By professor Michelo Hansungule
It is quite interesting that South Africa has taken a very principled position on the developments in Zambia culminating in the illegal inauguration today. The inauguration doesn’t really matter because it is illegal. Edgar can go ahead and please himself with his self-coronation. No amount of noise will change the fact that it is illegal and it sets a dangerous precedent to the rule of law and democracy in and outside the country. I must praise South Africa for the key low she has taken in order to recognize that none of the shenanigans taking place in Zambia would take place were this South Africa. With the Constitutional Court of South Africa so irritatingly safeguarding democracy, how would a judge or for that matter president do what is going on in Zambia currently? As the coronation takes place, there are pending cases against it in courts of law. Professor Muna Ndulo has ably demonstrated how this cannot happen in a normal functioning state, but did I forget something? Yes, again, Ndulo has quite correctly observed that Zambia is now in the category of a failed state.
n Article 104 (3) of the Constitution quite clearly states that the Speaker of Parliament shall act as president immediately a petition to challenge the Electoral Commission’s declaration of a person as president-elect is made, this in order to try and give a modicum of equality of arms before court between a petitioner and respondent now president-elect but what instead is going on? International guests including custodians of international law on good governance such as the official election monitoring body SADC are witness to an illegal transfer of power from Edgar to Edgar, something which is against the letter of the Zambian constitution and international law applicable to Zambia
n Article 103 (2) of the Constitution imposes an obligation on the Constitutional Court when it commands ‘The Constitutional Court shall hear an election petition filed against the president-elect within fourteen days’ (sic). In their majority judgment, the three infamous majority judges purported to shift responsibility for not discharging this constitutional obligation on the conduct of the petitioners’ lawyers yet the constitution does not contemplate this. According to the constitution, it is not up to the petitioners’ lawyers to ensure the petitioner was heard but is a duty solely on the shoulders of the Constitutional Court. Needless to say here that even minority judges similarly attempted to shift blame onto petitioners’ lawyers for the Constitutional Court’s breach of the constitution which is equally fault. It must be made abundantly clear that in not hearing the petition, the Constitutional Court has breached the Constitution and as a minimum the three Constitutional Court judges that constituted the majority should be held accountable and the President of the Constitutional Court held accountable for colossal failure of leadership at the Court.
n The majority Constitutional Court judges that controversially and illegally dismissed Hakainde Hichilema’s election petition either forgot or failed, having declared as they did that no election existed owing in their opinion to rationale temporis rule, to declare the president-elect validly elected. Even in Mugabe’s Zimbabwe, Chief Justice Godfrey Chidyausiku would not forget, after petitioner Morgan Tsvangirai’s lawyers withdrew the petition they had filed against Robert Mugabe and the Zimbabwe Electoral Commission, to declare Mugabe validly elected. Article 101 (6) obligates the Constitutional Court if not to nullify the election then to declare the president-elect validly elected. There is no provision in the constitution for the Constitutional Court to not hear the petition. Hearing a petition is a constitutional imperative and there are no two ways about it. Since Edgar Lungu was not declared validly elected, he cannot be sworn into office.
n In the media, there are stories suggesting that a former Zambian president and a serving High Commissioner were part of the team that manipulated and even rigged the election in favour of Edgar Lungu. If this is proven to be true that the law was breached by named individuals in Zambia to rig the outcome in favor of Edgar Lungu, prosecutions can be instituted outside Zambia were authorities in Zambia not take relevant action to ensure accountability of the named individuals.