HAS THE TIME FOR HIGH COURT TO DELIVER JUDGMENT ENDED ON 20TH SEPTEMBER?
The country is being exposed to a narrow argument by those who don’t want the Lusaka High Court to deliver its Judgment that the 21-days’ time for hearing the nomination petition filed by Bowman Lusambo and Hon Joseph Malanji has lapsed. They make reference to the 2016 Presidential Petition involving Mr. Hichilema and Geoffrey Mwamba.
But those advancing this narrow argument forget one thing about that 2016 Presidential petition: the judgment itself was delivered outside the 14-days set by the constitution, and there was nothing wrong with that.
The facts in the 2016 Presidential Petition were that the 14-days for hearing the petition had ended on 2nd September, 2016. The lawyers had not presented the petition at the close of those 14 days. The Court delivered a judgment on 5th September, 2016, which was the 17th day i.e. 3 days outside the 14 days.
In the case before the High Court, both sides have presented their case and the hearing was conducted and concluded within the 21 days as required by Article 52(4).
There is no requirement in Article 52 that the nomination petition should be determined within the 21 days which wss meant for the hearing. The Court must simply close the hearing at the end of the 21 days and proceed to make a determination, that is, a judgment, thereafter.
Nowhere in the law does it require the judgment to be delivered within 14 days for a presidential petition, or 21 days for nomination petition, or 90 days for election petition for Members of Parliament. It can be delivered at any time as long as the hearing took place within the timeframe provided.
This is the reason why Bill 10 wanted to cure this problem by introducing the word, “and determined” wherever the constitution says a petition shall be heard within a certain period.
Was the Court of Appeal right to make a blanket statement that the 21-days came to a halt when the Court stopped further proceedings of the High Court? I don’t think so. The time keeps running and cannot be stopped from running.
But the case before the Lusaka High Court has nothing to do with the hearing. The hearing was already done within the 21 days, even if the days came to an end on Tuesday.
The High Court still remains under an obligation to deliver a judgment after the end of the 21 days just as the Constitutional Court delivered its judgment outside the 14 days. Litigants are entitled to a judgment at the end of the hearing.