Bampi Aubrey Kapalasa

By Mwaka Ndawa

THE Constitutional Court has declined the application by UPND member of parliament Bampi Kapalasa and Lusaka resident Joseph Busenga to withdraw their petitions in which they are seeking an interpretation on whether President Edgar Lungu can run for a third term in the August 12 elections.

This was after the state urged the court not to grant the discontinuance of the matter as this was its second chance to put to rest the debate on wether or not President Lungu has been sworn into office twice.

When the matter came up before justices Hildah Chibomba, Ann Sitali, Mungeni Mulenga, Palan Mulonda, Margaret Munalula, Martin Musaluke and Judy Mulongoti, lawyer representing the applicants Mulambo Haimbe sought leave of the court to discontinue the matter.

Haimbe said around 13:00 hours, he received instructions from Kapalasa and Busena to withdraw the substantive proceedings pending before court.

“Being bound by legal profession privilege, I am unable to go into detail to explain the reason to withdraw the consolidated legal action. The applicants have had a change of heart and do not wish to pursue the legal action further,” Haimbe said.

“We apologise for the inconvenience this application has caused upon the court, Attorney General and his team. Our hands are tied and we accordingly prepared a notice to discontinue the consolidated action which we have not been able to file due to time and we seek leave to file it in open court.”

Solicitor General Abraham Mwansa said that inasmuch as the Constitutuinal Court rules SI no. 37 of 2016 and particularly Order 10 Rule 3 permits discontinuance of actions, a petitioner seeking to discontinue a matter needs to give notice to the court and the respondent of such an intention.

Mwansa said such a withdrawal should first be preceded by formally filing a notice which was not done in this case even though there was an explanation.

“This court may take judicial notice of the fact that Kapalasa filed a petition on January 30, 2017 under chase no. 2017/CCZ/002 in which he sought similar reliefs. He never took steps to prosecute the petition and on May 20, 2017 l, a single judge dismissed the petition for want of prosecution,” Mwansa submitted.

“Yet again Kapalasa has approached this court seeking the same reliefs that he sought in 2017 and at the 11th hour, himself and Busenga are seeking to discontinue the substantive petition.”

Mwansa said since the delivery of the judgement 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, there has been a lot of debate that President Lungu’s eligibilty to contest this year’s election had not been adjudicated upon and this prompted the filing of the motion.

“It will be in the interest of justice that finality be brought to the debate.
We urge this court to decline the request to discontinue the main matter commenced by the applicants and the court proceeds to hear the motion,” Mwansa suggested.

“It would have been different if the applicants had conceded that the issues they raised in their originating summons have already been adjudicated upon by the court and there is no need for them to proceed with the susbstantive action. The court should not be turned into a play ground where a litigant commences an action, they withdraw or fail to prosecute and then file another action with similar reliefs.”

Attorney General Likando Kalaluka argued that the court in its landmark judgement in the Danny Pule case interpreted the provisions of Article 106(1)(3) and (6)(a) and (b).

He said despite the said judgement, the court will take judicial notice that there had been continuous debate as to wether it properly interpreted the said article.

“The public debate is of a constitutional nature and the facts before you require the court to make a decisive position on wether Articles 106(1)(3) and (6)(a) and (b) have been duly interpreted by the court. Allowing the withdrawal will mean that the judgement of this court will continue to be questioned,” Kalaluka said.

“It is in the interest of justice the the court puts the matter to rest once and for all especially that we have the general elections in August. In the event that the court allows a discontinuance, our prayer is that the applicants be condemned to costs occasioned to the state in defending the matter.”

Principal state advocate Francis Mwale adopted the submissions by the Solicitor General and Attorney General, insisting that the matter should not be withdrawn now.

In reply, Haimbe argued that the submissions by the state that a party that no longer wishes to pursue an action should be shackled with continuing such an action begs a question on whether the interest of justice would be served by forcing the applicants to continue with the litigation.

He said the state has not given a compelling reason to decline leave to discontinue the matter or any prejudice they will suffer if the same is withdrawn.

“Discontinuance of this action will not in any way bar other members of the public who have an interest in the matter from commencing their own action. Public interest cannot outweigh the applicants’ constitutional rights to freely exercise their freedom of conscious,” Haimbe submitted.

“The court should consider the implications of forcing a party to continue with proceedings where they have expressed their desire not to.”

Haimbe further wondered why Kalaluka was insisting that the matter be heard when he had earlier submitted that the issues raised in the originating summons were already decided upon thereby contradicting himself.

Ruling in the matter, the court refused to grant Kapalasa and Busenga leave to withdraw the matter and ordered that it would proceed to hear the preliminary issues raised by Kalaluka on whether the court has the power to determine the petition as it had already pronounced itself on the eligibility of President Lungu in the Danny Pule case.

At this point, Haimbe asked the court to excuse him as he did not obtain further written instructions from Kapalasa and Busenga to continue representing them, as the only instructions he was given was to withdraw the matter.

The court gave Kapalasa and Busenga one day in which to engage other lawyers or return Haimbe and adjourned the matter to May 5 this year at 14:00.


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