Sun, 04 Dec 2016 09:47:59 +0000
READING the High Court Ruling in which Judge Siavwapa denied Margaret Mwanakatwe a stay of execution of the judgment that nullified her Lusaka Central parliamentary seat on 24th November, 2016 pending an appeal to the Constitutional Court causes disquiet. The ruling raises fundamental questions that leave one bewildered and come to the conclusion that indeed the problem with the law is the lawyers and judges. It must be stated from the outset that Judge Siavwapa, in deciding against granting a stay of execution of the judgment which he delivered on 24th November, 2016, appears to have been so cautious and obsessed with the aura of reversing his own findings. What is the purpose of a stay in the legal process if not to guarantee temporary relief to the litigant while awaiting determination of the matter by the higher court? The Supreme Court decision in Ruth Kumbi v Caleb Robson Zulu No. 19 of 2009 put it succinctly as follows: “The stay of execution is granted in order to maintain the status quo of the parties pending the application before the court”. Similarly, Order 58/13/2 of the Rules of the Supreme Court 1999 strengthens its purpose: “…but the court is likely to grant a stay where the appeal would otherwise be rendered nugatory…” This is exactly what the High Court Ruling has done by not granting Margaret Mwanakatwe an order of stay: it has rendered the appeal to the ConCourt a mere academic exercise. It appears that despite appealing to the ConCourt, the High Court Registrar should go ahead to notify Parliament and the Electoral Commission of Zambia about the 24th November decision of the Court to declare Lusaka Central Constituency vacant and consequently prepare for a by-election. In the absence of the High Court order of stay, there is nothing that prevents the two institutions from taking action in line with the Constitution and the Electoral Process Act. In his ruling, Judge Siavwapa admits “The result is that unless that process is blocked in some way, a by-election must take place as prescribed, the way out is by obtaining an order of stay as is being canvassed by the Applicant (Margaret Mwanakatwe)”. But shockingly, he later contradicts this position by advising “…the only way to avert a by-election pending an appeal and that is by way of appealing to those institutions which are vested with the authority to declare a seat vacant and conduct election since this judgment is incapable of being stayed without the effect of reversing myself”. A stay would not reverse the alleged findings of fact by the High Court. Instead, it would have the effect of Parliament and ECZ not going ahead with declaring the Lusaka Central Constituency vacant and preparing for a by-election as required by law knowing that an appeal has been lodged in the ConCourt. In the face of the High Court judgment, Parliament and ECZ do not have the authority to halt the declaration of the seat vacant unless there is an order of stay from a court of competent jurisdiction to that effect. “…since I did not award the petitioner any compensation in form of money or property, the nullification of the election is not capable of enforcement by court execution. To do so would be an attempt to prevent the Speaker and ECZ from performing their duties which would be an illegality.” Does this imply that the High Court Judge who granted Nkandu Luo a stay of execution of judgment pending appeal to the ConCourt committed an illegality? Much as Charlotte Scott was not awarded compensation in form of money or property capable of enforcement by court execution, upon Parliament and ECZ receiving a copy of the judgment nullifying the seat that in itself is instructive of what steps they must to take thereafter. Apparently, Judge Siavwapa endorsed the holding of a by-election as a remedy to Charlotte Scott in spite of knowing so well that there is an appeal against his earlier judgment in the ConCourt. The contradictions raised by Judge Siavwapa’s controversial ruling causes discomfort as it is abundantly clear that there is total disregard to the appeal before the Constitutional Court. “So then where the High Court has nullified the election and the provisions of section 108 (4) of the Electoral Process Act No.35 of 2016 kick in, the caveat provided by Article 73 (4) stands discharged by operation of law as no election petition pends determination at this stage.” How can provisions of the Electoral Process Act, a subsidiary legislation, have overriding force over provisions of the Constitution, the supreme law? Does this imply that it is unnecessary to await the determination of an election appeal to the Constitutional Court?
