Concourt was wrong to say Lungu inherited a term – Chizombe

Concourt was wrong to say Lungu inherited a term – Chizombe

YOUTH ACTIVIST Michelo Chizombe says the Constitutional Court was offside when it relegated constitutional hurdles for Edgar Lungu’s third bid to contest the 2021 general election.

During hearing of a preliminary issue raised by Lungu to have the case dismissed on a point of law, Chizombe’s lawyer Micheal Moono said the Constitutional Court was wrong when it decreed that Lungu did not serve a full term when he first assumed the office of president and that the same term was inherited from late President Micheal Sata.

In this case, Chizombe is questioning Lungu’s eligibility to contest in the 2021 general election and future elections after being sworn into the office of President twice

Chizombe who has cited Lungu, the Electoral Commission of Zambia and the Attorney General as respondents in the matter indicated that Lungu contravened the constitution when he participated in the August 12, 2021 general elections.

Lungu raised a preliminary issue asking the Court to dismiss the matter on reasons that its mandate over his eligibility had expired as it had already decided upon his case.

Submitting before Judge president Margaret Munalula, her deputy, Arnold Shilimi, Ann Sitali, Mungeni Mulenga, Palan Mulonda, Martin Musaluke, Mathew Chisunka, Judy Mulongoti, Mudford Mwandenga, Maria Kawimbe and Kenneth Mulife, lawyer representing Lungu, Makebi Zulu said Chizombe’s petition was an abuse of Court process.

He said Chizombe shares the same view with the Legal Resources Foundation Limited, Historian and political commentator Sishuwa Sishuwa and Chapter One Foundation Limited who petitioned Lungu for abrogating the law by filing in his nomination papers as the PF presidential candidate in the August 12, 2021 general elections after being sworn into office as President twice.

Zulu said Chizombe cannot claim that he is seeking new reliefs by relying on a dissenting judgement by professor Munalula when she pronounced that the term that Lungu completed on behalf of Sata was a full term although it lasted for 19 months.

“They are saying the judgement of the majority of this court is wrong and it is that of the single judge which is correct. There is record estoppel after the court determined the matter,” Zulu submitted.

“The court determined the issue of eligibility with finality in the previous cases. The doctrine of Res judicata kicks in. Article 52(4) of the Constitution says any person requiring to challenge the nomination of a person ought to do so within seven days.”

Zulu said Chizombe has raised the dust three years after it was settled and the issues to do with Lungu’s eligibility were dealt with to finality and it is incompetent to ask the same questions.

“To rely on a dissenting judgement to move this court to want a review of this court is itself an abuse of the Court process. There must be a finality to matters and judicial decisions must be accepted as correct,” said Zulu.

In his response Moono said Zulu had misconstrued Article 101(4) of the constitution by saying the matter ought to have been brought in 2021 as the same relates to nullifying the election of the president elect.

“If the petitioner wanted a nullification of the winning candidate’s election they would have done so within seven days. The argument that the petition it is time bound is legally flawed,” Moono said.

He argued that the Court only loses its authority on a matter when all the pertinent issues have been extensively dealt with.

“They can’t say the Court is functus officio when we have just begun. Functus officio only applies when an issue is raised in the same action where the court has already rendered judgement. The preliminary issue is without merit,” Moono argued.

“The petitioner has not been before this court he certainly cannot be said to be re-litigating and cannot be guilty of abuse of court process. For Res judicata to be considered, the parties in the current case must be the same as the parties is the case where judgement has been concluded.”

He said the Concourt omitted to combine Section 2 and 7 of cap 1 of 2016 in determining which constitution was applicable to the transition of presidency during the two constitutional regimes.

“Had this court examined the correct effect of section 2 and 7 read together it would have arrived at an inescapable decision. We can’t say Res judicata to a judgement Who’s legal soundness we are intending to impugn(challenge),” Moono argued.

“The legal Resource Foundation judgement was wrong, to raise Res judicata of the judgement we intend to impugn is contradictory and legally flawed.”

Moono added that the rule of Res judicata is not an absolute bar to the court to determine Chizombe’s case, as it is erring for lawyers to guide clients and the public at large on judgement rendered without due regard to the law.

“It is our duty to ensure that law is applied correctly. The petitioner wants to impugn the judgement that Lungu is relying on to say the case is Res judicata (already decided upon),” said Moono.

The Electoral body indicated that it would not make any viva voce submissions but would rely on the documents it had already filed in Court.

Solicitor general Marshal Muchende asked the Court to determine the matter on its merit and not at preliminary stage as it has always guided

“You are not about to change your DNA of not determining matters at preliminary stage in this case of public interest. The preliminary issue is misconceived at law and demonstrates misapprehension on the fundamental principles of Court,”he said.

Chibesa Mulonda argued that the issues raised by Chizombe have not been decided upon as no final decision was made regarding Lungu’s eligibility pursuant to Section 2 Act no.1 of 2016.

He said the Court in the Bizwayo Nkunika vs Lawrence Nyirenda case the Court made it clear that its authority bestowed on it by Article 128 of the Constitution in so far as it relates to interrogating the violation of the constitution cannot be ignored.

Micheal Mutwena argued that the principle of Res judicata does not apply to a pure question of law and the rule of procedure cannot supersede the law of the land.

However, Zulu argued that Lungu is being troubled the fifth time based on the same facts, interest and legal issues of his eligibility.

“It is in the interest of the State that there should be an end to litigation. The Bampi Kapalasa case, legal Resources Foundation and other cases were considered as re-litigation not considering that the parties were different with those in the Dan Pule case,” said Zulu.

“The petitioner has told you that you were wrong in your three other decisions meaning they had recourse to your decisions and simply do not agree with you. There cannot be a challenge to the nomination now, that horse has already bolted.”

Jonas Zimba said there was no different cause of action before Court.

“There is record estoppel, fact estoppel and the matter cannot be re-litigated.The subject matter is the same with other cases and the defense of Res judicata should succeed. Five matters against one person (Lungu) why this person?,”said Zimba

Professor Munalula reserved ruling for Juy 8 at 09 :00 hours.

After the session Lungu trotted to the fence to wave at a crowd that gathered outside the Court premises to offer him solidarity…https://kalemba.news/…/concourt-was-wrong-to-say-lungu…/

By Mwaka Ndawa

Kalemba