By Mwaka Ndawa
THE Constitutional Court has rejected the prayer by former minister of foreign affairs Joseph Malanji to produce his grade 12 certificate at appeal stage.
The court said on Thursday that the admission of fresh evidence has the potential to undermine the principle that litigation ought to come to an end.
The court noted that Malanji’s intended exhiibits were presented to the Electoral Commission of Zambia when filing in nomination papers prior to the August 12, 2021 General Election according to his testimony, and thst he was in possession of the same dicument during trial when his election was challenged.
It said permitting the production of the requisite academic qualification would defeat the rule that fresh evidence sought to be admitted on appeal should not have been obtainable with reasonable diligence at the time of trial.
In this matter, Malanji has contested the nullification of his election by High Court judge Kazimbe Chenda as Kwacha PF member of parliament on November 19, 2021 due to lack of a Grade 12 certificate and electoral misconduct.
This was in a matter where UPND losing candidate Charles Mulenga petitioned Malanji’s re-election citing bribery and electoral misconduct, among other reasons.
Mulenga also cited the Electoral Commission of Zambia (ECZ) as the respondent in the matter.
At the last sitting on a motion filed by Malanji to produce his Grade 12 certificate before Constitutional Court judges Ann Sitali, Mungeni Mulenga, Margaret Munalula, Palan Mulonda and Judy Mulongoti, the appellant’s lawyer Benjamin Mwelwa pleaded with the court to allow Malanji produce the certificate.
Mwelwa said the court being at the apex in constitutional matters had exclusive power to order for the production of any document and to call witnesses.
He submitted that allowing Malanji to produce a Grade 12 certificate would help the court to arrive at a just decision, whether he possessed the document or not, as prescribed by the law.
But Kasaji’s lawyer opposed an application by Malanji to produce his Grade 12 certificate at appeal stage when he failed to avail the same document to the High Court.
Kasaji said Malanji was attempting to have the matter retried on appeal in order to have a second bite at the cherry when he slept on his rights to prove that he possessed a Grade 12 certificate before the Lusaka High Court.
In her ruling on behalf of others, judge Sitali said the reception of fresh evidence during the hearing of an appeal in the Constitutional Court was exceptional as an appeal should not be a second trial.
“The principle is that for fresh evidence to be admissible it should not have been obtainable with reasonable diligence at the time of trial. That it must also be both significant and credible. This to us is the import of ‘necessity’ and ‘expediency’ in the interest of justice as laid out in Section 25(1)(b),” judge Sitali said. “As Mulenga rightly argued, this Court is exercising appellate jurisdiction over matters determined by the lower court, which is an integral part of the general court hierarchy and is bound by the decisions of the Constitutional Court and the Supreme Court. To assign the provision in the Act a special meaning is not only helpful but it will also not auger well for the system as a whole.”
Judge Sitali said there ought to be a uniform understanding of the provisions.
“We say so alive to the applicant’s suggestion that as the apex court in constitutional matters, we must not be hindered by common law principles in coming to a just decision. Our short answer to this line of thought is that we are sitting as an appellate court,” she said.
The court said the question before it was procedural and not a constitutional question, and that it was at liberty to adopt a procedure which it found to be sound and fair.
“We sit at the top of a system steeped in the common law traditions which include the principle that there must be a finality to litigation, hence the need to restrict the admission of fresh evidence during the hearing of an appeal except in exceptional circumstances. It is a principle that we agree with and have adopted accordingly,” said judge Sitali. “This application has therefore not met the requirements for necessity and expediency in the interest of justice required by section 25(1)(b) of the Act. We find that the notice of motion for an order to produce Malanji’s Grade 12 certificate and to order the attendance of the witness to validate the said certificate has no merit and it is dismissed.”