Munali and Lusaka Central: the appeal cases that reveal a court system in crisis

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HIgh Court
HIgh Court

By Sishuwa Sishuwa

Given that there are relatively few cases before it, what explains the continued delay by the Constitutional Court (ConCourt) in determining the election appeal cases involving Margaret Mwanakatwe, the Lusaka Central Patriotic Front (PF) Member of Parliament and Minister of Finance, and Nkandu Luo, the PF MP for Munali constituency and Minister of Higher Education? Is it simply the fact that the ConCourt was not functioning for quite some time because almost all judges were subject of an investigation by the Judicial Complaints Commission, which ultimately exonerated them? Or perhaps there is more to the case than meets the eye? To recap: in November 2016, the Lusaka High Court nullified the duo’s elections for electoral malpractices after the defeated opposition United Party for National Development (UPND) candidates petitioned the results of the 11 August 2016 vote. The two high-profile ministers appealed to the ConCourt, seeking to overturn the High Court rulings. Nearly fifteen months later, the two appeal cases remain undetermined, yet several similar less high-profile cases that were filed around the same time have already been disposed of. Notwithstanding rumours that a ruling, at least in the Munali case, will be made this very week, it is worth asking what explains this undue delay. Before attempting any response to this question, it is worth quoting in full the relevant clause of the Constitution, which deals with petitions relating to the election of MPs:

73. (1) A person may [within seven days of the declaration of the election results?] file an election petition with the High Court to challenge the election of a Member of Parliament.

(2) An election petition shall be heard [and determined?] within ninety days of the filing of the petition.

(3) A person may appeal against the decision of the High Court to the Constitutional Court.

(4) A Member of Parliament whose election is petitioned shall hold the seat in the National Assembly pending the determination of the election petition.

The first possible explanation then is that the delay in resolving parliamentary election appeal cases is a consequence of the weaknesses of the existing law. While the Constitution requires the High Court to ‘hear’ and presumably determine a properly filed petition against an elected MP within 90 days, it does not provide for a specific timeframe within which a subsequent appeal to the ConCourt must be decided. This is an institutional loophole that some judges may take advantage of to delay deciding appeal cases, one that should be rectified urgently because it potentially undermines the efficient administration of justice and enables judges that are susceptible to political and financial influence to hide behind its ambiguity.

Since the Constitution stipulates that the High Court must ‘hear’ and possibly dispose of a candidate’s petition within 90 days, any further appeal to the ConCourt should be dispatched with the utmost urgency to ensure that the case is not unduly delayed much beyond the three months set in the Constitution and to observe the judicial principle that justice delayed is justice denied. This is especially so in the current context, where the Constitution appears to allow an MP whose election has been nullified but who consequently appeals to the ConCourt to remain in the National Assembly until after the determination of his or her case. If the ConCourt, after so much undue delay, ultimately finds that one was not duly elected to Parliament, it would be complicit in having perpetuated a form of electoral injustice where the wronged voters of a given constituency were all along denied their chosen representative and instead had a dishonourable crook foisted upon them. Thus, in failing to expedite the appeal cases, the Constitutional Court is damaging its reputation as an institution that is able to dispense justice in a timely manner. This erosion of its reputation has grave consequences for the rule of law in Zambia. For instance, the court’s failure to intervene promptly in election appeal cases means that there is effectively no incentive for political parties and individuals to abide by the rules of the game in future elections. Candidates who win illegitimately can be confident that years will go by with them sitting in Parliament and enjoying all the privileges that come with being an MP while their appeal cases remain undetermined in the ConCourt.

Another constitutional weakness that needs to be corrected urgently relates to the requirement that ‘[a] person may appeal against the decision of the High Court to the Constitutional Court’. In my view, it seems to be a fundamental error in law that political parties or losing candidates unsatisfied with the rulings of the High Court should be appealing, mandatorily, to the ConCourt rather than the Court of Appeal and possibly the Supreme Court. The question of whether or not someone has cheated in an election is not necessarily a constitutional matter; it can simply be a legal issue, and the ConCourt, a specialised body, is supposed to only adjudicate on cases where the interpretation of the Constitution is in dispute, which is hardly the case here. In this case, the High Court found that Mwanakatwe and Luo were guilty of winning their elections by means of intimidation, use of racist remarks and public resources for campaigning, and violence. None of these are constitutional matters that warrant the attention of the ConCourt.

Here, we see yet another problem created by the 2016 hurriedly-amended Constitution: lack of a clearly defined hierarchical order of the country’s superior court system, which has effectively rendered the Supreme Court redundant. One possible way of addressing this defect, which reveals a court system in crisis, is to strictly delineate the mandate of the ConCourt, which, according to Article 121, is equivalent in rank to the Supreme Court. As presently designed, the Concourt is a mess and it is hard to argue that it brings anything new on board. A more effective solution would be to abolish the ConCourt altogether, as recently proposed by civil society groups, and focus on strengthening the exiting courts, including by way of requiring all judges and magistrates to retire and re-apply for their positions through an independent vetting board. This approach would lessen the problems of corruption and incompetence that are central features of our justice system.

The Judiciary may have a few individuals who still pretend that they are serving a higher cause than that of the lumpen elites in power and foreign money in Zambia. Taken as a whole, however, the judiciary is rotten to the core. Genuinely good individuals in the Zambian judiciary, especially the higher echelons, would have resigned a long time ago when Frederick Chiluba, Levy Mwanawasa, Michael Sata, Rupiah Banda and now Edgar Lungu all made it clear to them that they exist mainly to carry out the wishes of the executive. It matters less to some on the bench that they belong to a noble profession that should dispense only truth and justice – a considerable number of them are happy to serve out lies and injustice to advance their careers and the interests of the ruling authorities. In our extreme material and cultural impoverishment, the truth is foreign and professions are a means to find a job, for survival, not to advance the so-called ‘noble ideals’ of the profession. Law has in fact assumed the mantle of leader, in this regard, in Zambia; it has become the scum of all professions, in my opinion. To become a lawyer has become the immediate dream of any young man or woman seeking to escape poverty. This is an acidic ingredient of a judiciary that is highly susceptible to political and financial interests.
The more plausible, and ominous, explanation behind the delays in disposing of the appeal cases is that this is a conscious political strategy that has been adopted by the ruling authorities. This strategy is one of pressuring the courts to make constant adjournments to the cases to avoid holding any parliamentary by-election in urban constituencies of Lusaka for fear of losing to the UPND. Any loss to the opposition would be embarrassing and reveal waning support for the ruling party. More importantly, the evidence on which Luo and Mwanakatwe’s seats were nullified is similar to the irregularities that Hakainde Hichilema and Geoffrey Bwalya Mwamba cited in their petition against the election of Lungu. If the ConCourt upholds the decisions of the High Court, it would open a Pandora’s box, as the UPND is likely to use the rulings as proof of the serious irregularities that marred the presidential election. The main opposition is also likely to insist that by extension their petition, which was dismissed without being heard, must be heard.
It is worth remembering that Hichilema and Mwamba have appealed to the High Court claiming that their right to be heard as stipulated in Article 18 of the Constitution was violated by the ConCourt when it disposed of their petition against Lungu’s election without hearing it, as required by Article 101 (5). This much-delayed case remains before the High Court and the judge who is hearing the matter, Mwila Chitabo, has stayed proceedings pending determination of an appeal to the Supreme Court to make him recuse himself from it for alleged bias. If the ConCourt upholds the High Court decisions to nullify the seats, it would effectively put pressure on the Supreme and High courts to make a ruling on the right to be heard case, the outcome of which might potentially plunge the country into a constitutional crisis.

Source:Diggers News

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27 COMMENTS

  1. Remember what Mwanawasa did? Dr Machungwa and several other PF MPs were expelled from the party but the high court kept on adjourning the case thus enabling these MPs complete their term as members of Parliament. In short our courts have had a problem where certain cases confront them. Remember what happened when KK’s son murdered some woman in Kamamga township? The law was amended so that the murderer had the option of paying a fine.

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    • Mwanawasa was another crooked lawyer. It’s not good to hide behind legal technicalities. The moment he appointed Ernest Sakala instead of promoting David Lewanika who was Deputy CJ, I knew we were headed for legal gymnastics

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  2. Just because our court system did not listen to you cry babies, does not mean you insult our men and women of this mostly noble order.

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    • read the whole article ,disappointed especially your comments bears USA flag.the author did explain in detail as to why the judicially is controlled by the executive branch starting from KK,CHILUBA,MWANAWASA,RB AND NOW ECL.

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  3. I agree with you on the fact that the ConCourt is a monster that must be abolished. What we need is to enlarge the Supreme Court bench, and any 3 judges can make a quorum, unless there are compelling reasons for the whole bench to seat

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    • in my opinion what zambia needs is a 10 circuit court,each province should have two or three judges who can be given same case and then make a ruling ,if it happens its a tie then the case can be heard at the supreme court,we can name such court AS 10 CIRCUIT COURTS OR COURT OF APPEALS.the judges should write an opinion as regard to the case not the current system of voting yes or no.

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  4. Further, a time frame must be put on Constitutional matters even without parties filing certificates of urgency the Chief Justice must within time constitute a panel to hear cases and determine them in less than 90days.

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  5. Botswana, as a matter of effective justice, fast-tracks corruption and electoral malpractice cases. This is actually with the full force of political will. What happens now to an MP who has overstayed by the technicality of appeal and then has a seat nullified?? Or what happens to those pathetic ex-Ministers who are yet to pay their salaries back because for some yet unknown reason the case was determined long after they had earned and flushed their salaries and allowances? I am still struggling to understand the African mind really.

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  6. I tend to agree on the issue of time limit for hearing and determining a case of this nature. Indeed, what happens if this case goes on to the end of the current life of Parliament? Mind you, these MPs get sitting allowances and at the end of five years they will get gratuity. Are these payments going to be withheld? What about the ongoing payments of sitting allowances; what will happen if the ruling will be against them; because they will have been deemed to have received these payments illegally?

    I do not know if it is too late for one to submit to the team working on amending the amended constitution an amendment regarding the duration of hearing and determining the appeal at the level of the Concourt. Leaving it open-ended as it is currently, is recipe for financial…

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  7. By the way, this type of lacunas in the amended constitution is the whole reason why former ministers were adjudged to have occupied their offices and paid remunerations as an illegality after dissolution of Parliament. This was because the same constitution did not include the dissolution of Parliament as one of the grounds for the ministers to vacate the office. Of course, this matter was heard and determined by the Concourt, although I am not sure whether the decision has been implemented or not.

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  8. The parties which boycotted the constitution making process have no right to complain. The Con Court are within their right to determine the case even after five years

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  9. This is worth debating and correcting. I also wonder why some civil servants, whose elections were nullified, are still appointed and they earn salaries as if nothing had happened?

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  10. Okay, you are blaming the concourt of delaying the outcome of this case, now assuming that they overturn the High Court ruling and declare the two were duly elected, arent we going to see insults and morning from UPND? Objectivity and not subjectivity must drive the intent of these writings. One can clearly see that the writer is a UPND fimo fimo, be objective for once imwe.

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  11. Wanted to comment on the article until I saw upndeez in it. Clearly as they are fighting their battles they can’t help twisting and dropping hints here and there in favour of their king h.h.
    That is why they want to sabotage anything that will give kudos to their rival, they are into arson, motorcades, misinformation, fake information, laboratory prepared army worms and cholera, denying credit to surgical teams that separate siamese twins, hacking government computer systems etc you name, you are likely to find upndeez everywhere you search.
    Aahh wrotten statements!

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  12. If I remebervwel upnd also lost one or two parliamentary seat in High court and its members appealed to the same Con Court. Why only talk about the delayed judgement for PF. What is good for the goose is also good for gander.

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    • i think the reason is the two are currently serving ministers,pf and upnd has some pertitions pending in our courts on appeal,but the two folks are milking us as they are getting double pay.

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  13. itezhitezhi to be in particular was nalified in 2016 and the upnd mp appealed to the ConCourt. Is HH asked the court to delay the matter or the same reasons that is delaying the Lusaka and munali saet? Upnd and HH are hypocrites that why twhy are quick to praise people who they accused of corruption when they are on their side an example is GBM. You are corrupt if you don’t support HH and your a cleaned off curuption if you join then.What is happening to the Itezhitezhi appeal in the ConCourt?

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  14. Bro planzo. Its not about minister or not when it comes to delayed justice. They arevall Zambian whether in government or opposition. This exposeses the doubled standards in upnd. They should be at least be honest with themselves for once. The other day day HH was complaining of Delayed justice knowing very well that his party is also benefiting from the perceived incompetence at the ConCourt. That’s why I like Frank Tayali, calls a spade a spade. He is hated for the truth how I hope HH was like him.

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  15. IT IS NOT ABOUT WHO IS WHO BUT THE JUDICIARY IS TO BLAME. THEY CLAIM THEY DO NOT TAKE SIDES AND ARE AUTONOMOUS BUT FROM THE LOOK OF THINGS, MOST OF THE JUDGES DO NOT WANT TO BE DEMOTED BY THE APPOINTING AUTHORITY BUT WOULD RATHER FOLLOW RABISH BY ADHERING WHAT THE MASTER IN THIS CASE THE PRESIDENT.

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  16. Justice delayed, is justice denied. The adage is recommending timely court trial and ruling. On the other extreme, you will find a kangaroo court waiting. A kangaroo court is a crowd of an instant justice brigade. Like it or not, the court case must run only according to the time permitted by the existing law. The argument that court delays are politically motivated is an assault on the judicature of the country. The full picture needs to be revisited. If the opposition leader is inconvenienced by the delay, then the ruling party is manipulating the justice system. What about legal procedure? If court delays are dubious, then take the matter to the relevant offices. The court is like cooking. If you fry the case, then you do more harm than good. The independence of judicature must be…

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    • If the opposition leader is inconvenienced by the delay, then the ruling party is manipulating the justice system. What about legal procedure? If court delays are dubious, then take the matter to the relevant offices. The court is like cooking. If you fry the case, then you do more harm than good. The independence of judicature must be respected even when the individual is inconvenienced. Legal reforms need proper justification, not personalities.

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  17. This is where Sishuwa (as well as Chipenzi and sometimes Prof. Muna Ndulo) go wrong when they analyze issues from one side only. An analyst worth the salt should balance analysis or at least state why they have chosen a particular perspective.

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