Sat, 11 Feb 2017 10:02:19 +0000
THE Republican Constitution does not come into the case of the controversy that has arisen over the MMD party presidency, High Court Justice Mwiinde Siavwapa has said.
Justice Siavwapa said in his ruling that the issue before him was on the validity of the process of the May 20-22 2016 national convention that voted into office Felix Mutati and his team.
He said the question, therefore, must be on whether the national secretary Raphael Nakachinda had requisite authority under the MMD party constitution to call for a national convention and whether or not the person elected at such convention was legitimate to hold office.
“Does the averment give rise to the question whether or not the NEC (National Executive Committee)’s decision of 30th January, 2016 not to hold a convention in 2016 is in conflict with Article 60 (2) (d) of the republican Constitution?
“The republican Constitution does not come into the picture and it ought not be imposed on that claim by the defendants,” he said.
He said whether or not the NEC’s decision contravened Article 60(2) (d) of the republican Constitution could only be determined by the Constitutional Court at the instance of the aggrieved party.
He charged that on whether the decision was in contravention of Article 1128(2), it still remained on whether the defendant had the authority to call and hold a convention.
He said even a counterclaim was inadequate at the moment as the matter at hand could be heard and determined by the presiding court, unless in this matter, it was raised by the plaintiff. “As rightly submitted by the plaintiff’s counsel, a counterclaim cannot arise from issues not raised in the statement of claim unless such issue can be competently dealt with by the court,” he said.
And Justice Siavwapa has ruled that in line with the reliefs sought by the plaintiffs, the said meeting of January 30th 2016 should have no bearing on the question as to whether or not the defendants had the requisite authority and mandate to call for and hold a convention at the time under the MMD constitution and not the republican Constitution.
“I accordingly dismiss the application for an order to refer the question to the Constitutional Court pursuant to Article 128 (2) of the republican Constitution with costs. Leave to appeal granted,” he said.
