By Mcdonald Chipenzi
BILL 10 PROPOSES CHIEF JUSTICE TO HEAR PRESIDENTIAL PETITION INSPITE OF BEING THE SWEARING IN OFFICER OF THE PRESIDENT-ELECT.
Under Art 105 (1) the Constitution mandates the Chief Justice to swore in a President-elect. It states, “The President-elect shall assume office after being sworn in by the CHIEF Justice (CJ) or, in the absence of the CHIEF Justice, the Deputy Chief Justice”
The Constitution states that in the event of a Presidential petition, the Constitutional Court is petitioned within 7 days (Art 101(4) and Art 103(1) to either to validate or nullify the election.
The Constitution places the President of the Constitutional Court as head of this Court which hears presidential petitions and presides over this court with “original and final jurisdiction to hear a matter relating to the President, Vice-President or an election of a president”.
Therefore, if there is a matter involving the person (s) the CJ swore in, will s/he recuse her/herself from handling the matter due to conflict of interest?
Under the current Order, the CJ is placed as head of the Judiciary (Art 136) and responsible for swearing in of the President-elect (Art 105(1) and not to hear the Presidential Petition or any matter related to the President or Vice-President.
However, Bill 10 tampers with this arrangement which guarantees separation of power within the Judiciary and also removes possible conflict of interest on the part of the CJ by proposing that the CJ be part of the Constitutional Court and automatically hear the Presidential Petition.
This is contained in the proposed Amendment 127 where the Bill is proposing that ” there is established the Constitutional Court which consists of- the Chief Justice; the President of the Constitutional court; and an uneven number of Judges, as Prescribed”.
The Bill does not even prescribe who takes over in the absence of the CJ in presiding over this Court. Is it the DCJ or the President of the Constitutional Court? Who is deputising who? This is another lacunae already to be created and promoted by the Bill 10.
By implication, this means that the CJ will have to preside over any Presidential Petition or a matter related to the President, a person s/he would have sworn in or about to swear in.
This is creating conflict of interest and no wonder we advocated previously before the 2016 constitutional amendments that the CJ be ceased to be the Returning Officer in the Presidential election but the Electoral Commission of Zambia Chairperson to remove biases and conflict of interests in an event of a Presidential petition.
But Bill 10 is indirectly using the backdoor restoring that previous order of handling presidential petitions in Zambia.
This is how warped Bill 10 is. The withdrawal method be applied on this BILL
I submit ndime McDonald CHIPENZI