By Brig Gen Godfrey Miyanda
The misleading and dangerous statement by Mr Tutwa Ngulube, the PF Legal Advisor that “the inauguration of President-Elect Lungu should go on, with or without the petition” (Lusaka Times date 19th August 2016) must be challenged and corrected. Mr Ngulube is a lawyer and an officer of the Court who must be careful not take advantage of ignorant citizens by deliberately inciting them. At a time such as this wisdom is expected and is a better quality to pray for.
MISLEADING DECLARATION: The statement is misleading because it is not the law; it is dangerous because it has sown a rebellious seed among the public, especially PF cadres, to get them to be ready to rise up in the event of an adverse decision by the Court. The argument that there is no provision in the amended Constitution under which the swearing in of a President may be stopped is patently flawed. There are other provisions and precedents which militate against his generalised conclusions. In addition to the provisions under the Amended Constitution there are also Court Rules that may be used to augment an argument. For instance the English Rules of the Supreme Court (White Book 1999), which are still applicable in Zambia, guide first that petitions are not pleadings (as opposed to, say, a Statement of Claim) and secondly that they are to be dealt with according to the specific subject matter brought before the Court and the applicable Rules of Court. For instance the handling of a petition under liquidation and remedies thereof is different from that for dissolution of a marriage. I thus challenge Mr Ngulube to indicate which law petitioners of elections in Zambia should follow other than the Electoral Law and its Rules and Regulations. I contend that the holding of the presidential election on 11th August 2016 triggered the petition, which stands in the way of the swearing in until it is resolved. While the Constitutional provisions are the anchor of the case, it is the electoral law that must be applied to resolve any electoral disputes. What has happened is to remove the jurisdiction of the Supreme Court as the court of first instance for presidential elections and transfer the jurisdiction to the Constitutional Court; everything else remains the same: the law, the procedures, the Rules and the reliefs and/or remedies. Mr Ngulube has not only misled himself, but has misled his cadres and the general public. His dangerous statement is another Armageddon for it has sown a rebellious seed among the public, especially PF cadres to get them to be ready to rise up in the event of a decision by the Court that does not agree with Mr Ngulube’s campaign message!
There are several reasons why an election petition results in nullification. The Learned author Lord Halsbury, in his Halsbury’s Laws, has explained this issue very well in his treatise on elections. He has listed and explained the grounds for petitioning, which are many and varied. They include bribery, treating, corrupt acts, illegal practices, publishing false statements in respect of other candidates, undue influence on voters by poorly timed but numerous charitable or philanthropic acts, interference with public meetings and, more importantly, breach of the electoral law as to elections. All these are on our statute books today, and are reinforced by the Amended Constitution assented to on 5th January 2016. Of course evidence is always demanded by the Courts!
DANGER IN THE AIR: Halsbury’s conclusions are different from lawyer Ngulube’s, because he says that if one provided credible evidence then such an election should be avoided (another term for nullification, which term is also found in our Electoral Act); to avoid connotes that the candidate cannot be sworn in. If our Electoral Act is put side by side with Halsbury’s we shall find that it is a carbon copy. I call upon Mr Ngulube to observe his own advice that “let us all wait for and respect the Constitutional Court to determine the matter…”. I agree, but that is Doublespeak for he should have not made his flawed statement in the first place. In our polarised atmosphere it is dangerous to mislead the public. I am sure that, as a lawyer, Mr Ngulube remembers the case of a former Chief Justice of Zambia, the Learned Mr Justice James Skinner, who was hounded out of office by party cadres and run away to Malawi. Mr Ngulube’s flawed arguments may tend to incite naïve members of the public. He has just been elected to Parliament; the Kabwe voters respect him and will likely believe whatever he says, even flawed legal arguments.
I advise Mr Ngulube to discard his blind loyalty but behave as a new broom, providing good leadership. The best and urgent advice he should have given was to his Party President, the President-Elect, to assist him to respect the constitutional transition in the Amended Constitution that he voluntarily assented to. Clearly Mr Ngulube has not carried out a proper job of advising his Party President. Even if his President was likely to ignore his advice as he has been doing with the Attorney General’s, Mr Ngulube should have tendered his advice and be vindicated later. It is dangerous to seek public support in order to become popular.
Although the Secretary to the Cabinet has belatedly called off the swearing in ceremony, much harm has been done, whose final chapter we may not predict. Let us pray that our citizens will not take the law in their hands, when the decision of the Constitutional Court does not go their way as happened in the James Skinner incident. Mr Ngulube, the ball is in your court to pre-empt the undesirable reactions.
A CONCERNED ZAMBIAN
[21ST AUGUST 2016]