President Edgar Lungu take Photo with Constitutional Court President and Judges (2nr) Constitutional Court President justice Hildah Chibomba, (r) Constitutional Court Judge Justice Mulenga Mugeni, (from left) Constitutional Court Judge Justice Mwewe Anne Sitali (l) Constitutional Court Judge Justice Enock Mulembe, and Constitutional Court Judge Palan Mulonda shortly after swearing in Ceremony of Constitutional Court Judges at State House
President Edgar Lungu take Photo with Constitutional Court President and Judges (2nr) Constitutional Court President justice Hildah Chibomba, (r) Constitutional Court Judge Justice Mulenga Mugeni, (from left) Constitutional Court Judge Justice Mwewe Anne Sitali (l) Constitutional Court Judge Justice Enock Mulembe, and Constitutional Court Judge Palan Mulonda shortly after swearing in Ceremony of Constitutional Court Judges at State House

By Peter Sinkamba

Whilst we applaud the decision of Constitutional Court to maintain that the 64 ministers who illegally stayed on in office after the dissolution of Parliament in 2016 must pay back the money they received during the period they illegally occupied their positions, we believe that the Court lost a grand opportunity to pronounce itself on the core issue that matters the most with regard to the court’s operations: the question of court’s jurisdiction to review decisions of the Full Bench.

One of the most fundamental question of law that confronts court systems is whether a given court has jurisdiction to preside over a given case. A jurisdictional question is broken down into three components:

1. Whether the court has jurisdiction to even hear the case involving the particular defendant(s)

2. Whether the court has jurisdiction to render the particular judgment sought

3.Whether the court has jurisdiction over the subject matter

With regard to the first jurisdictional question, the Concourt, in the case at hand demonstrated it had jurisdiction to hear the particular defendants (i.e. the former ministers), except that the Attorney General was a wrong party. As the Court rightly held, it is against public interest for the Attorney General to represent private persons.

With respect to the second jurisdictional question, the court also demonstrated that it had jurisdiction to render a particular judgment sought. In the case at hand, the Court upheld its earlier decision.

However, concerning the third jurisdictional question, crux of the matter was whether the Concourt has jurisdiction to re-open and re-hear decisions of the Full Bench.

In our view, this is where the court lost it. The court failed to pronounce itself on whether it has jurisdiction to re-open and review judgments of the Full Bench.

In our view, failure on this fundamental question has serious long-term implications on the court’s future operations.

For example, with regard to the Ministers’ case, the consequence is that the former ministers can now still go back to the same court, may be individually this time, and flood the court with 64 claims, seeking to be heard, on the same reliefs. So, consequent to the Ruling, we should expect a floodgate of cases. It is therefore unlikely that most of the former ministers will pay back any time soon. If it has taken one year to conclude one application, what more the 64 individual claims? After all, with the biting economy, everyone is looking a every opportunity available not to pay. In this case, the court has created an opportunity to delay the repayments.

Furthermore, all other litigants who have lost, or will lose cases, still have a second chance to go back and seek re-opening and review of their cases. The question is: how many cases go to this court? Considering the court’s serious staffing deficit, will it really cope with the open Kariba Dam floodgates?

Put simply, the ‘partial’ decision on the jurisdictional questions has unnecessarily opened floodgates. So we should expect loads and loads of cases where claimants will be seeking re-opening and review of cases. Mind you, this is the court of final jurisdiction, but without human rights jurisdiction.

With this decision ‘done and dusted’, tighten your belts as we take off on a bumpy long-haul flight! Both the headwinds and tailwinds appear to be too strong!

[Read 52 times, 1 reads today]
Loading...

19 COMMENTS

    • The ConCourt is just a bunch of an incompetent lot. John Sangwa wrote an expose on all the judges at this court and non of them qualify. In the USA, when Trump imposed a travel ban, the courts were able to make a determination in days!

      6

      1
    • Yesterday, it was some stu.pi.d minister from Southern Province, today its st.up.id concourt judges exposing themselves.
      OMG!!! Where is this country leading to? Yet these were supposed to be elite of what we have.

      THIS SHOWS WHY EVEN PEOPLE HERE CAN NOT DEBATE TO ISSUES, many here are just useless. Surely, you will soon see how the comments will diverge from this topic to UPND. There will be such I.D.IOTS shortly.

      3

      0
    • Kenyan Judiciary did not just wake up overnight and become independent …its taken years and years of debates and amendments to governance issues. Instead the main opposition party crying about petitions they should be looking for ways to even the playing field but as usual they are forever distracted by selfish interest.

      3

      0
  1. What else can you expect from a bunch of legal non-comps without any substantial background in Constitutional Law?

    3

    0
  2. This court is creating more problems than it is resolving. Its relevance seems to be there alright but then its effectiveness is big issue. The problem therefore, must be with the competency of the individuals who constitute this court.

    5

    0
  3. If the bantustans only presented one petition like the overstaying of ministers in office they could’ve won the petition than clouding the court with a million of bull sheet in preliminaries and expect the court to make a ruling. What a miss by these retards and there online supporters.

    Dobo man keep hammering and displace these tribal elements from our political landscape. There seats will be nullified soon and make sure you grab one or two for your party. Have some representations in parliament so you can out smart these banch of tribalists.

    2

    3
  4. This dobo guy is more intelligent and analytical than the combined heads of hakainde, kambwili, kabimba, milupi and Nevers. Just compare his contributions to national debates with those from ‘Mr Right to be heard’

    1

    1
    • He too missed the point. The former ministers did not cling on to their offices, Chagwa kept them there. Chagwa signed their time card. Chagwa was the one who retained them against the provisions of the law.. Chagwa violated the constitution.

      Therefore, it is Chagwa who must pay.

      2

      0
  5. Well done Sinkamba!!

    No tribalism with you! True patriot and son of our soul!

    Can you brain storm and find your way in parliament, you are such calibrate we need. I’ll look you up when next am in Zed.

    2

    0
  6. ….Kiki They were not appointed but seconded to parliament for ratification. The house including the bantustans mps unanimously voted for them after they observed that some were tongas. Stop crying spaka because the judges are doing a great job. Ministers including ck are going to pay back the money. I thought that’s what you wanted.

    1

    1
    • We all know that that judgment which was illigal in the time it took, is just a sweetener for the pending 3rd term bid……..

      2

      0
  7. Concourt must ensure Edgar Lungu pays all the monies he authorised to ministers after dissolution of parliament prior to 2016 general elections. Where are opposition leaders as this case and many others can land ECL indicted for criminal sabotage. Zimbabwe have shown us.

    0

    0

Comments are closed.