CAN A COURT STOP THE TICKING OF TIME SPECIFEID IN A CONSTITUTION? AREN’T WE CREATING ANOTHER LEGAL DEBATE AGAIN?
Last week, the Court of Appeals made a decision to stay the decision of the High Court that stayed the holding, by the Electoral commission of Zambia (ECZ), of the Kabushi and Kwacha parliamentary by-elections until the main matter was heard and determined on 20 Sept, 2022.
However, before the High Court could deliver its decision, the Court of Appeal stayed all proceedings, including the expected decision expected on 20 September, in the High Court on 16 September 2022 and set 22 September, 2022 as the ex-parte hearing and perhaps the discharge of the stay.
The time allocated in the Constitution for nomination trial/challenge is 21 days which days seemed to have expired yesterday, 20 September, 2022 as the count include excluded days too.
However, the Court of Appeal contended that the stay on the High Court proceedings also stayed the time clock from ticking and would only resume ticking after the discharge of the stay on 22 September.
However, 52(4) guides that A person may challenge, before a court or tribunal, as prescribed, the nomination of a candidate within seven days of the close of nomination and the court shall hear the case within twenty- one days of its lodgement. which days seem to have expired.
In addition clause (5) stresses that the processes specified in clauses (1) to (4) [i.e. nomination and challenge of nominations] shall be completed at least thirty days before a general election in this case 15 September which was the election date.
Now, using the law of precedence and anchoring it on the precedence set by the Constitutional Court in the 2016 PRESIDENTIAL PETITION where the Court refused to extend time (i.e 14 calender days) for lack of jurisdiction to extend time resulting into a premature discharge of the petition for the lapse of time,
Will Court of Appeal act differently and revisit this precedence set by the Constitutional Court in 2016 and stop time from ticking for purpose of allowing the proceedings and decisions on the matter to be made in High Court or whichever court when the time allocated on this matter in the Constitution has expired?
At least if the initial decision was made by the High Court and now this is a contention in an appellant court, it would make some arguments.
Guided by Article 274 which talks about time for performance of a function by a person and it says A function conferred in this Constitution may be performed as occasion requires and my view is that the Court is supposed to make a decision within 21 days.
it will be interesting to see how this matter unfolds on 22 September 2022 and after and how precedence will be navigated this time around.
Further the nation is walked through the legal forest by Article 269 regarding the computation of time in matters like these and that any proceedings that is undertaken above seven (7) days, excluded days (i.e.Saturday, Sunday & Public holidays)- are concluded in computation of days.
It states, for the purposes of this Constitution, in computing time, unless a contrary intention is expressed—
(a) a period of days from the happening of an event or the doing of an act shall be considered to be exclusive of the day on which the event happens or the act is done;
(b) if the last day of the period is a Saturday, Sunday or public holiday (“excluded day”), the period shall include the next day;
(c) where an act or a proceeding is directed or allowed to be done or taken on a specified day and that day is an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken the next day; and
(d) where an act or a proceeding is directed or allowed to be done or taken within a time not exceeding six days, an excluded day shall not be counted in the computation of the time.
Will this petition on Kabushi and Kwacha be treated differently or a long legal battle is not yet far from ending as efforts to abridge time collapsed yesterday?
In line with Art 267 (3) A provision of this Constitution shall be construed according to the doctrine that the law is continuously in force….
Can we, therefore, argue that the Court has power to temporarily punctuate this doctrine of law being continuously in force? as argued by the supreme law?
Let us wait and see.