ABOUT WEAPONIZING THE JUDICIARY: A CASE OF THE KABUSHI AND KWACHA PETITIONS- Sean Tembo

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ABOUT WEAPONIZING THE JUDICIARY: A CASE OF THE KABUSHI AND KWACHA PETITIONS

By Sean Tembo – PeP President

1. The world over, an independent, objective and competent judiciary has a major role to play in not only promoting peace and unity but also in fostering economic development. When people quarrel in the community, they need to be assured that if they take their quarrels to authorities, they will get justice. Without such assurance about the independence, objectivity and competence of the judicial system, people will not waste their time taking their conflicts to the authorities for resolution. Instead, societal conflicts will be resolved using underhand methods of revenge, ostensibly using violence. That will take us back to the pre-civilization times when violence, murder and mayhem was the standard way of resolving societal conflicts.

2. That said, the behavior of our senior courts in the handling of the Kabushi and Kwacha petitions leaves much to be desired. Three courts were involved in these petitions; being the High Court, Court of Appeal and the Constitution Court. The first to take a bite at the apple was the High Court, which nullified the two elections. As per provisions in the Constitution, the High Court is the court of first instance for election related matters, and any appeal has to go straight to the Constitutional Court, not the Court of Appeal nor the Supreme Court. So subsequent to the nullification of their seats by the High Court, Bowman and Malanji went to appeal at the Constitutional Court.

3. The Constitutional Court decided to uphold the judgement of the High Court, which is fine. Nothing wrong with that. However, in upholding the nullification of the two seats, the Constitutional Court failed to clearly state in it’s judgement whether Bowman Lusambo and Joseph Malanji were eligible to stand in the by-elections which had been caused by a nullification of their seats. That was problem number one. At this juncture, allow me to state that judgements of the Constitutional Court are traditionally vague and either lack clarity or create additional debate and confusion. Whenever the Constitutional Court issues a judgement, litigants are often left wondering who has won the case! Time and again, this has resulted in additional litigation as was the case with Former President Lungu’s eligibility matter. The Constitutional Court has often failed to bring matters before it to a finality, despite being a court of final instance. Why this Court behaves in this manner has always been a wonder to me. But l am inclined to believe the submissions of Counsel John Sangwa which he made at the very inception of the Constitutional Court, that the judges of this Court lack the necessary qualifications and experience. Indeed, there appears to be very little competence at Constitutional Court level and it is only by the grace of God that they have not plunged this country into a constitutional crisis.

3. Anyway, back to the issue at hand. So in upholding the nullification of the two seats, the Constitutional Court omitted to state in their judgement whether Bowman and Malanji were eligible to stand in the upcoming by-elections. This prompted another lawsuit by the two, before the same ConCourt. In the second matter, the Constitutional Court ruled that nullification does not amount to disqualification, meaning that the fact that Bowman and Malanji’s seats were nullified does not mean that the two are disqualified to stand in the upcoming by-elections. In a properly functioning democracy, this second pronouncement by the Constitutional Court would have put this matter to bed once and for all. But not under the current regime.

4. A few days later, the Electoral Commission of Zambia (ECZ) issued a statement that it will not accept nominations from individuals whose seats were nullified in Kabushi and Kwacha constituencies. This statement by ECZ was contrary to the second judgement of the Constitutional Court which made it clear that nullification of the two seats did not mean that Bowman and Malanji were disqualified from re-contesting.

5. As a result of the ECZ statement, Bowman and Malanji approached the High Court and commenced judicial review proceedings against the Electoral Commission of Zambia for their decision to ignore the judgement of the Constitutional Court and try to exclude Bowman and Malanji from filing in their nominations. As the matter before the High Court was being allocated, ECZ proceeded to conduct the nomination process for both Kabushi and Kwacha, and true to their word, they refused to accept nominations from Bowman and Malanji. A few days after the nominations, the High Court, after constituting a panel of three judges, granted the Applicants leave to commence judicial review proceedings against ECZ, which also acted as a stay of the elections. In other words, the elections could not take place until this matter was concluded.

6. A few days later, the Government through the Attorney General applied and was joined to this matter as a Respondent. Immediately thereafter, the Attorney General approached the Court of Appeal and obtained a stay of all proceedings in the High Court. This was despite the Constitutional requirement that only two courts will deal with election related disputes; the High Court and the Constitutional Court. The Attorney General as learned as he is, knew or should have known that the Court of Appeal had no jurisdiction in this matter, and that if he wanted to appeal the High Court ruling in the judicial review proceedings, he should have approached the Constitutional Court and not the Court of Appeal. Similarly, the judges of the Court of Appeal, as learned as they are, knew or should have known that they had no jurisdiction to hear this matter, let alone grant a stay of the proceedings of the High Court. But both the Attorney General and the Court of Appeal decided to proceed with their illegality.

7. In issuing it’s illegal stay of the judicial review proceedings before the High Court, the Court of Appeal also claimed to have stopped the 21 days from running. Judicial review proceedings need to be concluded by the High Court within 21 days, otherwise the whole proceedings are considered null and void. But the Court of Appeal claimed to have stopped those 21 days from running, despite not having the jurisdiction to hear this matter and not having the authority to stop a statute-established timeline from running. Additionally, after the Court of Appeal stopped the proceedings before the High Court, they did not go on to expeditious hear the appeal which the Attorney General had filed before it, so that the appeal could be determined and the stay on the High Court proceedings can be lifted. Instead, the Court of Appeal just stopped the High Court proceedings and went on holiday waiting for the 21 days to expire!

8. About a week ago, and despite the High Court stay of elections still being in force, the Electoral Commission of Zambia announced that it will hold the Kabushi and Kwacha by-elections on Friday, 21st October 2022. President Hakainde Hichilema then proceeded to go to Kabushi and Kwacha to campaign. A day before the scheduled date for the elections, the Court of Appeal scheduled a hearing of why the Attorney General had obtained a stay of the judicial review proceedings before the High Court. However, the lawyers from Attorney General’s chambers did not show up, because, according to a memo from the Acting Chief Justice, all the lawyers were attending a workshop and all matters involving the AG needed to be adjourned.

9. On the same day however, the Constitutional Court sitting in Ndola ruled that the Court of Appeal had no jurisdiction to stop the judicial review proceedings that were before the High Court, because any appeal of an election related dispute is supposed to go to the Constitutional Court and not the Court of Appeal. The ConCourt further ruled that the Court of Appeal had no authority to stop the 21 days from running. However, l do not believe that this ruling by the Constitutional Court came as a surprise to both the Attorney General and the three judges of the Court of Appeal.

10. I strongly believe that the judges of the Court of Appeal knew fully well that what they were doing was an illegality, but decided to do it anyway, in order to subvert the course of justice and allow the Kabushi and Kwacha by-elections to take place without Lusambo and Malanji being heard by the High Court. Knowingly defeating the ends of justice is a serious criminal offense, and it is for this reason that l call for the arrest and prosecution of the three Court of Appeal judges who knowingly defeated the ends of justice in this matter. If the police do not act, we will consider private prosecution in this matter.

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SET 22.10.2022

7 COMMENTS

  1. Well articulated ba TEMBO but my dispute is to involve the President and UPND on this unfortunate issue. HH has no hand in this. Just proceed with the courts without putting the blame on HAKAINDE. Mind you these problems began during ECL’s reign. There was public outcry that PF had “captured” all institutions and the judiciary was top on the agenda. Most cases seemed to have been frustrated by the courts particularly constitutional court. The 2021 fourteen days petition baffled most of us up to now. So kaya bakalamba, isansa kucinjana, some of us are dancing now while TEMBO and company bali bombemene. That’s the way we go – we have gained two more MPs – a good plus.

  2. Just move on. The polls were held and both winners and losers emerged.Nothing you say or do now can change anything.Continue enjoying your rights and freedoms in peace and tranquility. Hoping in the next bye election PeP will field a candidate.

  3. Tem o refers to John Sangwa’s observations that most of the judges at the Constitution Court are not qualified & experienced but if this regime starts putting right people in these institutions you will be the first persons to climb the hills saying HH wants Tongas to man critical institutions.I however agree with you that since inception the Constitution Court has never pronounced any judgement that rested the dispute.

  4. With Concourt, I a gree with you, those who take their cases there are left more confused than before even wondering who won.
    This Concourt she be just be made a section of high court, working under it as its done in Kenya. NOT a court on its own, confusing everyone including it’s own judges. It’s easily manipulated as it doesn’t given a clear straight forward judgement. Its all people on both sides in dilemma as to what it means by their judgement.
    But its wrong to involve HH name in their mess.

  5. This article contains a lot of inaccuracies.

    First, on point #3 and #4, the Constitutional Court did not rule that nullification does not mean disqualification before the nominations, but after. It was in response to rejection of the nomination that Bowman and Malanji sought the ConCourt’s interpretation. The sequence of events are important here because they make it seem like ECZ ignored the ruling of the court.

    Second, there are no legal provisions for ECZ to cancel by-elections because the candidates whose nominations were rejected have been subsequently declared eligible. The ConCourt did not cancel those elections either (declaring them eligible is not the same as canceling the nominations).
    That is why Malanji and Lusambo sued for the High Court to stay the elections and deliberate on their cancelation.

    Third, the Court of Appeal stayed the High Court’s ruling, which allowed ECZ to set a different date. ECZ set a different date because they wanted to avoid falling out of the 90-day period. Whether the Court of Appeal had jurisdiction and whom they were conniving with is the author’s conspiracy theory – nobody should be listening to unsubstantiated claims.

  6. Good luck on your endeavours. Us we are happy those two are not participating. They have no moral right to demand to be on that ballot paper.

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