I can’t change law – Judge

Mon, 17 Oct 2016 13:18:46 +0000

COURTS of law have no powers to change the law to accommodate an election petition filed out of time, says Mr Justice Sunday Nkonde. Mr Justice Nkonde said the Court simply had no legislative powers to amend the law when there was a provision in the Constitution that stated the time frame for such actions as elections petitions.

This was in a matter in which Mr Justice Nkonde dismissed a petition filed by UPND losing candidate Saidi Chibwana against Kabwe’s Bwacha Constituency Member of Parliamentary Sydney Mushanga and the Electoral Commission of Zambia (ECZ). Mr Justice Nkonde said the High Court simply had no jurisdiction to allow amendments to the law in order to accommodate a petition filed after the prescribed time as provided for in the statute already expired.

He said in his application, Mr Chibwana failed to provide any legal backing for his request to seek an extension of time from the courts in order to file in such a petition out of time. The Judge said the Courts have no authority to extend time for filing in and hearing of such matters outside the provisions of the law, and so could not extend time for filing in an election petition which was limited by statute.

He explained that Mr Chibwana failed to provide the Courts with relevant references from the Electoral Petition Rule that provided the Judge with such authority as to extend time within which to file the petition. “The consequence is that the application for leave to extend time within which to file the election petition is refused and I accordingly dismiss the same,” he said.

Mr Justice Nkonde said even the excuse that failure to file the petition within a prescribed time was a procedural technicality that hindered the delivery of justice was a lame one to accommodate such a claim. The Judge said the reasons submitted for the delay in filing in the petition was not supported by the law, and that no relevant court documents were filed to that effect. He said even the reasoning that the matter was of public interest as the voters would lose out if the petition was not allowed, the court viewed as a technique to persuade them to decide on equitable grounds when the law was very clear on the matter.

“Therefore, if there is anything I have to emphasise, it is that this court is not attracted to show utter disregard of the legislature in order to accommodate the feelings of others who may be distressed by this court’s decision. “In his affidavit, the applicant said nothing on why his application for leave to extend time within which to file election petition was not filed earlier than 26th September, 2016; considering that the applicant’s learned counsel went on sick leave on 26th September, 2016.

“I find that there was inexcusable, inordinate delay by the applicant in filing the application herein,” he said. Mr Justice Nkonde dismissed the entire petition that he had no such jurisdiction as to extend time for filing outside the law, adding that “the intention of Parliament that the word “shall” in section 106 (1) of the Electoral Process Act would be mandatory and not discretionary”.

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