RESPONSE TO BLOGGERS ON MY STATEMENT “MINISTER OF JUSTICE HAS LIED”!
[By Brig Gen Godfrey Miyanda – 22nd April 2017]
I thank all who commented on my article published by LT on 18th April 2017. I have been challenged to cite local authorities, rather than ‘foreign’ ones, to justify my alleged “negative” analysis which is said to be a disservice to the nation. I accept the challenge.
My article was commenting on the official Government statement by the Minister of Justice, alleging that the Constitutional Court (CC) had judged and concluded the Hichilema/Mwamba petition. I quoted the Minister verbatim.
I contend that in an election petition the final judgement or conclusion is arrived at by the Court declaring the status of the challenged election result declared by the Returning Officer. There is no guesswork involved as the Court relies on each side’s evidence in Court, supported by legal arguments. I say that there is no such judgment or conclusion on record by the CC as alleged by the Minister of Justice.
More than 50 bloggers commented. The real controversy at this stage is whether the Petition was heard, determined and/or concluded by the CC in accordance with the law relating to election petitions, which I say it was NOT.
It is NOT practical for me to respond individually to bloggers as I usually do. However, my response covers the pertinent common comments encompassing the opposing bloggers represented by the indicated, even though many did not understand what they were commenting on. 1.3 @HH oval head; 1.16 @Uncle Charles; 1.17 @ Arm Chair Critic; 1.23 The Chosen One; 6 @ Dev; 9 @ zedoc; 11 @ Guliat; 13 @ Mauden Shula; 16 @ zedoc; 24 @ Guilat; 26 @Terrible; 27 @ ?; 49 @ lemba; 54 @Kwangala; 55 @George.
I summarise the opposing views below:
That the petitioners and their lawyers are to blame for their alleged failure to give evidence within 14 days;
That the 14 days limitation in the Constitution is mandatory; and
That it is not practical to nullify the election of a president in an African setting.
The law guiding elections in general, and specifically Presidential Elections, is found in the Constitution of Zambia Chapter 1, as amended by the Constitution of Zambia (Amendment) Act Number 2 of 2016, which was assented to by President Edgar Chagwa Lungu on 5th January 2016, in full public view at the Independence Stadium at Lusaka, Zambia.
JURISDICTION OF THE CONSTITUTIONAL COURT
The jurisdiction to hear and determine presidential elections in Zambia is vested exclusively in the Constitutional Court of Zambia (CC) in Article 128 which provides:
128 (1) Subject to Article 28, the Constitutional Court has original and final jurisdiction to hear –
a matter relating to the President, Vice-President or an election of a President.
COMMENT: In this regard the CC is the Court of First Instance as well as the Final Court, whose decisions are NOT appealable. For this jurisdiction to be triggered there has to be a declaration of the election result by the Returning Officer, contemporaneous with the completion of the vote totalling phase of the presidential election. This is then followed by a complaint, otherwise called a petition, by a petitioner indicating the grounds and naming who should answer the said petition. The parties to the petition must present their case and legal arguments, at the end of which the CC deliberates, analyses and declares its order or judgement, almost always in Open Court. I contend that the CC itself, not the parties, MUST drive the process at every stage to its logical conclusion of delivering the final verdict on the challenged election result.
I contend that Public Policy is that only a democratically elected Zambian shall assume and retain the Office of President, hence it is imperative for a petition that has been filed in time to be heard and determined, following evidence and legal arguments by both sides. Beyond the preservation of the right to petition, a credible final determination of a petition ensures the peaceful continuation of Zambia as a multiparty and democratic sovereign state. I contend that failure to hear and determine any petition conclusively will always have a negative effect on the very issues that the Government keeps talking about without acting, namely the unity, security and stability of the state. I contend that it is criminal to refuse to secure ballots when demanded by a petitioner. I further contend that to refuse or neglect to hear and determine a petition filed within the prescribed period borders on treason, as that act threatens the very existence of Zambia as a democratic sovereign state. This impasse could lead to citizens completely losing confidence in the judicial system and consequently resorting to unconventional means to redress their grievances.
Article 47 provides as follows:
(1): “Election to the office of President shall be conducted directly, under a majoritarian electoral system, where the winning candidate must receive more than 50 percent of the valid votes cast, and in accordance with Article 101”.
The said Article 101 provides
(1) ‘A president shall be elected by registered voters in accordance with Article 47 (1) and this Article’.
(2) the Returning Officer shall declare the presidential candidate who receives more than fifty percent of the valid votes cast during the election as President-elect.
(4) A person may within seven days of the declaration made under clause (2) petition the Constitutional Court to nullify the election of a presidential candidate who took part in the initial ballot on the ground that –
the person was NOT validly elected;
that a provision of this Constitution relating to presidential elections or other law was not complied with.
(5) The Constitutional Court SHALL HEAR an election petition filed in accordance with clause (4) within 14 days of the filing of the petition.
(6) The Constitutional Court may, AFTER HEARING AN ELECTION PETITION –
a. declare the election of the presidential candidate valid.
b. nullify the election of the presidential candidate; or
c. disqualify the presidential candidate from being a candidate in the second ballot.
(7) A decision of the Constitutional Court made in accordance with clause (6) is final.
COMMENT: I contend that once the election result declared by the Returning Officer is challenged, all acts related to the purported election of a presidential candidate are brought in issue and should be examined and resolved by the CC after hearing and analysing the evidence and legal arguments submitted for and against. I contend that before concluding the election petition the CC would receive evidence from all parties to the petition in order to be satisfied that only valid votes of registered voters were cast and counted and that the more than 50 % threshold declared by the Returning Officer consisted only of the said valid votes. I say that there is no provision for assumptions, guesswork, technical gymnastics let alone Kangaroo Courts!
The Electoral Process Act Number 35, 2016
Article 48 of the Constitution as amended provides that “the electoral process for electing a President, Member of Parliament or councillor shall be as prescribed.”
COMMENT: On 6th June 2016 President Lungu assented to The Electoral Process Act Number 35, 2016, which is now the prescribed Act of Parliament for the electoral process.
Section 3 of the said Act Number 35, 2016 provides the following guiding principles for application in the conduct of elections, inter alia:
(d) Transparent and credible electoral process.
(l) Transparent, accurate and reliable vote counting procedure.
(q) Impartial handling of election complaints.
COMMENT: Clearly a petitioner asking, for instance, for the verification and/or recounting of the ballots is exercising the right to petition and be heard on the Returning Officer’s declared results and wishes to ensure a transparent, credible, accurate and reliable result. I contend that such an effort to demand to be heard cannot and ought NOT to be impeded by technical road blocks such as the now infamous 14 day limitation that has been totally abused.
The reason for the CC declining to continue to hear the petition on the scheduled 5th September 2016 was that the Court’s jurisdiction had expired at midnight of the night of 2nd September 2016. If this be so, where did the Court suddenly find the jurisdiction to deliver the “judgement” on 5th September 2016 as alleged by the Minister of Justice? Further, if the Court had no jurisdiction on 5th September 2016 it is contended that their Order given within jurisdiction before midnight on 2nd September 2016 which properly adjourned the hearing to 5th, 6th, 7th and 8th September 2016 for the continued hearing of the petition remains undisturbed until it is PROPERLY REVIEWED, with the parties in attendance and making submissions before the CC’s next order.
14 DAYS TO NOWHERE
The principals of judicial authority are enunciated in Part III of the amended Constitution. Article 118 provides thus:
The judicial authority of the Republic derives from the people of Zambia and SHALL BE EXERCISED IN A JUST MANNER AND SUCH EXERCISE SHALL PROMOTE ACCOUNTABILITY.
In exercising judicial authority, the courts shall be guided by the following principles:
(e) justice shall be administered without undue regard to procedural technicalities.
COMMENT: I contend that the 14 day limitation is a procedural technicality which should be applied and/or interpreted in the interests of justice, and more importantly in the promotion of public policy, transparency and accountability.
While clause (5) of Article 101 provides that the Constitutional Court shall hear an election petition filed in accordance with clause (4) within 14 days from the date of filing the petition, it does not state what happens if the 14 days lapse; it is silent on this serious issue. However it is my contention that Clause (6) provides the missing piece in this “14 days jigsaw puzzle” by providing:
Article 101 clause (6) The Constitutional Court may, after hearing an election petition (my emphasis AFTER HEARING AN ELECTION PETITION), –
a) declare the election of the presidential candidate valid;
b) nullify the election of the presidential candidate; or
c) disqualify the presidential candidate from being a candidate in the second ballot.
(7) A decision of the Constitutional Court made in accordance with clause (6) is final.
COMMENT: I contend that clause (6) has filled in the blank in clause (5) that the HEARING is followed by the DETERMINATION which culminates in the orders or declarations promulgated in clause (6). As I put it in my earlier article, WHERE THERE IS A RIGHT THERE IS A REMEDY (or relief). Simply put, judgement consists of HEARING the evidence including cross examination and legal arguments, followed by DETERMINATION including analysing the case presented by each side and finally followed by DELIVERY of the actual findings and/or judgement. I say that there is no such judgement on record of the Hichilema/Mwamba election petition as alleged by the Minister of Justice.
I conclude this “14 days” saga by questioning the justice and reasonableness of this technical impediment. The 14 days begins to run from the date of filing the petition. If the petition is filed, say on the seventh day, it means that the petitioner has already lost seven days of hearing time and remains with only seven days to present witnesses and prosecute the petition; but now take away Case Management days by the Court, what remains? – this is a very inconsiderate, provocative and dangerous joke, thanks to the sleeping MPs! I submit that the 14 days may actually have NOT expired, hence the need for a proper computation and verification of the 14 days. In this regard the case Godfrey Miyanda & Another v Attorney General, per Tamula Kakusa, J (High Court, May 5, 2005 unreported) may be instructive.
Lastly, I have ignored the ridiculous argument by the opposing bloggers that it is impractical to overturn an election petition in an “African setting”. Well then, throw into the dustbin President Lungu’s signed Constitution which provides for petitions and the nullification of elections; and so let the panga games thrive and continue to grow!
There is no conclusion to the Hichilema/Mwamba petition as alleged by the Honourable Minister of Justice. I challenge him and his “PF Government” to publish the application for the CC to review its Order of 2nd September 2016, adjourning the petition to 5th, 6th, 7th and 8th September 2016 for continued hearing. Obviously it cannot be the Petitioners who applied since they have gone to the High Court to challenge the purported decision of the CC.
I have no ulterior motive as alleged by some bloggers. I played my role as a responsible and patriotic citizen by directly advising President Edgar Chagwa Lungu in writing, in a timely manner, NOT to sign the Constitution with his eyes closed as he had promised to do; well he signed and the rest is history!
ONE OF MANY CONCERNED ZAMBIANS
[22ND APRIL 2017]