By Mwaka Ndawa
LAWYER representing losing UPND candidate for Kwacha Constituency Machayi Kasaji has opposed an application by Joseph Malanji to produce his grade 12 certificate at appeal stage when he failed to avail the same to the High Court.
Kasaji said Malanji is attempting to have the matter retried on appeal in order to have a second bite at the cherry when he slept on his rights to prove that he possessed a grade 12 certificate before the Lusaka High Court.
In this matter, Malanji has contested High Court judge Kazimbe Chenda’s nullification of his election as Kwacha Constituency member of parliament on November 19, 2021 due to lack of a grade 12 certificate and electoral misconduct.
This was in a matter where UPND candidate Charles Mulenga petitioned Malanji’s re-election citing bribery, electoral misconduct, among other reasons.
Mulenga also cited the Electoral Commission of Zambia as the respondent in the matter.
Judge Chenda said Malanji failed to produce cogent evidence to support his assertion that he possessed a grade 12 certificate on August 12, 2021 neither did he prove in his answer to the petition that he possessed the requisite academic qualification nor was it produced by the returning officer.
But Malanji argues that judge Chenda erred in law and fact when he held that his election was void on account of eligibility.
He said the learned trial judge erred in law and fact when he held that he did not possess a grade 12 certificate when in fact he did.
When the matter came up for hearing on a motion filed by Malanji to produce his grade 12 certificate before Constitutional Court judges Ann Sitali, Mungeni Mulenga, Margaret Munalula, Palan Mulonda and Judy Mulongoti, the appellant’s lawyer Benjamin Mwelwa pleaded with the Court to allow Malanji to produce his grade 12 certificate.
Mwelwa said the Court being at the apex in constitutional matters, it had exclusive power to order for the production of any document and to call witnesses.
“It’s on that premise that we have knocked on the doors of this court that it is extremely necessary and appropriate in the interest of justice that Malanji be allowed to produce his grade 12 certificate notwithstanding the election principle that whoever alleges must prove his allegations,” Mwelwa said.
He submitted that allowing Malanji to produce a grade 12 certificate will help the court to arrive at a just decision whether he possesses the same or not as prescribed by the law.
“As officers of this court, we have a solemn duty to place any evidence or document which may help the court to dispense justice. We crave the indulgence of this court to order the production of the grade 12 certificate,” said Mwelwa.
Malanji’s other lawyer Joseph Chirwa submitted that the court had power to order production of a document which was not produced in the court of first instance as well as to order a witness to offer evidence on appeal before court.
“The caveat is that such an order must be done in the interest of justice as the law under Section 25 (1)(b) of the Constitutional Court Act no. 8 has put the Court to test to determine whether it is in the interest of justice,” Chirwa said.
“The court will arrive at a sound decision to determine whether the appellant has a grade 12 certificate or not upon its production. The production of the same will satisfy the test of expedience.”
He said election petitions are matters of public interest as over 80,000 constituents in Kwacha Constituency are eager to know if Malanji possesses the requisite academic qualifications.
“The constituents cannot be subjected to an unnecessary by-election when Malanji possesses a grade 12 certificate. We pray that the court allows us to produce the same,” prayed Chirwa.
But Kasaji objected to Malanji’s motion to produce the school certificate at appeal stage.
He said though it is not in dispute that the court has the power to order the production of evidence and call witnesses, the appeal was not a proper case for the court to exercise such discretion.
“We will be saying that the court erred in law when it held that Malanji did not possess a grade 12 certificate and it will be unfair on the lower court because the grade 12 certificate was not produced before it and never
formed part of the record,” Kasaji said.
“If the motion is allowed, we will be retrying this matter on appeal. Having failed to produce the certificate he seeks to produce now, the appellant has realised that it is important because the judge referred to it in its decision.”
He said Malanji opted to mount a legal technicality when the issue was raised.
“This is not a proper case for the court to allow Malanji to produce the documents he seeks to produce as he is attempting to retry the matter on appeal and have a second chance,” insisted Kasaji
Bob Musenga and Mukunsa Bwalya who were representing ECZ said they would rely on the court’s direction.
In reply, Mwelwa said his client had difficulties to comprehend Mulenga’s lawyer’s argument that the school certificate cannot be produced on appeal because it was not produced before the High Court.
He said Kasaji had not referred the court to any provisions of the Constitutional Court Act no. 8 which mandates the court to order production of the certificate whether it was produced in the lower court or not as long as it was in the interest of justice.
Chirwa argued that there was a reason the legislature put up section 25(1)(b) to allow the production of documents on appeal even if they were not produced at the court of first instance.
“If the court allows the production of the grade 12 certificate then the case will come to an end. The production of the document will not embarrass the court below but vindicate it if at all there is no grade 12 certificate,” said Chirwa.
The court has reserved ruling for February 24.