By Peter Sinkamba
A lot has been said from various corners on President Edgar Lungu’s comments regarding the Constitutional Court and his eligibility to contest the 2021 elections. I will not dwell on the aspect of his eligibility as that is the preserve of the Court lest I am cited for contempt for commenting on a matter that is active before the Court. Nor will I dwell on the aspect of whether or not what President Lungu said contravened the doctrine of separation of powers vis-à-vis judicial independence. A lot has been said about this from various stakeholders.
The least discussed but quite important is his criticism of the court system in Kenya. Though President Lungu did not specifically mention a particular Court of Kenya by name, I strongly believe he was making reference to the Supreme Court, and in particular with regard to the decision that Court made to nullify the election of Kenyatta and Ruto on 20 September, 2017.
For the record, below are President Lungu’s comments:
“But to my friends in the court system, I say don’t plunge us into chaos by imitating or emulating Kenya or any other court system for that matter which does not care for the interests of the people. I am saying this in front of you people because there are cameras in front of me, there are some Zambians who are writing this story, recording, because I have heard some judges say ‘why don’t we emulate the Kenyan courts? They are very brave’ I don’t think that is right. We should preserve peace, we should listen to the voice of the people, we should listen to the will of the people in the Constitution. Whether I am eligible to stand or not in 2021 should not be dependent on the case in Kenya.”
For the benefit of majority who did not have sight of the Kenya Supreme Court Judgment, below are some of the pertinent excerpts of the Judgment in relation to listening to the will of the people in the Constitution:
 In the 2013 Raila Odinga case, this Court stated that “it should not be for the court to determine who comes to occupy the Presidential office; save that this court, as the ultimate judicial forum, is entrusted under the Supreme Court Act, 2011 (Act No.7 of 2011) with the obligation to assert the supremacy of the Constitution and the sovereignty of the people of Kenya” [S.3(a)] must safeguard the electoral process and ensure that individuals accede to power in the presidential office, only in compliance with the law regarding elections.”
“We reiterate those words in this petition and for as long as the Constitution of Kenya has the provisions granting this Court the mandate to overturn a presidential election in appropriate circumstances, it will do so because the people of Kenya in the preamble to the Constitution adopted, enacted and gave unto themselves the Constitution for themselves and future generations.”
 It is also our view that the greatness of a nation lies not in the might of its armies important as that is, not in the largeness of its economy, important as that is also. The greatness of a nation lies in its fidelity to the Constitution and strict adherence to the rule of law, and above all, the fear of God. The Rule of law ensures that society is governed on the basis of rules and not the might of force. It provides a framework for orderly and objective relationships between citizens in a country. In the Kenyan context, this is underpinned by the Constitution.
 What of the argument that this Court should not subvert the will of the people? This Court is one of those to whom that sovereign power has been delegated under Article 1(3)(c) of the same Constitution. All its powers including that of invalidating a presidential election is not self-given, nor forcefully taken, but is donated by the people of Kenya. To dishonestly exercise that delegated power and to close our eyes to constitutional violations would be a dereliction of duty and we refuse to accept the invitation to do so however popular the invitation may seem.
Therefore, however burdensome, let the majesty of the Constitution reverberate across the lengths and breadths of our motherland; let it bubble from our rivers and oceans; let it boomerang from our hills and mountains; let it serenade our households from the trees; let it sprout from our institutions of learning; let it toll from our sanctums of prayer; and to those, who bear the responsibility of leadership, let it be a constant irritant..”
DATED and DELIVERED at NAIROBI this 20th Day of September 2017.
Fellow Zambians, my question is: what, from the above pronouncements of the Supreme Court of Kenya is not worth emulating here in Zambia?
What is unconstitutional about the pronouncements?
Please help me understand this!