How the Principle Behind ConCourt Decision on Mwanakatwe’s Application for Stay will Shape the Future

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Green Party leader Peter Sinkamba

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

23 COMMENTS

    • This is what you get when there is a convicted fraudster of a drunkard lawyer that is in State House after stealing the election.

      How much more clueless can he be?

      He has appointed ConCourt Judges not on the basis of their qualifications but on how sympathetic they are to him and how easily they can be bought!

      And Zambians will suffer for it!

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    • The Kangaroo Court makes rules as it goes along. Every Injustice of this KanCourt will give you a different illogical ruling. The KanCourt is a sheer waste of time. It is better to sort out matters physically on the streets than going to court. Zambia is now the new wild west.

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  1. Justice Enock Mulembe’s Ruling should be reviewed by the Full Concourt Bench. It appears Mulembe made a Ruling without considering its implications on the Constitution and other Courts. For now the Bill of Rights falls under the Jurisdiction of the High Court so how can Concourt just override peoples’ Rights? It appears these Concourt judges are not experts at Constitutional Law. Mulembe’s Ruling has served to undermine the High Court and other Courts. So if a Concourt Judge says Murdering an innocent person is a Right then that Ruling is Final? The Full Concourt Bench must re-visit Justice Mulembe’s Judgment otherwise it is a waste of time for High Court Judges to make judgments on Election Petitions. Why is Concourt taking forever to hear the Petition Appeals? Concourt to date is…

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  2. Why would a learned judge ignore the rules that govern his court, excerpt to conclude that some inducement of sorts was offered. The fruit has not fallen far from the tree here. If fellow judges are waken up at 03:00 in the morning to act in their masters favor, irrespective of the court rules. One wonders which court operates at 03:00 in the morning? and later on the judge gets a promotion. What would stop this judge from following suit? It appears this has now become the only way to rise to the top in the judiciary?

    Should people continue going to seek justice from these courts , or must we now resort to instant justice in whatever form, God Forbid, suffice to say, this is a recipe for anarchy.I hope Judge Enock Mulembe is reading this.

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    • Instant justice is what Lungu wants for Zambia. Don’t bother with the PFooolish Courts.

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  3. Thank you Mr Sinkamba for breaking it down for us laymen. I think the Constitution itself requires serious amendments to remove all these contradictions. You have one provision awarding a right while another takes it away. As more and more contradictions are brought to light, the new Constitution needs an overhaul.

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  4. Very clever Peter is. I think even the Judge that made the decision didnt realise that he was changing the law.
    This is the problem of having judges that are always drunk making decisions at 4:00am after having a quickie when the thinking is not straight!

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  5. I THINK WE AS ZAMBIANS ARE ALL TO BLAME FOR THE LACUNAS THAT WE FIND IN OUR CONSTITUTION. FIRST OF ALL, THE OPPOSITION WANTED A NEW CONSTITUTION IN ORDER TO “FIX” THE RULING PARTY, BY BRINGING IN ALL SORTS OF CLAUSES. THEY EVEN GATHERED AT C.O.T HOLY CROSS TO DENOUNCE THE RULING PARTY , CALLING UPON THE RULING PARTY TO RELEASE THE CONSTITUTION. THE RULING PARTY ALSO WANTED TO PROVE A POINT THAT THEY ARE NOT AFRAID OF ENACTING THE NEW CONSTITUTION EVEN WITH “CLOSED EYES”. WHAT WE ALL FORGOT WAS THE FACT THAT THERE WERE A LOT OF LACUNAS IN THAT CONSTITUTION. THE CONSTITUTION WE ALL WANTED IS NOW BITING EVERYONE,THE OPPOSITION, THE MPS, THE PRESIDENT, THE JUDGES ETC. WE NEED TO LEARN A LOT OF LESSONS HERE. EVEN PEOPLE WHO ARE LEANED DID NOT FORESEE THESE PROBLEMS.
    1. DO NOT ENACT A…

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    • Sheer stoopidity! Since the opposition do not control Parliament and it is the PF Parliament that changed the Constitution, how did the opposition fix the ruling party? Try thinking for a change before rushing to post nonsense.

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  6. ……CONTINUED
    1. DO NOT ENACT A CONSTITUTION TO “FIX” THE RULING PARTY
    2. DO NOT ENACT THE CONSTITUTION TO PROVE A POINT THAT YOU ARE NOT AFRAID

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  7. Yes indeed the new constitution was the factor to determine the outcome of the past general elections.
    Now that we have it it has become our tormentor
    We wanted to use the paper to win elections, everyone one was up in arms against the ruling powers and cried night and day until we did it.

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  8. Who was the opposition when the new constitution was first proposed…..how can an opposition “fix” when a ruling government is the one who adopts or denies the said constitution

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    • IT WAS NOT THE PF WHO MADE THE CONSTITUTION……….I REMEMBER HH SAYING “RELEASE THE CONSTITUTION, SI CONSTITUTION YAKO”.
      NOW THE CONSTITUTION HAS BEEN RELEASED AND ENACTED. IT WAS MADE BY MANY STAKE HOLDERS INCLUDING THE OPPOSITION.
      THE OPPOSITION THOUGHT PF WILL SHY AWAY FROM TH 50%+1, VICE PRESIDENT RUNNING MATE, DUAL CITIZENSHIP ETC. THEY FORGOT THAT ZAMBIA HAS MORE SERIOUS PROBLEMS THAN THESE. NOW YOU HAVE YOUR CONSTITUTION… IT WILL HAUNT YOU. THIS IS ACTUALLY SAD FOR US.

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  9. Chakolwa did not appoint these Concourt Judges on merit but to serve his political interests. Already Chakolwa’s friends at Concourt have served him well by doing their work at Night and Week End as Judges. The Presidential Petition has been blocked by Chakolwa at Concourt and the MP Appeal Petetions are now being interfered with to influence a Ruling favourable to Chakolwa. To prevent further embarrassment Chakolwa has directed that no more High Court Petition Judgments should be announced until further notice. The High Court has also been undermined to block and frustrate the Presidential Petition. Chakolwa has compromised the whole Judiciary in his quest to establish one man dictatorship in Zambia.Justice Mulembe is part of the scheme of arrangements to undermine and influence all…

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    • @ Chisenga, @ Zulu is right. The evidence is right in front of your eyes, what more evidence do you want?

      What is happening in Zambia is a circus of clowns or mafia masquerading as national leaders. The independence of the judiciary is compromised to the point there’s no need to even go to court against Lungu and his minions.

      We need critical analysis like this provided for by this Peter Sinkamba. Every word of a judge, a constitutional court judge has implications and theses clowns ought to know that. This one is simple, regardless of what the paper says: natural justice demands that once a court passes a judgement, that judgement is valid and final until overturned by a higher appeals court. That’s an MP ceases to be one until or unless a higher appeals court overturned that…

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  10. Constitutional is a mess. We just need to get rid of all judges. In my knowledge, this court was supposed to be above the Supreme Court n the supreme court judges were supposed to be in charge

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  11. You are very right.
    The next thing to happen now is that a person convicted of murder can appeal to the Concourt for a violation of his constitutional rights.The high court judgment will be stayed automatically until determined by the ConCourt…..(Enough time for the individual to run away).

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  12. The high courts have been rendered useless….I don’t see the ConCourt surviving beyond ECL’s rule

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