By Peter Sinkamba
As the Green Party, we reiterate our support for the Constitutional Court landmark decision on former Ministers to pay back to the State salaries and all other expenses they earned during their illegal stay in office. Much as the decision may appear draconian to affected former Ministers, it is our considered view that in the long run, the decision is absolutely necessary to confront executive impunity.
Who knows? Last time it is former ministers. Next time, it could be MPs, Mayors and Councillors from the ruling party who may refuse to vacate offices when parliament, and councils, are dissolved. They may argue, for example, that the constitution is wrong on dissolution because people need to be represented all the time. With executive impunity, Government of the day could continue paying them salaries up to the Election Day, thereby unduly disadvantaging opponents. We think that there is need to guard against such eventualities, remote they may appear at present, and we believe this landmark Concourt judgment could serve as a deterrent to such executive impunity.
We think that former ministers should just accept reality. They must understand that there is hardly a court decision that is always fair to both parties. Take for instance death sentence. Much as death sentence may appear fair and just to families of the victims of murder, such decisions are rarely perceived fair and just by the convicts and their families.
That said, our point of departure is on sluggishness on the part of the Concourt to resolve disputes. We think that it is fair and just to resolve cases promptly. And that is exactly what Articles 118 and 119 of the Constitution demand.
It took the Concourt four months??up to almost Election Day to render its judgment on former ministers and thereby unduly disadvantaging opposition parties’ candidates. I cannot surmise how else the injustice borne by the tax payers, and the opposition parties, can be remedied other than through the Court’s landmark decision.
Mind you, no former minister was forced to remain in office. They all had the liberty to either decline the “new appointment” or resign when court action was commenced. The fact that they continued to stay in office, and enjoy the lofty emoluments that go with those offices, implied that were doing so at their own peril.
However, the question that needs to be resolved at present is on the interpretation of the landmark decision in relation to continued stay in office by a minister after a High Court nullifies the election, and declares the seat vacant? Should that person pay back ministerial emoluments if the Concourt upholds the High Court decision? If so, when does the time starts running for paying back??is it from the time they were appointed ministers or for period they continued staying in office after the High Court decisions? This aspect needs to be clarified soonest by the Concourt in unambiguous manner.
The other aspect that needs to be clarified by the Concourt is on the time limit to resolve election disputes, both at High Court and Constitutional Court. Section 106 (10 of the Electoral Process Act of 2016 provides that an election petition shall be tried and determined by the High Court or a tribunal in open court??
(a) in the case of the election of a candidate as a Mayor, council chairperson or Councillor, within 30 days from the date of filing an election petition; and
(b) in the case of the election of a candidate as a Member of Parliament, within 90 days from the date of filing an election petition.
For Mayors, council chairpersons or Councillor, does the 30 day limit also include the appeal period? Or should the appeal period also be limited to 30 days?
In the case of MPs, should the 90 days also include the appeal period? Or should the appeal period also be limited to 90 days?
If the Presidential Petition hearing, which has no appeal, is limited to 14 days, why should the appeal period for MPs, Mayors and Councillors be indefinite after 30 and 90 days of hearings respectively?
In our view, the indefinite appeal period is certainly not desirable. There is absolutely no reasonable justification for an indefinite illegal stay in office.
And in any case, it is irrational for a court to order that the parties refund emoluments if the prolonged illegal stay in office is as a consequence of the delay on the part of the court to conclude the case.