By Brig Gen Godfrey Miyanda
Recently the Minister of Justice, Honourable Given Lubinda, alleged on ZNBC TV that there was a conclusive judgement on 5th September 2016 by the Constitutional Court regarding the election petition by UPND President Hakainde Hichilema and his Vice President Geoffrey Bwalya Mwamba. This assertion is a lie. In fairness to the Minister and what he called “the PF Government”, I reproduce the verbatim statement and then proceed to analyse and respond to it.
The Minister’s Verbatim (emphasis my own): “..that on the 5th September 2016 when the Constitutional Court passed their judgement over the matter it came to a complete close. There is no election petition that is being heard by the courts of law. The matter that Hakainde and Geoffrey Bwalya Mwamba are following up in the High Court is an issue where they have asked the Court to determine whether they were given their right to be heard by the Constitutional Court or not. It is not the same as the petition. The election petition was concluded and that is the reason why we have a President in Zambia in the name of President Edgar Chagwa Lungu. There is no dispute whatsoever on that matter. Now let us assume that the High Court said to Hakainde that he was not heard that does not necessarily mean that the election of Edgar Chagwa Lungu is nullified. Far from it. And I would like to ensure that the Zambians are told the truth that there is only one incumbent President until 2021. That President is Edgar Chagwa Lungu and his PF. They are the ones in government.” END OF QUOTE. My analysis/response follows.
THE LUBINDA RUMBLE IN LUSAKA – BLOW BY BLOW!
ROUND 1 LUBINDA DELIVERS BRUTAL OPENING PUNCH BELOW THE BELT: that on the 5th September 2016 when the Constitutional Court passed their judgement over the matter it came to a complete close.
MIYANDA WINCES PAINFULLY, THEN BOBS AND WEAVES: There has been NO JUDGEMENT of the Hichilema/Mwamba Petition; this is a fabrication, if not a deliberate misrepresentation. Ordinarily a judgement follows the giving of evidence by the parties to a petition, with the attendant cross examinations, re-examinations and finally submissions (legal arguments). The Court would then retire to consider the evidence and submissions. I was in court on Friday 2nd September 2016 from about 09.30 hours (after being chased from the Court grounds by some strangely dressed uniformed persons – maybe security, maybe PF cadres) until soon after midnight on Saturday 3rd September 2016; no such judgement was delivered in Open Court. Is the Minister confirming that a different Court, otherwise known as a Kangaroo Court, took place elsewhere? If there was no judgement then the Constitutional Court door has remained wide open and hence there was nothing that came to a COMPLETE CLOSE – no Bwana Minister, you have lied that the CONCOURT has delivered a judgment in the Hichilema/Mwamba petition. If the judgement does exist it is a fraud and an actual judicial scandal in Zambia! If what I have stated herein is treason, then so be it!
ROUND 2 LUBINDA ATTEMPTS THE ALI SHUFFLE: There is no election petition that is being heard by the courts of law.
MIYANDA COUNTERS WTH A GUNDUZANI RIGHT BLOW AND A LEFT HOOK: This is political gibberish and not law. The genesis of the Hichilema/Mwamba complaint in the High Court is the premature baby birthed by the CONCOURT. The Petitioners’ claim of “NOT BEING HEARD” is a valid grievance that the Constitutional Court DID NOT hear the petition (that is, receive evidence) nor did they determine (consider the evidence and arguments and arrive at a decision) in terms of the Constitution of Zambia (Amendment) Number 2 of 2016 and the Electoral Process Act Number 35, 2016. Contrary to Minister Lubinda’s judgement, if the High Court holds that the Petitioners were NOT HEARD it follows that their petition is still alive in the CONCOURT incubator and must be nurtured and retrieved therefrom, since one age-old principle of law is that THERE IS NO RIGHT WITHOUT A REMEDY. The Learned Authors in Halsbury’s Laws of England Volume 10 at paragraph 716 state thus “The General Rule is that wherever there exists a right recognised by the law, there exists also a remedy for any infringement of such a right.” In Ashby v White (1703) 2 Ld Rym 138 at 952, Holt CJ held “Indeed it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal.” To say that the matter before the High Court has nothing to do with the Petition is hollow and has no legal basis but seeks to oust the jurisdiction of both the CONCOURT and the High Court to deliver justice, even in the face of the so-called 14 days limitation. In Attorney General v Boden and Another (1912) 1 KB 539 at 561 Hamilton, J held thus “Where an issue arises upon the proceedings before the Court, the jurisdiction of the Court to dispose of that issue can only be ousted by plain words.” In Ealing London Borough Council v Race Relations Board (1972) AC 342 at 353 Lord Donovan stated “…Clear words are necessary to oust the jurisdiction of the High Court and there are none in the Act of 1968.” I contend that reliance on the 14 day limitation provision is misconceived as the provision has no express fetter against either the CONCOURT or the High Court and is clearly a departure from well-founded fundamental principles on the jurisdiction of Courts to HEAR AND DETERMINE CONCLUSIVELY matters before them. In Pyx Granite Co. Ltd v Ministry of Housing and Local Government (1960) AC 260 at 286 Lord Simmonds states “…It is a principle not to be taken away, by any means to be whittled down, that the subject’s recourse to Her Majesty’s courts for the determination of his rights is not excluded except by clear words. That is, as McNair J called it in Francis v Yiewsley and West Drayton Urban District Council, a ‘fundamental rule’ from which I would not for my part sanction any departure”. I again defer to Halsbury’s Laws Volume 10 at paragraph 720 where the Learned Authors state, on the ouster of jurisdiction by statute, “The subject’s right of access to the Courts may be taken away or restricted by statute, but the language of any such statute will be jealously watched by the Courts and will not be extended beyond its least onerous meaning unless clear words are used to justify such extension.” Is the Minister of Justice labelling the Petition before the High Court illegal and/or a mere waste of time? That petition is too serious to be wished away, even by the very CONCOURT.
ROUND 3 LUBINDA AIMS ILLEGAL BLOW TO THE BACK OF THE HEAD BUT MISSES: The election petition was concluded and that is the reason why we have a President in Zambia in the name of President Edgar Chagwa Lungu.
MIYANDA COUNTERS FURIOUSLY BY DELIVERING A PAINFUL UPPERCUT UNDER THE JAW: It is a lie to allege that “the election petition was concluded…” since the Petition was not heard nor determined in accordance with Article 101 of the Constitution (Amendment) Act Number 2 of 2016 which was assented to by President Edgar Chagwa Lungu on 5th January 2016. The Presidential Petition is only to be concluded when, AFTER hearing evidence and submissions from the parties, the Constitutional Court makes the following pronouncement in open Court and in the presence of the parties, along the following lines: (a) that the Respondent, in this case Presidential Candidate Lungu, was validly elected; or (b) that Presidential Candidate Lungu was NOT validly elected; or (c) that it was Presidential Candidate Hichilema who was validly elected; or (d) that there was non-compliance with any provision of the Constitution as amended and/or other law, and in this case CONCOURT orders what should happen, for example hold a re-run of the election. I maintain that no such pronouncement or Ruling was given in Open Court either for Candidate Edgar Chagwa Lungu or Candidate Hakainde Hichilema. Hence there is no conclusion as alleged by the Honourable Minister.
ROUND 4 LUBINDA EXECUTES A DUMMY: Now let us assume that the High Court said to Hakainde that he was not heard does that mean that the election of Edgar Chagwa Lungu is nullified? Far from it.
MIYANDA COUNTERS WHILE SHOUTING ‘TAKE THAT’: it means that there is NO JUDGEMENT of the said electoral petition – period!
ROUND 5 LUBINDA ATTEMPTS TO LAND A SPIRITUAL AND MORAL PUNCH BUT MISSES: And I would like to ensure that the Zambians are told the truth that there is only one incumbent President until 2021. That President is Edgar Chagwa Lungu and his PF. They are the ones in government.
MIYANDA IS MOMENTARILY DISORIENTED BUT QUICKLY NOTICES THE TRICK AND REMEMBERS HOW TO RESIST WITH A CHRISTIAN QUIP: The truth that is awaited by all right thinking Zambians is the truth of the evidence to be provided by the witnesses for the Petitioners, the witnesses for the Respondents, the legal arguments by both parties, the determination by an impartial CONCOURT and the final declaration by the same impartial CONCOURT that either Candidate Lungu had been validly elected, or Candidate Hichilema had been validly elected; or that in view of non-compliance with the Constitution (Amendment) Number 2 of 2016 and other law, the ECZ should conduct a re-run of the presidential election. In this regard this MUST be the truth communicated in a judgement by the CONCOURT in this Christian Nation. Why has President Lungu been reluctant to let God reveal the truth through ballot re-counts and truthful evidence tested by rigorous cross examination by both sides?
ROUND 6 LUBINDA ALMOST GIVING UP, PLEADS AND SEEKS PUBLIC ATTENTION, SCREAMING: President Lungu was sworn in.
MIYANDA SCREAMS BACK ‘BOMA YEEEH’ AND DELIVERS THE KILLER ‘FORGERY’ PUNCH: Minister, that is not a credible excuse. A forged cheque does not become good just because it has been cashed!
On 4th September 2016, before the alleged judgement on 5th September 2016, I wrote a statement titled “Why President-Elect Lungu must Vote Yes for the Concourt Midnight Decision!” which was published by the Lusaka Times (www.lusakatimes.com) on 4th September 2016. In the concluding paragraph I wrote to Candidate Lungu “Finally I believe that you, as a Christian, want the truth of what transpired during the last elections to be established so that our efforts at uniting the nation will be made easier. Please, Sir, I urge you to let the Petition continue and for you to stand up in Court, boldly and truthfully to give your rebuttal evidence.”
My Big Question is: who applied or complained to the CONCOURT to review their decision delivered on Friday at 23.45 hours on 2nd September 2016? Under what provision? Where, when and how was that application/complaint, if any, managed? And, further, if the CONCOURT’s jurisdiction ended at midnight leading to 3rd September, where did the same Court acquire the jurisdiction to dismiss or pass judgement on 5th September 2016? YOU’ALL, ANSWER THIS BIG QUESTION TRUTHFULLY!
I have said my own!
ONE OF MANY CONCERNED ZAMBIANS
[16TH APRIL 2017]