Green Party President Peter Sinkamba has said that the lawyers representing incarcerated United Party for National Development (UPND) Hakainde Hichilema should have avoided raising unnecessary preliminary issues to lessen his agony in Prison.
In a statement released to the media Mr Sinkamba said that his party agreed with Magistrate David Simusamba when he stated that in the past, a certificate signed by another person other than the DPP but signed in his or her name was accepted and the practice was established.
Below is the full statement
HH’S LAWAYERS SHOULD HAVE AVOIDED RAISING UNNECESSARY PRELIMINARY ISSUES TO LESSEN HIS AGONY IN PRISON
We agree with Magistrate David Simusamba when he stated that in the past, a certificate signed by another person other than the DPP but signed in his or her name was accepted and the practice was established. This observation is agreement with one key constitutional provision which Attorney General Likando Kalaluka relied on during the hearing of complaint by the Judicial Complaints Commission (JCC) where we the Greens pursued the removal of five Constitutional Court Judges from sitting on the Constitution Court bench for gross misconduct and incompetence was implied power provided for in Article 271. This Article provides that “a power given to a person or an authority to do or enforce the doing of an act, includes the necessary and ancillary powers to enable that person or authority to do or enforce the doing of the act.” The Attorney General explained that on account of this provision, any constitutional office bearer has power to delegate any one of his or her officers to act in his or her name to do or enforce an act. That is constitutional and therefore perfectly legal. Prima facie, this explanation may apply to the DPP as well, as noted by Magistrate Simusamba.
However, we do not agree with Magistrate Simusamba’s decision to refer the matter for judicial review to determine the validity of the DPP’s committal certificate on account that it was signed by someone else other than the DPP. We disagree with his ruling that the subordinate court has no jurisdiction to comment on the validity of the certificate, and that the committal certificate is the exclusive preserve of the High Court.
To the contrary, we believe Magistrate Simusamba had jurisdiction under 267(4) of the Constitution of Zambia to comment and rule on the validity of the certificate. According to Article 267(4), a court is not precluded from exercising jurisdiction in relation to a question as to whether a person, authority or institution has performed the function in accordance with the Constitution or other laws.
All in all, HH’s lawyers should have avoided pursuing preliminary issues to lessen his agony in prison unnecessarily. Already, over 45 days have lapsed in prison, and his lawyers are still pursuing preliminary issues. This is unnecessarily exacerbating his agony in prison. Instead of pursuing preliminary issues aggressively, it would have been desirable that the lawyers’ focus is placed on the main matter to commence.
Green Party of Zambia