Don’t give Lungu powers over eligibility proceedings – Chizombe

Don’t give Lungu powers over eligibility proceedings – Chizombe

YOUTH activist Michelo Chizombe’s Lawyer Micheal Moono urged the Constitutional Court not to allow former president Edgar Lungu to have dominance over his eligibility proceedings with his theatrics aimed at delaying the case.

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Moono who opposed to Lungu’s application to file a motion for recusal against three judges of the court, said allowing Lungu to file the application out of time would grant him supremacy over the proceedings, and he will be calling the shots on when to proceed and stop,  which is wrong.

This was after Lungu’s lawyer Makebi Zulu failed to meet the deadline set by the Court to file an application for the three judges to disqualify themselves from handling the case.

Lungu had lodged a complaint against Court President professor Margaret Munalula, her vice Arnold Shilimi and Mapani Kawimbe alleging bias.

He claimed that the three were bent on executing President Hakainde Hichilema’s plan to prevent him from contesting the 2026 general elections, owing to their failure to declare interest due to their association with the President.

The Constitutional Court directed Zulu to file the application by 14:00 yesterday.

When the case resumed in the afternoon Zulu indicated that he did not manage to file the application citing limited time, traffic jam and loadshedding.

He said the drafting of the requisite documents requires research and it is impossible for an application to be drafted, filed and served within an hour.

“The nature of the application itself requires attachment of evidence for example; Lungu alleges a close attachment between the vice president of the Court and President Hakainde Hichilema. The allegation of bias or perception thereof would have to be proven as a matter of fact,”he said.

“The closeness of the relationship requires documentary evidence that requires to be accessed through a search at PACRA or indeed through relevant bodies.”

He said on the part of judge Munalula he needed to do a background research.

Moono raised an objection arguing that Zulu cannot give evidence from the bar.

“To deliberate what that allegation is from the bar to meet his deadline, is the same thing as giving evidence from the bar,” he said.

“There is no room for anyone to interrogate or examine such allegations in the absence of nothing that has been filed. This should come in his application or submission and not from the bar. The allegation that he has advanced must be expunged from the record.”

Zulu said he was glad that Moono understands the predicament he was in and the allegations of bias cannot come from the bar but ought to be made in submissions.

“We are giving examples why we failed in an hour because there are issues that need to be attached to the affidavit before we file,”he said.

Judge Munalula directed that the examples advanced will not be expunged from the record. 

Zulu further requested that he be allowed to file a formal application for recusal out of time.

Lawyer representing the Electoral Commission of Zambia (ECZ), Mukunsa Bwalya said the matter commenced a year ago and the commission was ready to proceed.

Attorney General Mulilo Kabesha said parties need to go to court prepared.

“When we come to court we should always be ready. Assuming adjustments will be granted willingly should not be our cup of tea. We were in Court in June, and the judges were on the panel. The application for recusal should have been done a long time ago,”he said.

“Coming to court with an agenda under the armpit, you don’t take it for granted that whatever you ask for the court will give. I assumed Lungu already had the documents and; those examples maintained on the record will show that Lungu was not ready to proceed.  Time is of essence to this court.”

Solicitor General Marshal Muchende said the courts world over in the commonwealth jurisdiction take offense at dilatory tactics.

He said Lungu had all the time to prepare himself and the material forming part of his allegations, but he opted to sleep on his rights until the eleventh hour, which is a dilatory of Fabian tactics designed to derail straight forward proceedings.

“This court must not entertain the Fabian tactics going on in the matter. It cannot be that after bringing the court to notice that Lungu has serious allegations of bias against eminent men and women who were appointed on merit who swore to uphold the constitution upon swearing to be judge, would make such allegations without evidence,”said Muchende.

“The statement that allegations against the court president requires diving into history, why do it now when the matter was reserved for hearing? We pray that the matter be dismissed with the content it deserves.”

Moono argued that Lungu’s application is an afterthought and if the concerns of bias were real, he would have raised them immediately the court convened itself as a full bench.

“To wait deliberately until the moment of hearing suggests that; there could be other considerations which are hoped to be achieved, by delaying the hearing of this petition,”He said.

“To allow Lungu to file the application would voluntarily give him the reigns to the proceedings to decide when do we go, when do we stop and that cannot be allowed.”

Moono said the proceedings were of public importance not only to the parties before court but the nation at large and court must be seen to be resolute in the discharge of its constitutional functions without swinging to the whims and caprices that pleases one party in the matter.

“The application is to file out of time to delay the commencement of hearing of this petition my argument is that, the first respondent must not be given additional time to go and file this application,”said Moono.

“The court must not entertain delays. Lungu must have come to court ready to proceed with hearing of the petition. He has known about the hearing of the petition since August 14 when the cause list was circulated.”

Zulu said the application relating to the recusal of  judges must be heard before the court proceeds.

“The court being a court of procedure requires that the same must be followed in filing applications. You have granted us leave but we are saying the time given is not enough. To suggest that the allegation of bias does not exist, is a mockery and would be unjust,” said Zulu.

Judge Munalula said since the application bordered on her recusal together with two of her colleagues, the Court would grant the application.

She ordered that the same be filed by Monday 14:00 and should be served on the parties the same day.

“The court will hear the application on Thursday at 09:00 hours, The court will not entertain any further delay in the matter,”ordered judge Munalula.

By Mwaka Ndawa

Kalemba September 28, 2024.