ELECTIONS WERE STAYED BY THE HIGH COURT, DEAL WITH THE CONTEMPT THAT ECZ HAS SHOWN- COURT OF APPEAL
“Any election taking place will be illegal”
Lusaka- 20th October 2022
The Court of Appeal has observed that the Kabushi and Kwacha elections were stopped by the Order of the High Court.
The Court also affirmed that the Constitutional Court also recognized that the parliamentary by-elections were stayed.
The Court emphasized that what the Court stopped were the proceedings and not the court orders that were issued by the High Court.
The Court also stated that lawyers (for Malanji and Lusambo) must pursue contempt proceedings.
The Court of Appeal also clarified that there were dealing with the specific matter of appeal by the Attorney General on an interlocutor matter.
The Court also stated that an administrative instruction by the Chief Justice to adjourn matters such as when the Law Association of Zambia is holding an annual General Conference is normal.
The Court therefore adjourned the matter to next week Friday, 28th October 2022.
VERBATIM
Court of Appeal
20th October 2022
Final Sitting.
Attorney General Vs Bowman Lusambo and Joseph Malanji
JUSTICES SITTING
Judge Justin chashi
Judge Mwiinde Siavwapwa
Judge Kelvin Muzenga
ABSENT; ATTORNEY GENERAL, SOLICITOR GENERAL, ADVOCATES
Tutwa Ngulube; Your honour there is no formal communication from the Attorney General, there is no document filed to show their absence.
They have opted to stay despite knowing procedures of how to inform.
Judge; We have seen a copy of the letter written by the Acting Chief Justice granting authority to the effect that the Attorney General be excused between 19th October 2022 to 21st October 2022.
This matter is also in public domain.
Judge passes said letter to the lawyers for the respondents.
Tutwa Ngulube; it’s also in public domain that while this matter is being adjourned, the second appellant (Electoral Commission of Zambia) whereas this court and the High Court stayed the elections.
The question will be that any election that will be held will be in direct contravention with the court orders and the Constitution.
What will be the fate of these proceedings if the second appellant proceeds to elections despite the court directives on the matter.
This has potential to create a perception that the reason for the adjournment is to ensure that the elections take place and render the view that courts have no power.
Without any order, we wish the court to pronouncements itself whether the second appellant can proceed to hold elections.
We therefore pray that the election due tomorrow be stayed until the matters before court are resolved including the application for contempt of court against 3 ECZ Commissioners and the request for constitutional reference.
I beseech the court to protect the proceedings of this court and the entire Judiciary that the elections be stayed.
HON. MAKEBI ZULU
My Lords, I am extremely worried. We have rules that regulate court proceedings.
Can a party to a court matter apply for an adjournment to the Chief Justice against the independence of judicial officers conducting trial.
JUDGE MUZENGA intervenes
The Chief Justice in the past has adjourned cases before that lawyers will be absent attending the LAZ AGM.
MAKEBI ZULU- In the matter where there is public interest, I am not a spokesperson for the Law Association of Zambia.
This Notice says a workshop will be held. A formal application for an adjournment should have filed before this court.
JUDGE MWIINDE SIAVWAPWA
It’s a general statement from the Chief Justice, it covers all cases not only this matter.
MAKEBI ZULU
We hold that this matter is of great public interest. Which matter should the AG take interest? A workshop or a matter that hinges on the respect of the Judiciary and the
JUDGE MUZENGA
Why are you seeking another stay when there is a High Court Orders to stay the elections.
We should be looking at contempt proceedings.
A stay of election is there.
MAKEBI ZULU
Our position is that the stay of proceedings by the Court of Appeal doesn’t mean that the stay of the High Court subsist.
JUDGE CHASHI
We are not part to the stay. We have nothing to do with the stay.
JDUGE MUZENGA
Let’s not mix the issues. The matter is here for interlocutory reference. We have nothing to do with the main issue. Further constitutional reference has to go to the Higj Court.
We will not add confusion to confusion.
We sympathize with the situation.
MAKEBI ZULU
We get comfort that this court has also recognized that a stay of the elections is still in force. Our consolation is that this court has recognized that a stay of the elections exists and that we now have to deal with the impunity of the second appellant to proceed with elections.