Mushipe how many volumes of bunddles they filed in court. Just do your own analysis, the petitioners clearly didn’t have any evidence to file in.
    The reason why they were wasting time is because they were looking for evidence.

  8. Give you a sense of the perception the world now has of our judiciary…for a long time constitutional lawyers will refer to the Zambian Scenario to teach how not to handle an election petition. it is a small world after all.

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