Heritage Party leader Brigadier Godfrey Miyanda holds a note and pen during the meeting to demand for the release of the draft Zambia constitution
FILE: Heritage Party leader Brigadier Godfrey Miyanda holds a note and pen during the meeting to demand for the release of the draft Zambia constitution

RESPONSE TO BLOGGERS ON MY STATEMENT “MINISTER OF JUSTICE HAS LIED”!

[By Brig Gen Godfrey Miyanda – 22nd April 2017]

PREFACE

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.

CONTEXT

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.

THE CONTROVERSY

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:

  1. That the petitioners and their lawyers are to blame for their alleged failure to give evidence within 14 days;

  2. That the 14 days limitation in the Constitution is mandatory; and

  3. That it is not practical to nullify the election of a president in an African setting.

THE LAW

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.

  1. 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 –

  1. 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.

(3) ….

(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 –

  1. the person was NOT validly elected;

  2. 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!

  1. 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:

  1. 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.

  2. 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!

CONCLUSION

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!

GODFREY MIYANDA,

BRIGADIER GENERAL,

ONE OF MANY CONCERNED ZAMBIANS

[22ND APRIL 2017]

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104 COMMENTS

  1. You were once charged with treason – how did you survive? You need to share notes with HH on that one.

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    • HH will should never see freedom.

      As for Brig. I like him and respect him as a father. But Lord is he annoying with what he terms as substantiated facts.

      Thanks

      BB2014,2016

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    • Deport mushota

      Mushota should be deported from the uk. It is infecting people with STDs.

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    • The real question is the role of Judges in the ConCourt. Are they mere spectators of squabbling lawyers while they (the judges) keep an eye on the stopwatch or are they supposed to manage the court proceedings so that at the end of 14 days they can deliver a verdict? Since the judges treated the 14 days as casual, business as usual, starting court proceedings at 10:00, having extended lunch breaks and closing the sessions at 16:00, and never sitting during evenings and weekends, the 14 days was just a mere excuse for not delivering a verdict. The judges are a disgrace to themselves, their families and the nation. Justice has not been done.

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    • This Miyanda man has lost it. I lost respect for this man. How i regret wasting my vote on him in the 2001 elections.

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    • Gen. I now see reason you get misled & in process mislead others. 14 day period for hearing petition is not procedural technicality sir just as 7 day limitation period for filing petition is not. These are legal provisions in art 101 of Constitution & you’ve even cited them. Justice is not 1 sided or emotional but objective. If you miss either 7 days or 14 days then petition is illegal. If you recall I previously challenged your stance on BoR under the referendum. BoR attempted in art 36 to expand right to fair trial beyond criminal matters. Perhaps UPND could’ve used this. But most of you were too emotional & failed to see immense opportunity expanded BoR offered. Even then UPND was given every opportunity but failed to present any evidence during 14 days. Nothing could’ve been unfair…

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    • If you recall I previously challenged your stance on BoR under the referendum. BoR attempted in art 36 to expand right to fair trial beyond criminal matters. Perhaps UPND could’ve used this. But most of you were too emotional & failed to see immense opportunity expanded BoR offered. Even then UPND was given every opportunity but failed to present any evidence during 14 days. Nothing could’ve been unfair following lapse of 14 days. That’s the irresponsibility I always question by some of you who are always objecting even straightforward things or things that are good for the country. God help us to be sincere with ourselves & others who respect our opinions!

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    • If I had a choice of an unqualified lawyer like the general and Lungu. The General will be my choice. There is logic and substance as well as wisdom in his statements. The sentiment s echoed by the General are shared by many well meaning Zambians. No matter what Lungu does he will always be a suspect of illegitimacy and illegally acquiring power – trouble will follow him. The only way is to go defend his legitmacy in court and use no other means like police and his thugs/criminals at state house.

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    • @Chosen One – you miss the point of what is going on. Under Lungu, it does not matter what is in the Constitution. Lungu abuses the courts and the PFolice to twist the law to his needs. You can extend the BoR as much as you want and Lungu will not respect them. His own Constitution required hin to hand over the Presidency to the Speaker when a petition was raised. Did he do it?

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    • I SHALL NOT LABEL YOU AS AN ENEMY OF PROGRESS RATHER A PASSIVE LONER, YOU ARE NOT A TEAM PLAYER. THE BLAME ON THE SICK CLAUSE IN THE CONSTITUTION DOES NOT SPARE YOU. YOU ARE ZAMBIAN AND IF YOU SAW THIS EARLIER THEN DON’T BLAME THE MPs – YOU ARE AS GUILTY.
      ===============================================
      Wow! I am happy to hear that you recognize the fact that the 14 days ultimatum is a fraudulent piece of the LAW that blew in your face and that it is the basis on which the petition suffered an unrecoverable sucker punch. Yes you are right that there was no Judgement because the case was so filled with emotions and post-election trauma to be nailed in the prescribed time. Well, if the constitution does not provide on what happens after the 14 days lapses, you too are to blame if you saw…

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    • Cont’d
      … saw this earlier; adding Clause (6) to cement your argument is not helpful either in providing the missing piece in this “14 days jigsaw puzzle”. Why? Well, because you have said it yourself that there is no provision for assumptions, guesswork, technical gymnastics let alone Kangaroo Courts! Not even when it suits your attempt to sound intelligent. Not signing the Constitution was not the smartest ideas in the all wide world. You alone saw the problem, the rest of the Zambians had the draft and they did not read or interpret it the way you saw it “you are the chief editor you kept it to yourself”. Your approach to engaging the president might have been full of pride and mockery. You know how it is. Your article above says it all. Address your lone stance and everyone else…

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    • It was ethically correct for that petition to be thrown out. Going forward, do not be a stumbling block in denying that some provisions in the LAW of the land have to be amended to avoid, even prevent, issues like this again. Where do we go from here. Forget that petition, it had expired. If the 14 days is only 0.999% of the problem in the Constitution, then you can’t blame anyone. It is simple a task to modify. That means then that 99.001% of the LAW is okay. Thank ECL for the new Constitution. Learn to be thankful, that you can still sip that coffee in a peaceful land.

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    • I SHALL NOT LABEL YOU AS AN ENEMY OF PROGRESS RATHER A PASSIVE LONER, YOU ARE NOT A TEAM PLAYER. THE BLAME ON THE SICK CLAUSE IN THE CONSTITUTION DOES NOT SPARE YOU. YOU ARE ZAMBIAN AND IF YOU SAW THIS EARLIER THEN DON’T BLAME THE MPs – YOU ARE AS GUILTY.
      ===============================================
      Wow! I am happy to hear that you recognize the fact that the 14 days ultimatum is a fraudulent piece of the LAW that blew in your face and that it is the basis on which the petition suffered an unrecoverable suc.ker punch. Yes you are right that there was no Judgement because the case was so filled with emotions and post-election trauma to be nailed in the prescribed time. Well, if the constitution does not provide on what happens after the 14 days lapses, you too are to blame if you saw

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    • @Chosen One: That is as straight forward an explanation as it can be. There is no more that can be said which a right thinking person, including our ever misleading ret. general, can fail to comprehend. SPOT ON, BROTHER!!! @ Thorn: Nice advice for the ret. general, i really hope he heeds it as it might help advance his political ambitions which have clearly degenerated with time!

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    • B. General Miyanda is spot on , his arguments well founded on law and legal authorities. As first blogger sad that you have opted to be “useful *****” commenting on a judicial cause beyond your scope.

      The General has issued a challenge, hope Given Lubinda can cite the legal authority and judicial PRINCIPLES on which the concourt Judges anchored there behavior, or it’s a pure case of judges INCOMPETENCES

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    • Brig.Gen. Miyanda kindly address the following:
      Since the CC decision is not appealable, is it possible for the CC to set aside it’s own decision and hear the case? What are the implications of such a decision on the credibility of the court and the peace unity and stability of the nation at large?
      Since the CC verdict/orders are not appealable where will it get the authority to hear the petition as its the only court mandated by the constitution to hear presidential election petition ?
      The High Court is subordinate to the CC, and cannot oder the CC to hear the petition, what would happen if the High Court rules in favor of the petitioners?

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    • In Kaunda’s time, the courts were not full of jokers like it is now (despite abuses of citizen rights by the one party state). Judges believed in the law and Gen. Miyanda, to my knowledge, was acquitted. Sharing his experiences with HH, even if he wanted to, would not help much because the legal environments are very, very different. We now have a circus of a judiciary.

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    • Guns down everyone..! Give the ConCourt a break..!

      We all learn from mistakes. They’ll do better next time. Cases started coming in thick & fast before they even settled down.

      In the meantime, let’s also give them a document that they can interpret & enforce with confidence, understanding that it’s not their Job to write the Law, but just to interpret.

      Let’s also give them a chance to review their decision in case an error is made. They’re just as human as we are.

      So if a case is decided, a party should appeal within say 3 days, & the matter decided in finality within 7 days (that is in Presidential election, as we need govt to be in place quickly).

      Other cases can be given slightly more time, e.g. the issue of Ministers overstaying in govt. Which is another case…

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    • [email protected]: you people asked me or challenged me to cite local authorities; I have done that and you have failed to assail. Verdict: I have won the argument that is why you have unashamedly shifted goal posts; until you counter them with your authorities my arguments stand. I don’t usually comment on irrelevancies. If you want me to answer you stick to the topic as this is NOT a cross country race.

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    • Secondly: When a case can not be heard in a court of law due to time lapse, in my opinion, the status quo for the parties to that court case returns to their original state. The position that was existing before a court case is automatically returned by that particular party. Therefore since the case lapsed on time and that the CC could not hear that petition it means that the status quo as announced by the Electrol Commission remians: ECL declared the duly elected president of Zambia. There was nothing to HEAR as the time for hearing lapsed and therefore there is no Petition in CC. General, how can you miss that basic truth?

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  2. @ Munone

    Any comment on the subject? No? Why?
    To complicated for your pea-size brain to understand what is all about?
    Shame, as the leading “expert” in parroting Constitutional provisions, you fail well short of “processing capacity” to understand what Gen. is talking about.
    Instead of blabbing about “sharing notes with HH”, PLEASE can you for once forget your inbreed 1mbecility and contribute constructively.

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    • Please dont make me laugh Born Free. That whole squabble about election and petition was summed up in 14 days. If you cant see that then you are a law breaker and deserve to be behind bars.

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    • @ 1mbecile above

      If I do not agree with institutionalized 1mbecility , I am law breaker?
      So it be. Please arrest me for treason!!!
      Have guess, you cannot. Do you know why?
      Because RIGHT TO BE HEARD its UNIVERSAL RIGHT enshrined in the UN Chapter.
      And anybody who willfully breach that covenant may be taken either to ICC or in my case, to ICJ.
      Do you 1mbecile understand why difference between ICC and ICJ?

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    • Slow down Born Free, adding insults to your comments doesnt make it any meaningful or valid or better.
      Take deep breath an relax, take a cold shower.
      At this rate you may have heart attack, EL has just started ruling please give him and his government to show you what leadership means and not the text book defination the under five has been issuing.

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    • Do not patronize me young man.
      If you wish to be “ruled” by convicted embezzler, that is your choice.
      As to heart attack, that is Gods choice.
      Regarding leadership, well, as a born free I cannot accept to be “ruled” by convicted embezzler and a gang of thieving liars.
      As to “leadership”, I pity your ignorance. Leadership its gained by positive action and not by systematic breaches of ten commandments.
      You carry-on worshiping your anointed, visionary, humble and thieving “leader” and I will worship Him.

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  3. Brig General Miyanda,
    I salute you , on behalf of the silent majority, who do not participate in these debates which most of the time , are dominated by persons diametrically opposed to the public interest. What is the public interest? It is described in part by the clause you have ably referred to: JUSTICE, ACCOUNTABILITY, TRANSPARENCY and CREDIBLE COURT PROCESS. In the absence of which “let the panga games begin!”

    Hapooma Bolio

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  4. RECORDED HISTORY

    On October 18, 2012, GBM said:
    DEFENCE minister and businessman Geoffrey Bwalya Mwamba says he was forced to go into active politics in order to successfully operate his businesses that were becoming difficult to run.[END QUOTE]

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  5. Thanks Gen,and for all their glamour the bloggers have gone to sleep.
    Clearly unable to contend what you have spelt out. It is good you take note and respond to Bloggers.
    Thanks again for correcting the impressions wrong or right by some bloggers.
    So remains the question……when will CC hear and determine the petition?

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    • The CC already concluded the petition…Get it in your head…It has no constitution mandate to hear the petition beyond the 14 days…its a done deal…HH and team lost on a technicality even if there was no hearing…the Gen is misleading you all…What I hear him argue about is on WHAT SHOULD HAVE BEEN not HOW IT WILL BE…sorry.

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    • The ConCourt judges failed to manage the court proceedings. It is the equivalent of a football referee who concentrated on his stopwatch and disregarded the players who kept on kicking the ball out of play all the time or the keeper who held onto the ball for dozens of minutes in an apparent attempt to disrupt or delay play. If in football the referee would redcard such players, how come the ConCourt judges failed to control proceedings to enable them reach a verdict within whatever 14 days they chose to limit proceedings? Is the ConCourt proceedings more stoopid than a game of football? (Admission: I believe football is a pointless and useless sport!)

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    • @pompa umona …if the CC has no mandate beyond the 14 days….where did they get the mandate from to overturn their ruling and latter throwing out the petition. If anything Generals article is prove that actually their was no ruling and hence the case still stands in the CC court! And should justice suffer because of a statement in the constitution we made? If Judges were well meaning they would have stood their ground and went ahead to conclusively here the matter as it bordered on the Peace and the security of the nation! Its unfortunate our judges I think they were serving themselves rather than the nation.
      The CC did not conclude the matter if they did what was their conclusion on the matter?

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  6. @Brg Miyanda, yours is a better break down on areas of contention than that of the legal team HH/ Mwamba took which clearly lacked consistency and substance in their arguments- the issue being the 14 days! Whether 14 days had passed or not-I think the other matter one must consider is the logic and preparedness of the plaintiff’s team- if one knows it takes 5 hours say for concrete to set and you only have one hour left in the work day to complete the task of building on top of that concrete then its obvious you won’t make the day’s time limit. Same applies with this matter- HH’s team’s time wasting tactics were meant to frustrate the court to pass its ruling as a result of their unpreparedness.

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    • If that 5 hours time we have left is for concrete for the foundations of our country and we find our self short of 5 hours are we going to continue building the faulty foundations of the country ?

      It seems lungu would rather be called a theif than address people who suspect he stole the elections.

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  7. When the wise don’t speak, the number of f00ls multiplies! Thanks General for your usual wise counsel! It’s just that Zambians don’t know what is good for them! They are easily cheated and will always make wrong choices because they are easily enticed with political gifts and will easily throw away their moral standard for a few pieces of silver. Those potholes KK made in their minds will be difficult to mend! Maybe KK was right to conclude that Zambia is full of nothing but stup!d !d!ots!

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    • Let’s talk about what it is and not what it should have been. 14 days is what it is. The right to be heard is what it should have been. How do Judges make their ruling? On what it should have been or what it is? As beautiful as Generals analysis seems, time lapsed and UPND status returned to their original state: lost the election and no petition. Whether they should be heard is a discussion for another day and that would need another petition to be filed in county.
      The original petition lapsed and it’s non existent. I think that is how things are at the moment in my opinion. So no matter how well General analyses his Law antics, there is no petition in court: it lapsed.

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  8. Well this is a good effort from a self learnt lawyer. I also seem yo agree that the 14 days limitations is an impendment to justice. I have a problem however on when the counting begins. It should begin from the day the petition is lodged with the CC.

    I don’t agree that CC could have ignored the procedural requirement in this case. Its important to reflect on the intentions of limiting the number of days for hearing a presidential petition. I think its for the common good that presidential petitions and timely heard and disposed off. There is also another law I am not able to cite which states that where the period for a hearing a case is specofied, the courts can’t adjust it. So the intentions are very clear, there is need for a time limit in hearing presidential petitions but as…

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    • The real point is regardless of when the counting of days started, the judges should have dealt with the matter with the urgency and skill the matter required. Instead they dealt with the matter casually, starting late, having long lunch breaks and closing early. They did not work late nor over the weekends and only panicked on the last Friday when they sat in the evening. The judges behaved in typical filaisova chaotic Bemba style without worrying about the consequences.

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    • [email protected] Mathias at 8.09 am: Please point out from my article what you r actually disputing and thus help and enrich the debate. I was challenged to cite the local authorities and I have done that. I have quoted verbatim our so-called new Constitution. To assist your further response take note of the following: 1. Clause (5) of Article 27 above states that CC shall hear the petition within 14 days of the filing of the petition, hence counting starts form date of filing. 2. By ‘dispose of petition’ you mean conclude. Clause (6) directs CC that AFTER HEARING, they must make the declarations indicated. 3. Who applied to reverse their order of 2nd September?

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    • @Godfrey Miyanda, the court cannot pass a verdict on the matter that it did not have an opportunity to hear. The 14 days elapse before the petition was presented. Therefore the CC did not “hear” anything. In short the CC could not “comment” on something it did not “hear” Even you General you can not comment on matters that you have not heard – Unless you a god!!!

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    • 10.3″Kanshi Cabashani?: You seem lost and need help. I did not say the CC should “comment” I said they should have HEARD AND DETERMINED the petition and announced their findings on the declaration by the Returning Officer, whose declaration has been challenged. These are legal terms. If you do not understand just ask as in “please njebeniko mwebantu”.

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  9. @munone.. general is correct the petition was not heard. Nothing to do with his performance in politics. Use you brain next time if you have one to comment on topic at hand.

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    • @ Fred what you are saying the 14 days period in the constitution means nothing to you? Come on you can reason better than that. You can’t ywist the law to suit you. That petition is waste of time, how many times has he been losing, whats so different from the last loss?

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    • The ConCourt judges themselves did not know when the 14 days expired. That is why on the last Friday of the hearing they worked up to midnight (for the first time in the petition) and then the following Monday they took a vote and decided that the 14 days was over and they could not deliver the verdict. If the judges understood what the 14 days were, would they have deliberated responsibly and worked late every day and over the weekends to ensure that the verdict could have been delivered in time? Clearly the judges were incompetent and/or dishonest in their behaviour.

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    • You cry like babies you guys. 14 is 14 and not forever, what language do you speak? thats the problem of thinking in local language and speaking in foreign language, you confuse yourselves.

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  10. Thanks General for your useful explanation. Those who have ears have heard u. Its very clear that CC miserably failed to Hear the Petition and without Hearing the Petition it could not determine the case and then issue its final declaration. The Petition is very much alive and awaiting Hearing in Court. The mishandling of the Presidential Petition has brought Zambia to the brink of a Civil War. In a normal Constitutional Democracy these Concourt Judges would be charged with Treason for causing heightened Tension,disharmony and Political instability in Zambia. The Disputed and Petitioned 2016 Election is haunting Zambia and ECZ and Concourt are the main culprits for the state of affairs in Zambia today.

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  11. …this is a waste of bandwidth…yaba…must’ve clicked on this by mistake…esc…esc…

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    • Little bandwidth in your head. Cannot deal with anything more complicated than slogans.

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  12. The truth of the matter is that the case was NOT heard and that is all the General is saying. so all of you trying to twist his statement are not being fair to my neighbor. That is the fact that the case was not heard. we saw how the courts wanted to go on leave on a Monday so that the opposition couldn’t submit their case, they had to so a few minutes before 17 hours on a Friday. all those were signs that the case wouldn’t receive a fair hearing.

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  13. The best a lawyer can do when he realise that another person has a valid point is to oblige to the facts. The General(Miyanda) has a point in law.
    Currently , the government is reported to fine tune the constitution to address lacunas in the Amended Constitution.
    Fine tuning is nowhere in law and I don’t what the government mean by fine tuning.
    May we do the best for our country and cease to serve our own interest…
    Had our leaders meant well and enacted good laws immediately we got independence, we could have been a shining examples to the world.
    But alas, patronage has been the order of the day to this day… Just look at the comments from some bloggers….. very shameful, tribal, deriding, and backward….

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  14. With or without court rulling, a nation must have a president. the opposition need to guide the citizens where the won the elections, otherwise it appears having won in southern,westen and north westen then they must rule-no ways mulekwatako insoni.

    kafunya

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    • @Kafunya, if 3.5 provinces gave enough votes to HH such that Lungu had to rig and merely win by 13,000 votes, then what was the real number of votes for HH in the 6.5 provinces that could not give Lungu a clear majority? Lungu had to rig despite blowing $9.2 billion on fake projects, what does that say about his so-called win?

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    • Ba JKM, it S not the number of provinces that determines the winner but it is the number of people country-wide who vote for a particular presidential candidate that counts! Please understand the rules that govern Zambian presidential elections before you comment.

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  15. Brig. General Miyanda… Great analysis and strong arguments. But what do you suggest should be next course of action given the CC door and indeed the legal route is blocked?

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    • An international court with proper judges. Not the corrupt carders we have as judges and useless chief justice. Who should have prohibited all legal offices from swearing in anyone until all issues were amicably resolved to the statisfication of all parties. Now you have a president haunted by the truth and trying to prove his legitmacy through violent means and not through the court

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    • [email protected] DePal: Appropriate question. I have some thoughts but not for this column. Anyway my view is CC door is NOT closed as the matter is alive in the High Court. An impartial judge would find that they have not been heard, which is a breach of the right to be heard. Where there is a right there is a remedy; and the remedy is to be heard and for the CC to pronounce their endorsement of the Returning Officer’s declaration of result or overturning it, i.e. a) declare election of President-elect Lungu valid; b) nullify his election; or c) disqualify a presidential candidate from the second ballot. There are NO OTHER RELIEFS in an election petition!

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  16. This is the danger this country is in. It is a pity that even the so called justice minister seems not to know when the case should be deemed to have reached conclusion that satisfies both parties, the complainant and the defendant. Worse for the zealots who do not pay attention to details. General, your article is well articulated and this is exactly what some of us have been asking ourselves if ever that case came to a logical conclusion. This is to say; were the elections upheld as validly conducted, who was declared winner? Your explanation can only be appreciated by those with neutral standing and not those who are partisan, unfortunately. What is more disappointing is that even the clergy who are supposed to give spiritual guidance has taken sides and has been blinded by money.

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  17. Thanks Miyanda, you are now lecturing me. Message is clear hope govt officials will swallow their pride and listen. They are treating their friends unfairly. What goes around, comes around.

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  18. I agree with everything else General Miyanda expressed except this statement: “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…”. The General appears to have confused himself on “day of declaration of winner” and “day of filing of petition”. Even if petition is filed 7 days after declaration of winner, the number of days for hearing of petition remain 14, and not 7 as the General is suggesting. The 14 day period does not start running from day of declaration of winner but day of filling of petition.

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    • [email protected] Zambia in the Sun: I an not confused. See here from the Constitution –
      1. Article 47 (4) “A person may within seven days of the declaration made under clause (2) petition the CC to nullify the election of a presidential candidate who took part in the initial ballot…”
      2. Article 47 (5) The CC SHALL HEAR an election petition filed in accordance with clause (4) WITHIN 14 DAYS OF THE FILING OF THE PETITION i.e. starting to count from the date of filing. You have agreed with me yourself in your last sentence!

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  19. The objective of Concourt in a Presidential Petition is to hear the Petition,determine it and after weighing the evidence given by the Respondents and Petitioners arrive at a Judgment declaring the Election Winner Duly Elected as President of Zambia. The onus is on Concourt to arrive at a Verdict at the end of a Petition Hearing Process. Its not for the Petitioners and Respondents to guide the Court Petition Hearing process. It is Concourt’s duty to guide the Hearing and deliver a Final Judgment. CC did not do this so the Petition remains to be heard. Without a CC declariation the Inauguration is Null and Void. So Zambia has no Legitimate President at State House today and at Law. The Petition once properly lodged and accepted by Concourt it Nullifies the ECZ declaration of the the…

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    • Your explanation is what a normal human being would understand. Not what those ConCourt monkeys did.

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    • What can one expect of ConCourt judges who in actual fact do not meet the qualifications laid down for one to be appointed judge of the ConCourt!

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  20. Mr Miyanda aren’t you being intellectually dishonest by ending your scripted piece with “Brigadier General Miyanda” instead of being truthful with “Retired Brigadier Gen Miyanda” ??????

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  21. IFIMA ARTICLE FYABA MIYANDA FILOMFWISHO BUNAN’GANI. THE ONLY PEOPLE WHO CAN READ THEM ARE THOSE WHO HAVE NOTHING ELSE TO DO APART FROM B LOGGING.

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  22. Excellent article General Miyanda – as always! Truth always overcomes falsehoods, deceits and lies all the time. It was wishful thinking by the PF govt that this matter of the petition will die a natural death, not a chance!

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  23. General, be consistent. It’s not that when you are a leader of a political party(president) then that is when you can deliver. We in UPND have always admired your intelligence and right now we don’t know the condition of HH. Please join us, I see you been president one day. But we need your consistency. God bless you Sir.

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    • Am General Miyanda’s strongest admirer, but on the issue of time limit he has lost my faith in him. The country at no anytime must be kept in the dark for too long. In fact we must remove the 14 days thing from the constitution. The President must be take oath of office immediately the electoral commission announces the winner. We just need peace in our country. I was in Zambia the 14 days period the situation was tense. Some houses who have intermarried where not talking to each other.

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    • [email protected]: yours is NOT a legal argument. I was asked to cite legal provisions and I have done so. Comment on my citations. My posting at 21.1 @Godfrey Miyanda above will be instructive.

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  24. The General is spot on. The Petition was not heard by CC and should be heard by an impartial Court. A Right has a Remedy. Lungu does not want to Hear the Petition in Court becoz he did not win the 2016 Election Democratically, Legally and Constitutionally. To avoid Hearing the Petition in Court Lungu has resolved to kill the Petition by imprisoning or killing the Petitioners and destroying their Party UPND. By arresting and charging HH for Treason Charges Lungu is stopping the Petitioners to take their Petition to ICJ. Lungu knows that at ICJ he will be convicted of Election Fraud and possibly Treason for refusing to handover power to the Speaker of Parliament during the Petition Hearing. For these reasons Lungu has been strenuously blocking the Petition Hearing in Zambian Courts as well…

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  25. Well articulated General.Let those who have ears hear.Please General do not dwell so much on some bloggers who always want to twist facts for their personal goals.I admire you candour

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  26. Key to all this is “Buck Teeth Lungu’s ” statement. The CC were partly,if not, wholly to blame because of their inability to take control of the process. They should have given guidance as to how the petition was to proceed. There was no status conference to ascertain period for raising preliminary issues; arguments; etc. They completely botched it through their incompetence/inexperience. As John Sangwa SC stated you can’t recruit judges as though you are recruiting security guards ( no disrespect intended).
    Well written article as always Brigadier (Rtd)Miyanda.

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    • @Mwape – thanks for the support. The issue is not about 14 days but how the judges managed the process. The way they were incompetent and/or biased, even if they were given 90 days or 5 years, they would never have delivered a verdict. The Supreme Court has court cases that they received over 15 years ago and cannot make a ruling due to incompetence and vested interests.

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  27. General Miyanda has the rare ability of explaining complex legal issues simply. I always emerge educated after reading his articles especially on legal matters. What is clear is that the CC didn’t hear the petition and pronounce Lungu the legitmate president. Lungu therefore remains an illegal impostor in state house, a fraud. Incarcerating HH in prison doesn’t remove the fact Lungu’s presidency is a product of fraudulent practices.

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    • POINT OF CORRECTION
      ==============
      The duly elected president can only be pronounced Winner or Legitmate by the Returning Officer. The ConCourt hears the petition and sends you back for a rerun if the evidence which your leader failed to furnish the it, is overwhelming or if it proves beyond reasonable doubt that the election overseen by EU, SADC etc were marred with irregularities. They did not hear the ill-conceived petition because it fell off and failed to take off due to wild emotions, lack of evidence and the limitation of time. So the petition is as good as not having been registered. Observe time!

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    • 32.1 @Thorn: It is NOT correct that the “duly elected president can only be pronounced winner or legitimate by the Returning Officer”. This may be so if the RO’s declaration is NOT challenged but it was challengd by the filing of the petition in the CC. Once there is a challenge of the result the CC must validate the election of the president-elect or avoid it. This is the main thrust of my argument, that the CC did not pronounce the election of President-elect Lungu after hearing the petition because they did not hear the petition as they are obliged in terms of Article 47 (4), (5) and (6). See also [email protected] Miyanda above.

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  28. Miyanda writes ‘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.’

    In your view Sir, how long should be given for a petition to be heard? Forever? In the past there was no limitation and the ‘elected’ president will be in office. It became academic. The new constitution does not allow the elected president to takeover, until the case has been disposed off within 14 days.

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    • [email protected]: The hearing should be within 14 days, followed by determining the evidence given by both sides then concluding the dispute by granting the reliefs provided under Article 47 (6), namely,
      a) declare the election of President-elect Lungu valid;
      b) nullify the election of President-elect Lungu; or
      c) disqualify the presidential candidate from being a candidate in the second ballot.
      CC did NOT make any pronouncement as above. Of course because they did not hear and determine petition as per clauses (4), (5) and (6)! See also [email protected] Miyanda above.

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  29. 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:

    BA GENERAL THE WHOLE ESSENCE OF SPECIFYING TIME LIMIT IS TO ENSURE THERE IS NO LEADERSHIP VACUUM AS A RESULT OF PRESIDENTIAL PETITIONS DRAGGING ON FOR TOO…

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    • [email protected] SHULA: You have not cited any provision. You people challenged me to cite the law; I have done so. So in fairness provide your counter citations to support your “vacuum” argument. With the Speaker clause (which I do not agreed with but which the CC has endorsed in another petition) in the Constitution there is NO VACUUM. I have also contended that the 14 days did not lapse if we count weekends. See also [email protected] Miyanda above.

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  30. I think Brig. Gen Miyanda has just exercised his right to be heard and I have heard him well.

    However, even if I am no lawyer, I fully understand that his underlining statement is that the constitution is faulty. I can clearly see that he is either biased or he is confused himself. On one end he says the petitioners where not heard, then he says the 14 days is just a procedural provision and not an important aspect of that law, again he says he told ECL not sign the constitution.

    Also, surprisingly, he says the CC must have driven the proceedings and not the parties to the case! What kind of reasoning is this? You bring a case to court without evidence and then you go to sleep and want the judges to wake you up? This is not sound thinking for a military strategist! So…

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  31. So General, you mean that the court should have told the petitioners to stop submitting preliminaries “because there is not enough time?” The same petitioners would have turned around and said “the CC is unfair, they are refusing our submissions.”

    The General also says that if the petition was filed on the 7th day then the petitioners would have lost 7 days. That is not true, Sir. The constitution court is mandated to hear and dispose the case of within 14 days after submission. How did you come up with this faulty premise?

    Also the argument that the constitution does not say what happens after the lapse of 14 days. In any case in law that means that the case cant be continued. However, had the petitioners submitted any any evidence then the CC would have made a judgement…

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  32. Cont..
    Also the argument that the constitution does not say what happens after the lapse of 14 days. In any case in law that means that the case cant be continued. However, had the petitioners submitted any any evidence then the CC would have made a judgement based on the evidence but in this case the petitioners did not submit any evidence at all. Perhaps they had none!

    What I however agree with the Gen is that the 14 days are not enough and that there should be a way of dealing with the untimely lapse of the 14 days. That will only come in an amended constitution but this petition is now water under the bridge and there is no provision to bring it back and no one can do anything about it. And moreover he is not fair, or brave, enough to point out that it was the fault of the…

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  33. cont…
    What I however agree with the Gen is that the 14 days are not enough and that there should be a way of dealing with the untimely lapse of the 14 days. That will only come in an amended constitution but this petition is now water under the bridge and there is no provision to bring it back and no one can do anything about it. And moreover he is not fair, or brave, enough to point out that it was the fault of the petitioners by wasting time on useless preliminaries. perhaps they had no real evidence to submit!

    And one weakness I have seen in the general’s behavior is that he is always biased. There have been so many atrocities committed by UPND and HH and he is always conveniently very silent and never condemns them. His mind only knows how to criticise PF wrongs. If at all he…

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  34. cont…
    If at all he is the good leader he is trying make us believe he is then he should put record straight and counsel whoever is wrong and not to side with UPND only.

    The rest of his arguments are both frivolous and pedantic. To me the only way forward is to push for amendments. As for the right to be heard claim, I am afraid that there is no need for any one to ask for impossibilities, because no one on earth has any power to to get this case back to CC.

    Lets respect our laws and not make fun of them or try to arm twist our way but rather propose amendments for a better Zambia.

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  35. YES I agree that the case was not heard

    BUT WHOSE FAULT WAS IT?
    YOU COME TO COURT WITH NO EVIDENCE AND YOU JUST “LAMBWAZA” DAY IN and DAY OUT AND WHEN YOUR TIME LAPSES YOU CRY THAT YOU WERE NOT HEARD?

    This is a pure case of not putting priorities right in your strategy.
    And I cant understand that A BRIGADIER GENERAL CAN’T COMPREHEND SUCH A SIMPLE THING! General Miyanda you are now making me doubt the calibre of people in our military, how someone can rise to your rank and still not understand simple a matter like Time limit.

    That is both unfair and immature behaviour.

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    • @ 40. Do not doubt general Miyandas military credentials they are very genuine. But am wondering how he is prepared to compromise the security of Zambia at the expense of GBM. Surely even if you are a champion of democracy, GBM is the last person I would love to become a President of my country Zambia. When HH picked him he lost five votes in my house. Yes, UPND has very good pro-poor policies, but honestly GBM would have made the country slide to its lowest levels. Concluded I was better off with Lungu than GBM.

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    • [email protected]: I believe you are the same who has posted @35, 36, 37, 38 and 39. I was trying to steer through the maze of your thoughts but could not make end or tail of them due to incoherence. However, and finally, in your own [email protected] you have summarised very coherently by stating thus “YES I AGREE THAT THE CASE WAS NOT HEARD”. EUREKA – I expect an impartial High Court to hold the same. Thank you @Hachintu///

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    • Gen. Miyanda knows and cares about important national issues, unlike you who wastes bundles commenting on things you hardly understand.

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  36. What General Miyanda is doing is simply navigating most of you emotionally engaged sceptical anarchists through the Constitutional and judicial process as pertains to electoral disputes and resolution. Really it is incumbent upon invested parties to understand the law. That the general can gladly share the basic understanding and interpretation of the law is a bonus not a trigger to vitriol and ridicule. Mushota in particular you liar, you never spit at your respected father. One little advice to the General, dont overwhelm the illiterate with legal depth and jargon.

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    • [email protected]: advice noted. However I write in order to exchange views and learn from others as I am open-minded. Legal jargon was a result of what I took to be a serious challenge to make citations, especially by @The Chosen One, who has disappointed me by not himself making counter citations but has shifted his debate to the irrelevant topic on the Referendum! You may have noticed that I do not respond or comment on irrelevant postings or insults. In fact I take insults to be a strategy to discourage me; but actually the harder they come the more I am convinced that I have rattled the hornets nest and hit the nail on the head; so Aluta Continua. But thanx for advice///

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  37. The problem with General Miyanda is the attitude of siding with the UPND. General there is trillion literature on cases at law being invalid based on time technicality. General you having risen to the rank of general knows the security of a nation is paramount than that of individuals. So you wanted the country to have no leader in perpetuity only to satisfy the wishes of UPND and not the country at large. In boxing, you only beat a champion when you technically knock him out which UPND did not do. You cannot get votes from three regions and hope to ascend to the presidency. I have analyzed Zambia’s political landscape, no president ever became one with votes from three provinces. If ever that will happen for someone to ascend to the presidency with votes from three regions will be the…

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    • [email protected]: 1. In debates such as the one here I do NOT take sides; I discuss principles. If you accuse me you go out of topic and I lose interest. We are NOT voting here.
      2. In your second sentence you have begun well by discussing A PRINCIPLE on time computation and this interests me. Pse re-read my article above and refer to the case Godfrey Miyanda v Attorney General cited therein. 3.’Regional votes’ – there is no block voting in Zambia. Besides the evidence has NOT been tendered nor authenticated by the CC. 3. I agree in boxing to beat a the Champion you have to knock him out. But in this case the boxers are still in the Dressing Room!

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  38. It should be reopened and may take 6 years to hear…..will b determined in 2027,,,,it’s okay Ftj case took 20 years and he was not heard properly. The Gen is not smart, not streetwise no wonder he was dribbled by late Ftj and cobra….Lungu. Ni. Mwamuna ngao ngao!.go ask mwaliteta,membe or ka hh. Gbm has run away ku India..Chagwa for life

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    • [email protected] wa mpezeni Bayete Nkosi! Thanx for visiting though you have said nothing at all.

      BYE BYE. I am outta here now. Thank you all who have participated for and against. See you in the next debate. Godfrey Miyanda, Brigadier General///

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