State Withdraws From The High Court Its Application For Stay Of Execution!
Lusaka – 15th September, 2022.
The Attorney General has withdrawn the application for stay of execution it filed against the ruling that stayed elections.
The State had applied for an order to stay the decision of the High Court suspending by-elections in Kabushi and Kwacha constituencies as it intends to appeal against the ruling.
According to an earlier application filed in the Lusaka High Court, Attorney General Mulilo Kabesha submitted that the court stays the execution of the rulings dated September 13, 2022 in which it granted Mr. Joseph Malanji and Mr Bowman Lusambo their application to suspend the by-elections scheduled for today.
“That I verily believe that if no stay of execution of the impunged ruling is granted, the appeal will be rendered an academic exercise,” Mr. Kabesha stated.
Meanwhile, Mr. Malanji through his lawyers Tutwa Ngulube and Makebi Zulu had opposed the State’s application to refer the matter to the Constitutional Court for determination of constitutional questions.
The State wants the Concourt to determine whether under article 52(4) of the constitution, the High Court can make a determination outside the scope of articles 70 and 71 with regards to qualification of Members of Parliament and validity of nominations, respectively.
Whether regulation 18(7) of the Electoral Process (General) regulations, statutory instrument no.63 of 2016 is consistent with article 52 (4) of the Constitution on issues as to whether a victim of a decision of the returning officer can move the High Court as opposed to another person challenging a nomination, and
And that the reference should operate as stay of proceedings pending determination of the matter by the concourt.
But Mr. Malanji argues that the court gave order for directions and stated that no applications would be entertained after Friday September 9,2022 as time frames for filing of applications had been set in the order of the court.
He said the State’s grounds to refer the matter to the Concourt had already been determined by the High Court in the ruling dated September 13, 2022. He contends that a constitutional reference cannot operate as a stay.
The court will rule today at 16.30hrs whether to grant leave to appeal or whether to refer the case to the ConCourt.
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