By Peter Sinkamba
On Wednesday, 28 December, 2016, the Constitutional Court dismissed Hon. Margaret Mwanakatwe’s application for a stay. The Constitutional Court ruled that it was not necessary to apply for a stay in the first place.
“In my view, 73(4) is an automatic stay where an appeal is made because the Constitutional Court will, on appeal, be determining the election petition. That is whether one was duly elected or not. I am also of the view that it is not even necessary to apply for stay once an appeal is filed. But since Article 73(4) is a new provision, the Constitutional Court has done a tremendous job by stating its proper interpretation,” Constitutional Court Judge Enock Mulembe stated in his ruling.
It’s now done and dusted. The Concourt has rendered an instructive interpretation of Article 73(4): It is not necessary for a stay when an appeal to the Constitutional Court has been lodged.
So from the lens of the Green Party, what are implications of the Concourt decision? Since Article 128 of the Constitution vests the Concourt with original and final jurisdiction to interpret all provisions of the Constitution and its interpretation is final. The first implication therefore is that from this point forward, an appeal to Constitutional Court is now an automatic stay. A Member of Parliament who loses an appeal in the High Court just needs to appeal to the Concourt and unquestionably, they will remain Member of Parliament.
Article 128 also vests the Constitutional Court with original and final jurisdiction to hear matters relating to matters the President, Vice President, and appeals of Councillors. The second implication is that any appeal from any one of these office bearers to the Constitutional Court is an automatic stay.
Furthermore, Article 128 vests the Constitutional Court with original and final jurisdiction to hear all constitutional matters. The third implication therefore is that any appeal to the Concourt relating to any constitutional issue is an automatic stay.
The fourth implication is that the High Court has been rendered useless in all other constitutional matters, especially election petitions. The High Court appears to have been practically and technically rendered a clerical registry of the Constitutional Court on election matters. It is now a waste of time and money to take, for example, election petitions to High Court. The question is: of what point or value is it to take a matter to a court whose decision has no effect at all?
The fifth implication is that since Article 128 vests the Constitutional Court with original and final jurisdiction to hear all constitutional matters, then it is only rational that the Concourt should hear all constitutional matters, including matters relating to the Bill of Rights. Since Article 128 vests original jurisdiction in the Constitutional Court, it only rational that all constitutional matters, includes the Bill of Rights, must originate in the Constitutional Court itself. This means, all constitutional cases should originate in the Constitutional Court and heard by a single judge. If one is dissatisfied with the decision of the single judge, then that person could appeal to the full bench. Such a process, not only saves time and money, but also insulates the integrity of the High Court.
The sixth implication is on the future of the law on stay. Article 23(1) of the Constitution provides that subject to Article (4), (5) and (7), a law shall not make any provision that is discriminatory either to itself or in its effect. Why should an appeal lodged in the Constitutional Court have a discriminatory effect in relation to appeals to Subordinate Court, High Court, Court of Appeal or indeed the Supreme Court, where, an appeal does not operate as a stay? Implicitly, this appears to be the end of the requirement for obtaining a stay when an appeal has been lodged, be it in Subordinate Court, High Court, Court of Appeal, or indeed the Supreme Court.
The seventh implication is that the Concourt has to revise its own rules. Order 11 Rule 7, for example, has been technically struck out by the Concourt decision in the Mwanakatwe case. Order 11 Rule 7 provides that an appeal shall not operate as a stay of execution or of proceedings under the judgment appealed against unless the High Court or the Court so orders and no intermediate act or proceeding shall be invalidated, except so far as the Court may direct. According to the Concourt interpretation of Article 73(4) in the Mwanakatwe Case, Order 11 Rule 7 contradicts the Constitution. It is therefore illegal. Article 1 provides that the constitution is the supreme law of the Republic of Zambia, and any other written law, customary law and customary practice that is inconsistent with its provisions is void to the extent of the inconsistency. The Article also provides that an act or omission that contravenes the Constitution is illegal. Order 11 Rule 7 is now illegal and useless. It is a relic piece of legislation. Many more rules will also be thrown into the trash bin, as a consequence.
The Author is the President of the Opposition Greens Party in Zambia