UPDATE ON PETITION CASE IN COURT: Concourt joins Attorney General to Lungu eligibility petition
ATTORNEY General Likando Kalaluka has argued that the declarations being sought by the Legal Resources Foundation limited, and two others that President Lungu, having been elected, sworn and held office twice is not eligible for nomination and for election as president in the August 12 general elections, is an attempt by them to illegally abrogate the Constitution.
This is in a matter where the Legal Resources Foundation limited, Historian and political commentator Sishuwa Sishuwa and Chapter One Foundation limited have petitioned President Lungu in the Constitutional Court for abrogating the law by filing in his nomination papers as the PF presidential candidate for the August 12, 2021 elections after being sworn into office as President twice.
The petitioners’ contention is that the Head of State has been sworn into office twice because he was not a vice-president of the country when he concluded late Presindent Micheal Sata’s term following the latter’s death as ruled by the Constitutional Court in the Dan Pule case.
They want a declaration that President Lungu’s nomination for election to the office of Presindent in this year’s election contravenes Article 106(3) of the constitution and the said nomination is null and void.
The petitioners are further seeking an order of certiorari that the the nomination papers filed by President Lungu with the returning officer of the Electoral Commission of Zambia and all documents in support of his nomination for the election to the office of Presindent in this year’s elections be removed forthwith from the Constitutional Court for purposes of quashing.
When the matter came up for hearing of an application for joinder by the state, Constitutional Court judge Mungeni Mulenga said the case would be heard because the Legal Resources Foundation limited filed the notice of discontinuance pursuant to Order 21 Rule 2 of the rules of the Supreme Court contrary to what was provided for in the Constitutional Court Rules.
Constitutional lawyer John Sangwa who is representing the petitioners told the court that there was no respondent before court as President Lungu was not served the documents.
Justice Mulenga told Sangwa not to interject because there was a notice of appointment of advocates on the record.
However, Lubinda Linyama, who is representing President Lungu, told the court that he did not file a formal notice of appointment because he was engaged last night and he learnt that the matter was coming up today.
Justice Mulenga ordered that she would consolidate the Legal Resources Foundation’s petition and Sishuwa and Chapter One Foundation limited as they were drafted in similar wording.
“I will consolidate the two matters pursuant to Order 9 Rule 18 of our Constitutional Court rules that empowers the court on its own motion to order joinder in fitting cases so that both will be heard at the same time,” said justice Mulenga.
“The Legal Resources Foundation limited was trying to discontinue the matter but they will have to look at what our order, Constitutional Court rules provide and make the necessary application, so it will still be heard whichever case.”
She said the Legal Resources Foundation was at liberty to discontinue the case whenever it feels like.
Justice Mulenga further ordered that the Head of State will not be served the legal process by way of advertising in the media because there was a lawyer who had instructions to receive documents on his behalf.
At this point, Kalaluka made an application to joined to the proceedings, claiming that there was an attempt by the petitioners to contravene the constitution because of the reliefs they were seeking.
Sangwa opposed Kalaluka’s application saying the latter had to demonstrate that his presence was necessary to enable the court adjudicate on the matter.
He said the Head of State was not before court as President but as an individual because he was a candidate who was defined by the Constitution as a person who had offered himself for nomination for the purpose of contesting elections.
“The issue is between private individuals, these are special rights conferred on citizens by Article 52(4) of the Constitution. It has nothing to do with the Attorney General,” Sangwa said.
He argued that the office of the Attorney General was not at large in its conduct and including him to the proceedings would be a violation of the constitution because Presindent Lungu was already represented by law firms.
“What we have is equality of arms; the petitioners are represented by private practitioners and so is the respondent (President Lungu). There is nothing that has been disclosed to show the extent to which the Attorney General is likely to assist this court. The involment of the Attorney General is likely to be highly prejudicial to the petitioners,” Sangwa argued.
Sangwa stressed that there was a chance of relitigating issues that were raised in the Dan Pule case by the Attorney General.
He said it was for President Lungu to justify the legality of his nomination as a candidate and private individual and not Kalaluka.
He said the State’s resources cannot be abused in the case.
Sangwa further submitted that the argument that the Attorney General’s joinder was in public interest because President Lungu had a huge following does not hold water as he had not defined what amounts to public interest for him to be joined to the proceedings.
Kalaluka claimed that his application was not to be joined as a party to the proceedings but as an advocate for the state.
He said the petitioners’ acknowledgment that the issues in the matter were the same issues determined in the Dan Pule case was the reason the state under Article 2 of the constitution wants to exercise its right to prevent the constitution from being abrogated.
Kalaluka insisted that the issue raises public interest and public policy consideration which required him to be joined and that the issue was not about equality of arms but making submissions to help the court arrive at a just decision.
Judge Mulenga allowed Kalaluka to be joined to the proceedings as the second respondent pursuant to Order 5 Rule 4(b) of the Constitutional Court rules.
Jonas Zimba and two other lawyers also placed themselves on record as the Head of State’s advocates.
Meanwhile, Lusaka lawyer lewis Mosho has applied to be joined to the proceedings.
In an affidavit in support of ex-parte summons for an order for leave to be joined to the proceedings as an interested party, Mosho stated that the petitioner’s petition was an invitation of the court to depart from it’ earlier interpretation of the law surrounding the subject matter which is not only an attack on the constitution but also on how the court carries out its Constitutional mandate, a situation which calls for the defense of the Constitution.
“I intend to raise important Constitutional questions that have arisen in this matter for determination by this court as the issues raised in the petition have already been settled by the court,” said Mosho.
The matter comes up on June 8 and 9 for hearing.