Emmanuel Mwamba: OPINION: SELF-PARALYSIS; A COUNTRY IS BIGGER THAN ANY INDIVIDUAL
“These things also belong to the wise. It is not good to have respect of persons in Judgment”.
SELF PRESERVATION: A COUNTRY IS FOR ALL INDIVIDUALS
Proverbs 18: 17: ‘The first to plead his case seems right, until another comes and examines him.’
THE framers of the law were very clear. In the past inaugration of a newly elected President took place immediately but within a period of 24 hours after such a person was declared winner by the Electoral Commission of Zambia.
ZWD COMMENT: That was a law created by crooks to save their interests. Their method of operation was very simple: rig elections, swear each other within 24 then tell the victims to go to court for an academic exercise.
Emmanuel Mwamba: This was to prevent a sense of vacuum and the security, peace and fear of stagnation concerns that come with such a sensitive and transitional period.
ZWD: As admitted herein, there was never a real vacuum. It was just a sense of vacuum, an imagination, something that does not exist. Zambia was stagnant before, during and after such crooks were inaugurated. So, zero plus zero is still zero.
Emmanuel Mwamba: It was for this reason that the security concerns reigned supreme that the law relegated a hearing of any electoral petition or dispute to be held only after the President was sworn in.
ZWD: Closing the stable door after the horse has bolted
Emmanuel Mwamba: And Members of Parliament were also allowed to take their positions and places while such legal challenges took place.
ZWD: And how much did the country lose to such people who clearly did not deserve to be in our national assembly? Did you expect such people to come up with progressive laws?
Emmanuel Mwamba: But following the Judgment of an election petition by Anderson Kambela Mazoka and Others -Vs- Levy Mwanawasa (2005) challenging the election of Levy Mwanawasa in 2001, many Zambians felt that the process was academic as that Petition was resolved almost five years later rendering academic.
ZWD: Ahhh. Mazoka, now that he is dead he is useful!
Emmanuel Mwamba: Similarly for Members of Parliament whose elections were nullified, cses took up-to 4 or 5years while they had enjoyed the full benefits of that office.
It is for these reasons Zambians hoped to cure this mischief in the new Constitution and placed a bind to time when such election disputes should be heard and determined.
For members of Parliament it is now 90days.
For one elected as President of the Republic , the Constitution has restricted the time of HEARING such a Petition to 14days and that such a Petition should be filed within 7 days after a President has been declared winner.
ZWD: You forgot to say that when there is a petition, the Speaker should take over executive functions. That part is also in the constitution. In fact very near to the one you just quoted.
Emmanuel Mwamba: To do this a serious balancing act was however done to serve and save two purposes; To ensure that petitioners were heard and a sense of justice prevailed but that the matter was swifty determined and resolved while recognising that a vacuum should not occur; that Peace, Security and Stability were not compromised and security concerns were forestalled.
ZWD: You are wrong. It was not meant to give a ‘sense’ of justice. It was meant to deliver justice. Those are two different things. A ‘sense’ is just in the mind; justice is real, and can be ‘seen’. But we can’t be surprised, that is what the PF believes in; give people a sense of hope but not real hope. The framers of the constitution as you call them, put measures to make sure that the security fears and vacuums you itemize do not occur; they provided that the Speaker should hold executive powers during such a period. In any case, we have had no president for while now but we are living normally. The only people who are in a vacuum are individuals like yourself whose jobs depend on a particular person being inaugurated. Otherwise, there is peace in the valley.
Emmanuel Mwamba: To affirm the validity of the importance of this balancing act, in this case before us, the Constitutional Court correctly ruled and cited the authority of the Constitution,its own, Rules and Orders and directed that the hearing of the Petition would wind up by mid-night on Friday 2nd September 2016.
ZWD; Really? And how did the midnight come about? Going by your strict adherence to the 14 days, we assume each of the 14 days has 24 hours. So was the petition filed at midnight 14 days earlier or it was around 14, 15 or 09 hours? Was the court registry open at midnight for you to start counting from midnight to midnight? Or even worse at 01 AM? We know why why you did not object to the few extended hours. You knew nothing could be done except reading a judgment you expected.
Emmanuel Mwamba: But that was not be. 21 days later, the Petition has not been heard or let alone determined.
ZWD: It was still not heard 14 days and two hours later.
Emmanuel Mwamba: But what has the Court done with the last 21days? What have the lawyers for the Petitioners done in the last 21 days? What has the country done in the last 21 days?
ZWD: In the past 21 days, last night inclusive, the court has extended the hearing to next week, it has also allowed the petitioners and respondents to be heard. The lawyers for the petitioners have filed application, attempted to adduce evidence but Judge Annie Mwewa Sitali has rejected all the applications, frustrated all efforts to adduce evidence. In the past 21 days, the country has continued suffering more or less the same it has suffered from the time Edgar Lungu macheted his way to state house.
Emmanuel Mwamba: The country atleast knows what the lawyers for the Petitioners did.
They let the clock tick away with the period in which a Petition should be filed (within seven days after a President of the Republic is declared winner).
ZWD: The petition was filed with the seven days and ordinary decent people know that the lawyers had to gather the evidence from all corners of the country, analyze and consolidate it into legal material. That can’t done within a day especially when and if, as in this case, you are dealing with sophisticated crooks running state institutions including the electoral body. You need time.
Emmanuel Mwamba: And once the Petition was filed (so poorly done that it was so general and global and clearly lacked merit (hence the numerous applications that followed to atempt to amend it), the lawyers spent(squandered) the entire fourteen days allocated by the Constitution and rules of the Court for hearing of such a Petition, with unmerited preliminary actions and applications.
ZWD: Maybe that should be left to people qualified to make that judgment, suffice to say that this was not the first case in which preliminary issues were raised. In fact, almost all court cases have preliminary issues. Now, if the case lacked merit, why don’t you want the court to hear it?
Emmanuel Mwamba: Where the Petioners heard?Yes for fourteen days
What suffered? Their own case and the case of their their clients.
ZWD: The petitioners will be heard again for two days next week. What suffered? Those who want to use technicalities to exclude evidence.
Emmanuel Mwamba: And Can the Court over rule itself?
ZWD: Yes, it can. It is settled law that a superior court can depart from its previous decisions if the past decisions led to injustice. Try to read a few law books.
Can the Court rule outside the provisions of the Constitution?
ZWD: The constitution as it is or as you think it is? Every Jim and Jack has an opinion on what the law says., but only the court has the power to state what the law is. In Zambia, when it comes to interpreting the constitution, the constitutional court reserves those powers, it is at par with the supreme court. However, when one judge determines a matter, and the affected person is dissatisfied, that person is entitled to ‘appeal’ to the full bench, especially if the issue at hand is of utmost importance.
Emmanuel Mwamba: Can the Court legislate from the bench and extend, amend, alter time and period of hearing to attend to a single individual right relegating the clear various provisions of the law and breaching other fundamental right including those bordering on collective and sovereign rights?
ZWD: The simple truth is that yes judges make law, while interpreting the constitution and other legislation. But that is not the same thing as legislating. Legislating is a technical term meaning making laws in parliament. And yes the court has the power to do all the things you list above. We do not know the ‘fundamental rights’ you are referring to so we shall leave it at that though we suspect you just pulled that term to sound sophisticated.
Emmanuel Mwamba: Who should pay for this incompetence, prevarication, procrastination, negligence, delays and confusion that has occurred and engulfed us in the last 21 days?
All I know is that it should never be the Constitution.
ZWD: Why are you always thinking about money?
Emmanuel Mwamba: It’s so sacred that not even a Court of law can amend its provisions for the sake of an individual(s) or unusual circumstances.
ZWD: There is a difference between interpreting and amending the constitution. Just because the court did not say what you thought the law meant does not mean it has been amended. There are other people with different opinions from yours.
Emmanuel Mwamba: Remember that it was never the intention of the people of Zambians nor the framers of our Constitution nor the intention of the law that 21 days after the people elected a new President and the Electoral Commission of Zambia declared him so, that such a person has not been inaugrated and sworn -in? that the country has no cabinet ministers yet? And that Parliament has not begun to sit.
ZWD: By what authority do you say that? Are you the spokesperson of the Zambian people or were you the rapporteur for the framers of the constitution?