IT is difficult to describe what to make of the strange court rulings that were handed out amid a flurry of court orders. What has come out however is the failure by three of the country’s apex courts – Supreme Court, Court of Appeal and Constitutional Court – to serve the public and meet their aspirations. Yesterday, a High Court order to stay the Kabushi and Kwacha parliamentary by-elections was annulled by the Constitutional Court and instead the elections are proceeding today as scheduled by the Electoral Commission of Zambia (ECZ).
With the ruling, the ConCourt ruled that the 21 days in which the High Court is expected to determine the Kabushi and Kwacha by-elections had elapsed, thus, the order suspending the elections was null and void. It is judgement rendered yesterday, the Concourt clearly stated that the 21 days in Article 52(4) cannot be stopped or enlarged by any court or authority.
The ConCourt also affirmed that the Court of Appeal does not have jurisdiction to hear appeals to cases whatsoever dealing with Article 52(4) of the Constitu[1]tion. This is a matter in which United Party for National Development candidate for Kabushi , Mr Bernard Kanen[1]go sought interpretation on whether pursuant to Article 52(4) of the constitution, the prescribed period of 21 days within which to hear a challenge relating to nominations of a candidate can stop running by virtue of a stay of proceedings.
The run up leading to yesterday’s ruling was marred in controversy with a recent ruling by the ECZ that it would go ahead with the by-election. But its decision was quickly quashed by the High Court, ruling that the election remained stayed until all the contentious issues were ironed out. In its judgement rendered yesterday, the ConCourt clearly stated that the 21 days in Article 52(4) cannot be stopped or enlarged by any court or authority. The ConCourt also affirmed that the Court of Appeal does not have jurisdiction to hear appeals to cases whatsoever dealing with Article 52(4) of the Constitution.
To add to the mystery, the acting Chief Justice Roydah Kaoma had adjourned all matters involving the Attor[1]ney General from October 19 to October 21. “I refer to your letter of today’s date that all courts with matters involving the Attorney General from 19th October to 21st October adjourn such matters as the State Advocates will be attending the arbitration course with the Chartered Institute of Arbitrators. Note that your request has been granted,” Justice Kaoma said. But even with this request in place, how did the two courts sit? What is even more baffling is that the two contentious rulings were made in one day – a record by Zambian standards. While the High Court stayed the elections, the Constitutional Court sat in the afternoon and overturned its judgement.
Against the pending court cases, President Hakainde Hichilema made a two-day whirlwind campaign tour of the two constituencies long before anyone had an inkling of what was to come. It can only be described as a strange coincident. Clearly, the loser in all this court drama is democracy that will suffer. The voters have been denied their right to elect leaders of their choice while the candidates who have been marginalised have had their constitutional right to con[1]test in elections denied.
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