Source :Kwacha Celebrity
Association of Zambia (LAZ) president Eddy Mwitwa president has clarified the rulings coming from the Constitutional Court in which it is overturning the judgments of the High Court.
At the centre of the controversy is the election petition judgments of Lusaka Central Member of Parliament (MP) Margaret Mwanakatwe and her Munali counterpart Nkandu Luo in which the Constitutional Court overruled the Judgment of the High Court
The Constitutional Court maintained that both Prof Luo and Ms Mwanakatwe were duly elected law-makers.
Mr Mwitwa who was guest of honour at the Southern African Centre for Resolution of Dispute (SACCORD) launch of the Zambia Human-right Defenders Network (ZHRDN) said in an interview that the Constitutional Court comprise a minimum of three judges who may assess the law and fact differently from a lone judge in the High Court, saying this is what gives an impression that the Constitutional Court overturns judgments of the High Court.
“It is part and parcel of what we have decided as Zambians to make as our judicial system. The judicial system we have for the superior courts, the High Court is the first court of instance but again it only has a mandate for certain matters, matters pertaining to the Constitution go to the Constitutional Court. But if you talk of election petitions, if the election petition starts from the High Court, the Constitution says if anybody is not happy with the decision of the High Court, they can go to the Constitutional Court, remember when the Constitutional Court is sitting, it requires a minimum of three judges but a judge in the high court will sit alone. So, it is possible that when the judges sit, they may look at facts and the law differently from the way a single judge in the High Court could have looked at that particular case. It is things like that, that tends to give an impression that the Constitutional Court is overturning judgments of the Constitutional Court,” he said
And Mr Mwitwa refused to comment on the qualification of the Constitutional Court judges led by Hilda Chibomba.
“I can’t comment on that. All I can say is that we have the Constitutional Court that was appointed by the Republican President using his powers vested in him by the Constitution of the Republic of Zambia,” he said.
According to Constitutional Lawyer John Sangwa, the Constitutional Court Judges are not qualified to preside over matters because they have not practiced law for at least 15 years.
- Meanwhile, United Prosperous and Peaceful Zambia (UPPZ) leader Charles Chanda said the ruling Munali Constituency Member of Parliament(MP) and Higher Education Minister Nkandu Luo was duly elected is a very bad precedent set by the Constitutional Court.
Mr Chanda said the Nkandu Luo petition judgment has shown that the Constitutional Court judges condone political violence in the country.
“Whilst it is understood and appreciated that the Judiciary is independent, it is not political and it serves the country in all fairness, unfortunately enough, the Zambian Judiciary is setting a bad precedence when it comes to violence. It is now clear that political parties that use violence feel they have the support of the Judiciary and this is scary because as we get to 2021 elections, those hooligans, those cadres will now do more harm because they know that they have Constitutional Judges that condone violence.
He said the Constitutional Court is expected to deliver credible judgments.
“We are not saying that judgment should have gone the other way but the Constitutional Court has a mandate to ensure that when they give out judgment, they should bring sanity in the society. They are not there to please the executive and that is the only thing that UPPZ is worried of…that it is legal in Zambia to use violence because the highest court condones the evil act and sees nothing wrong in that and I think for the people of Zambia, our eyes need to be opened that we have institutions that will say,’ there is nothing wrong with violence’. Are we sure that Zambia is in safe hands?” the UPPZ leader questioned.
This is in the case in which Prof Luo was challenging the nullification of her seat by High Court Judge Edward Musona after the court found that the ECZ officials failed to properly handle the electoral process and did not provide the Gen 12 forms to 14 polling stations and electoral irregularities and rampant acts of violence as reason for nullification of the Munali seat.
Judge Musona also ruled that Prof Luo had an undue advantage in the election because she was a serving Minister at the time of election and used public resources especially that the Constitutional Court had ruled Ministers pay back to the treasury the monies they had accrued during that period.
But in delivering his judgment on November 16, Justice Mulembe cited Section 97 (2) which states that the election can only be nullified if the petitioner proves to the required standards that the corrupt practices were committed with the full knowledge and consent of the candidate.
The section further states that the petitioner must prove that the widespread violence affected the majority of the voters in electing the candidate of their choice.
In addressing ground one on the allegations of the Appellant abusing government resources by using government vehicles, the court has stated that by law a person shall not use government resources during campaigns but the burden of proof lies on the petitioner to proof the allegations, the court has reserved the lower Court’s decision on that finding because there is no evidence to show that Prof Luo used government resources during her campaigns.
On allegations on the use of the government vehicles by Prof Luo, the court refused to support the evidence because Ms Mwamba failed to adduce evidence that Prof Luo abused government resources as she failed to recall the government vehicle and not having details of the Driver who was driving the Appellant
The court says it is not in dispute that she was a cabinet minister but it is not for a fact that the use of her salary during her campaigns affected the election as it has been established that there was no evidence to show that she used government vehicles during her campaigns as the petitioner failed to adduce evidence that Luo abused government resources as she failed to recall the government vehicle and not having details of the Driver who was driving the Appellant.
In addressing the issue of the violence in Mtendere, it is not in dispute that violence erupted in Mtendere were the UPND were affected but what must be ascertain in whether Prof Luo sponsored the violent cadres in Mtendere who attacked the UPND campaign Bus.