JUST BECAUSE ECZ ACCEPTED THE NOMINATION PAPERS DOES NOT MEAN THEY ARE VALID….CAN BE CHALLENGED BY LAW AND EVIDENCE – SANGWA TELLS CONCOURT
CONSTITUTIONAL Lawyer John Sangwa State Counsel, has told the Constitutional Court that although the Electoral Commission of Zambia accepted President Edgar Lungu’s nomination papers, it does not mean that the documents are valid, as that can be challenged by law and evidence.
And the Constitutional Court yesterday rejected an application of admission to the matter by three law professors who have also argued that President Lungu does not qualify to stand as presidential candidates, having already twice held office.
Arguing in support of his petition against Lungu, Sangwa said the PF candidate does not qualify to stand for elections for the third time, adding that allowing him would likely create a situation where one can be in office in perpetuity.
Sangwa has argued that the situation which will be created is that a sitting President can resign a day short of three years, put the Vice-President in office and wait for the next election in order to stand again.
But the Attorney General and lawyers representing President Lungu have insisted that the issue relating to the President’s eligibility to contest the elections has already been settled by the court and that the same matter should be dismissed with costs.
Meanwhile, the Court has set Friday, June 11 as date of ruling in the matter.
Sangwa is in this matter representing Legal Resources Foundation, Dr Sishuwa Sishuwa and Chapter One Foundation who are seeking a declaration that President Edgar Lungu having been elected, sworn into and held office twice is not eligible for nomination for election as President in the election set for August 12, 2021.
President Lungu and the Attorney General are the first and second respondents in the matter, respectively.
When the came up for hearing before a full bench of nine Constitutional Court judges who included; Justices Hilda Chibomba, Annie Sitali, Mungeni Mulenga, Martin Musaluke, Prof Margaret Munalula, Palan Mulonda, Mwila Chitabo, Matthew Chisunka and Judy Mulongoti, Sangwa submitted that President Lungu did not qualify to contest the elections for the third time.
“The first respondent (President Lungu) does not qualify to stand for election for the third time. It is as simple as that. Here is a problem that is likely to be created if at all we accept what the respondents are saying, that it is okay for one to be in the office provided that it is less than three years, it doesn’t count. We are likely to create a situation whereby one can be in office in perpetuity. I can serve in that office, a day short of three years, I resign. It doesn’t count. I can put my Vice President there; wait for the next election I stand again as President. Same again, less than two days, I come back. The drafters [of the Constitution] intended that you hold the office twice. That is, it,” he submitted.
Sangwa further submitted that the fact that the returning officer has accepted one’s papers during nominations does not equate to the said papers being valid.
“A returning officer may accept your nomination but if evidence emerges that you actually do not qualify, that is no bar. You can’t go to court and say ‘but my nomination was accepted by the returning officer, therefore it is a bar’. No, the fact that it was accepted is the reason we are before this court so that the court can interrogate the constitutionality of the nomination. The fact that the returning officer has accepted your papers does not equate to those papers being valid. The validity or invalidity of nomination papers is a matter of both law and fact and beyond the jurisdiction of the returning officer. Only this court can determine that issue,” he submitted.
“The petitioners are not disrespecting the Court’s decision in the Dan pule and [Bampi] Kapalasa cases, no. We have acknowledged that decision and we have come to this court and pointed out why this court should vacate those two decisions. Citizens should be allowed to come as many times as they can before this court. What they have to do is to convince the court why the court should depart from its earlier decision. Where they fail, the court will say ‘we uphold what we said in the earlier decision’.”
But in response, one of the lawyers representing President Lungu, Bonaventure Mutale, State Counsel said they would rely on the submissions earlier filed into court but insisted that the case should be dismissed as the issues were already dealt with by the court.
Another lawyer, Sakwiba Sikota also concurred with Mutale, and asked the court to condemn the petitioners to costs.
“As stated by State Counsel Mutale, these matters were already dealt with adequately by this court not only once in the Dan Pule matter, but a second time in the Kapalasa matter. We are coming [for] a third time on the very same matter. I am aware that this court is shy and slow to condemn a party to costs because of the nature of this court. However, this is a case which the petitioners are well aware has been determined by this court, not once [but] twice before. And counsel who represented the Law Association of Zambia in the Dan Pule case is the same counsel in this matter. So clearly the parties know the history of this matter has been adjudicated upon,” he said.
“How many times will the court be called upon to come and adjudicate on the same matter? Clearly the petitioners’ counsel ought to have known, being an officer of the court, that to accept a brief from their clients in this matter knowing fully well that the issues of the eligibility has been settled by this court, is conduct short of the standard of a lawyer, as an officer of the court.”
Attorney General Likando Kalaluka Kalaluka in his argument said, “Our submission is that the argument by the petitioners is academic and unfortunate because indeed, the period in issue involve two Constitutional regimes. That is to say after January 2016, there was a different way of electing a President. That is, it required 50 percent plus one. Which is different from a single majority of a period before then. There was a running mate after 2016. All these demonstrate two different regimes.”
But in reply, Sangwa argued that it would be a violation of the Constitution to award costs in the matter.
He further argued that the current petition was totally different from the Dan Pule and the Kapalasa cases as it is alleging contravention of the Constitution, whereas Kapalasa and Dan Pule cases was about interpretation.
“This issue was never settled. This is a new matter. The first respondent and the petitioners were never parties to the two cases and the nomination was never an issue. We submit that we have demonstrated that this petition has merit and the reliefs should be granted,” Sangwa said.
He added that no where in the judgements of Kapalasa or Dan Pule cases did the Court declare that President Lungu was eligible to stand in 2021.
After the parties concluded with their submissions, the court reserved Judgement to Friday, June 11.
Earlier, Mutale had brought to the attention of the court that Dr Sishuwa had been making commentaries on the merits of the matter on social media.
“We wish to make certain observations which are pertinent. There are issues that relate the misconduct of one of the petitioners. The second petitioner (Dr Sishuwa) has been at large on social media discussing the merits of this case in very derogatory terms. Scandalising the first respondent and to some extent this court,” he said as he referred the court to one of the articles published on Lusaka Times.
However, after being advised that Sishuwa was not present, the court ruled that it would deal with the matter later.
The court earlier also refused to entertain an application by three professors, Chaloka Beyani, Melvin Mbao and Cephas Lumina who were seeking to be admitted to the proceedings as amici curiae (a friend of the court).
(An amicus curiae is someone who is not a party to a case who assists a court by offering information, expertise, or insight that has a bearing on the issues in the case.)
According to an affidavit in support of notice of motion, their lawyer Musa Mwenye of Messrs Mwenye & Mwitwa Advocates stated that the three were professors of Law with considerable expertise in constitutional law and other areas of law pertinent to the Petition, having taught in these areas at Universities in Zambia and elsewhere.
He added that their in-depth knowledge could be of considerable assistance to the Court.
Mwenye stated that while the trio were all Zambian nationals, they have no personal interest in the outcome of these proceedings but a professional interest in seeing that the Court implements its mandate as ‘guardian of the Constitution’ in a way that promotes the values and principles enshrined in the Constitution, notably, the supremacy of the Constitution, the sovereign will of the people, democracy, constitutionalism, good governance and accountability, as well as allowing the development of the law.
He added that the Constitution also permits the participation of third parties in proceedings before the Court where the public interest is engaged as in this case