Bampi Aubrey Kapalasa

By Mwaka Ndawa

THE Constitutional Court has thrown out the matter in which UPND Katuba member of parliament Bampi Kapalasa and Lusaka resident Joseph Busenga were seeking an interpretation on whether President Edgar Lungu can contest the August 12 elections as a presidential candidate after being sworn into office twice.

This was after Busenga rage-quit arguing the case owing to the court’s refusal to give him time to engage lawyers because constitutional matters were technical in nature.

Kapalasa and Busenga were seeking an interpretation of Articles 106(1)(3) and (6)(a) and (b) of the Constitution of Zambia (Amendment) Act no.2 of 2016 on whether President Lungu can run for a third term in this year’s elections.

Busenga wanted an interpretation of Article 70(2)(f) of the constitution of Zambia (Amendment) Act no.2 of 2016 on wether or not a person who is serving a suspended sentence is disqualified from being elected as member of parliament.

The petitioners sought a determination on whether or not a person that has been sworn into office more than once and has exercised the functions of the office of the President of Zambia may be deemed to have “twice held office” within the context in which the expression has been used in Article 206(3) of the constitution regardless of the period the person served in office.

They further wanted the court to determine whether or not it was the intention of the drafters of the constitution that a person who has held the office of President twice may be elected to hold office for a third term.

When the matter came up before justices Hildah Chibomba, Ann Sitali, Mungeni Mulenga, Palan Mulonda, Margarete Munalula, Martin Musaluke and Judy Mulongoti, Kapalasa and Busenga informed the court that they did not return their previous lawyer Mulambo Haimbe.

Kapalasa said he had filed summons to set aside the Attorney General’s notice to raise preliminary issue for irregularity.

However, Busenga submitted that he was not privy to Kapalasa’s application and requested for time to go through the said summons and seek legal advice on how he could respond to the application.

In response, Attorney General Likando Kalaluka argued that Busenga’s request for more time to engage counsel to study Kapalasa’s application was not justifiable, as he had already filed an affidavit in opposition and skeleton arguments to the motion by the state.

Kalaluka said the applicants both filed motions beseeching the court to dismiss the state’s motion for alleged irregularity.

He said since Busenga had already taken steps in relation to the state’s motion, he cannot ask for more time to study Kapalasa’s application.

Kalaluka proposed that the court stands down the matter for 15 minutes and allow Busenga to familiarise himself with Kapalasa’s application.

He argued that the pronouncement of the court in relation to the filing of a motion upon motion which Kapalasa had done was that court frowns upon such acts as they delay proceedings.

“To avoid unnecessary delays, the motion raised by Kapalasa be deemed as an affidavit in opposition to the motion by the state in line with the court’s guidance. Considering that Busenga already filed an affidavit and skeleton arguments in opposition, the court will be able to render a ruling on the motion already filed by the state,” Kalaluka said.

And Solicitor General Abraham Mwansa said Kapalasa’s summons were not properly before court and ought to be struck out.

Busenga argued that when a case is consolidated, it becomes one hence his reason to ask for more time and look at Kapalasa’s application bearing the implications it had on the case.

“The argument by the Attorney General that the matter be stood down is not in the interest of justice. This case has attracted a lot of public interest and a lot of law firms are excoriating in representing this case that’s why I said I seek legal advice maybe behind closed doors,” Busenga said.

Ruling on the matter, justice Mulenga dismissed Kapalasa and Busenga’s applications opposition the Attorney General’s motion to raise preliminary issue for irregularity and ordered that the preliminary issue be heard.

Kalaluka prayed to the court that the applicants’ originating summons seeking an interpretation on President Lungu’s eligibility to contest election be dismissed because the issues raised have already been decided upon in the Danny Pule case and the court was functus officio.

Kapalasa said the matter bordered on the constitution and urged the judges to consider the repercussions it had if it was thrown out.

However, Busenga withdrew his application in opposition to the Attorney General’s motion in which he argued that the matter was not targeted at an individual but called for an interpretation on wether a person who is sworn into office twice as President can run for a third term.

“I do not have legal expediency to comprehend immediately what the issues are in relation to the motion by the Attorney General, that’s why I asked for time to seek legal representation. I abandon my application in opposition to the motion by the Attorney General in the interest of time,” Busenga said.

When asked by judge Mulenga if he was abandoning his motion in opposition and conceding that Kalaluka’s argument that the issues raised were res judicata had merit, Busenga said it was difficult to answer such a question.

“It is intricate to answer your question my lady. I cannot say the Attorney General’s application has merit or what counsel stated was not factual, I am withdrawing my objection towards his application in the interest of saving time,” said Busenga.

Ruling on the matter, justice Mulenga said the motion by Kalaluka on whether or not Articles 106(1)(3) and (6)(a) and (b) of the Constitution of Zambia (Amendment) Act no.2 of 2016 being sought by the petitioners has been decided upon in the case of Dan Pule and three others vs the Attorney General, PF secretary general Davies Mwila, UPND secretary general Steven Katuka and the Law Association of Zambia selective judgement no.60 of 2018, has merit.

“The originating summons by the first and second applicants are hereby dismissed in their entirety. We will give our full ruling and reasons on Friday at 14:30 hours. The issues relating to Article 70 survive, shall continue and is reserved for scheduling before a single judge,” said justice Mulenga.

In his reaction to the Court’s decision to throw out the matter, Busenga said the court did not objectively handle the matter.

“We respect the decision by the courts but I feel we were not fairly treated. Each and every person is entitled to legal representation by virtual of the constitution. This is a matter that has attracted a lot of public interest, most of it political in nature and it has been very defficult to rettain counsel because they do not want to risk their business or their lives,” Busenga said.

“We rettained counsel as of yesterday, as of this morning, counsel withdrew and we were left with little options. Constitutional issues are technical in nature and very defficult to comprehend and interpret and we needed someone who has vast knowledge in constitutional law and who was willing above all chiefly.”

He said there would have been a level playing field if they were represented but himself and Kapalasa were disadvantaged because they were not given enough time to retain their advocates and such a decision was not fair as they have been prejudiced.

And Kapalasa, who shared Busenga’s views, called on Zambians to rise and fight against President Lungu’s third term. -The Mast


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