By Brigadier General Godfrey Miyanda
I call upon the President to transfer the current Minister of Justice, Hon Wynter Kabimba, from the Ministry of Justice and appoint a person who will act beyond partisan lines in this strategic ministry that should be the bastion of the Rule of Law and custodian of our democracy.
The ZNBC evening news of 6th August 2013 showed Hon Wynter Kabimba, Minister of Justice, revealing that he had instructed PF lawyers to “engage” the High Court to act to stop certain opposition MPs from standing in the forthcoming bye-elections. In an act of abdication of his Ministerial portfolio the Minister took off his Justice shield and donned the PF cadre cap by speaking as Secretary General rather than Minister of Justice! We take this to be an attempt to disguise the fact that he is the Minister of Justice at all times who should never act in a partisan way. How can the Justice Ministry remain under a person who has shown clearly that he is a cadre first and Minister of Justice last?
How can the Justice Ministry remain under a person who has shown clearly that he is a cadre first and Minister of Justice last?
I believe that this PF “Stop Dora” Campaign is politically motivated due to the PF’s desperation and fear of future bye-elections. While it is in order for the PF or any other aggrieved person to go to court to raise issues regarding an election, the latest tactics by the PF Secretary General are baffling. It seems the Minister of Justice has thrown away his legal mind and forgotten that citizens have certain rights that have to be observed whether in civil matters or criminal (or quasi criminal actions such as election petitions).
Under our laws it is NOT automatic that a finding that there was corruption in an election always ends in a disqualification from participation in future elections; it will depend on the evidence. I thus find the tactics being applied by the Minister to be not only irregular but premature and presumptuous.
The Minister, himself a lawyer, announced that he had instructed his lawyers to “engage” the High Court. What is this “engage” language? Rather, an appropriate process is commenced which involves other parties rather than conducting a private “engagement”. How do you challenge something that has not yet happened? Minister Kabimba’s lawyers may end up having no one to sue and instead “engage” the High Court alone! The PF are in such a panic rush to get hold of the Report that they have decided to make desperate short cuts.
The Minister, himself a lawyer, announced that he had instructed his lawyers to “engage” the High Court. What is this “engage” language?
There is a process or procedure to be followed after a determination of a petition by the High Court. At the conclusion of the hearing, where the High Court finds that some corrupt or illegal acts were committed, the Court would prepare a Report and invite the concerned candidates to show cause why they should not be named in the Report. Only then should the Report be submitted to the ECZ and the DPP. Hon Siliya and others have a right to be heard BEFORE the Report is submitted. The Courts should not be badgered by the Minister of Justice into doing things that are not procedural.
A point of note here is that although it is the High Court that must prepare the Report, in this case the High Court held that there was no corruption; consequently an appeal ensued which culminated in the Supreme Court overturning the High Court decision. Without having had sight of both judgements, I assume that the Supreme Court’s decision was based on points of law, rather than on facts, unless there were grounds to disagree with the court below. Since it is the Supreme Court that made a contrary finding, I would assume that it is the one to make the Report indicating the nature of the evidence given in respect of the corrupt and/or illegal acts as well as naming the person/s found wanting. The Report would be sent to the ECZ and the DPP; with the DPP to establish whether there was sufficient evidence to warrant a prosecution under the corrupt acts under the electoral law. Here I contend that this is a matter for the DPP and NOT the ACC because the offences are corrupt and/or illegal acts under the electoral law.
Lastly, instead of creating so many bye-elections the Minister must consider rejecting the whole 2011 election including that of the President, as it is the credibility of the whole election that must now be in question! This should be done without going to court to trouble and pressurise the judiciary and the hard-working ECZ.
[7TH AUGUST 2013]