JUDGE MUSONA U-TURNS

Wed, 21 Dec 2016 12:13:15 +0000

By Violet Tembo

PROFFESOR Nkandu Luo has been denied a stay of execution and therefore immediately loses her seat and ministerial position.

In a belated judgement by Ndola High Court Judge Edward Musona, an application for a stay was rejected on the grounds that a stay was legally untenable.  The Judge was discharging an earlier stay granted before an inter-parte hearing.

However, Judge Musona’s ruling together with Judge Siavwapa’s decision not to stay, is contrary to a Supreme court decision made by then Acting Chief justice Florence Mumba who ruled that it was important to stay election nullifications in order to ensure continuity of representation for a constituency.

In her 25th June 2012 judgement in the case of Eileen Imbwae, she ruled that,
“In an election petition judgement where the interests of the electorate in terms of representation in parliament have to be taken into account, protecting those rights is paramount. 

What is at stake is the ability of the appellant continuing to enjoy the status of a member of parliament pending an appeal judgement and the electorate continuing to receive benefits, if any, in terms of development programmes.  Prospects of success while important, should be weighed against these factors.  I believe that leaving the status quo until finalization is more reason to grant a stay and I grant the order sought to stay judgement of lower court pending costs shall abide the appeal.”

So far neither the Supreme Court nor any other higher court has made any ruling to reverse this judgement.  It is therefore not clear on what basis the two judgements made the decision that a stay in a petition was legally untenable.

In his Judgement in which he quoted from the Mast newspaper extensively, Judge Musona accused professor Luo of bragging to taxi and bus drivers whom she addressed concerning the judgement of the court, “The story” in the Mast he said, “makes sad reading because it demeaned the judicial process and the language used was street language and unpalatable street language.”

“Her argument in her application is that Munali constituency will be deprived of representation and office of the Minister of Higher Education will remain vacant if the stay is not admitted.  That is mere demonstration of her desire to cling to the Munali seat as Parliamentarian.  Order must not be speculative, infinitive, made vacuum or plainly unclear.

In this case there is nothing to execute in the judgement and therefore an application for stay is not well founded.

This application is a ‘destitute’ of merit and I dismiss it with costs.  For the avoidance of doubt the ex-parte order which I granted on 28th November 2016 I discharge it.  The Munali seat remains nullified and vacant until determination of the appeal or any other order by the Constitutional Court.

Until them Luo is not member of parliament for Munali,  Order of costs for this application is in favour of the petitioner.  Leave of appeal against ruling is granted.” he said. In his ruling yesterday, Judge Musona said the ex-parte order to stay the execution of his earlier ruling had been dismissed because there was nothing to execute in the judgement.

Judge Musona stated that for the avoidance of doubt, the expert order granted to Prof Luo on 28th November had been discharged and that the Munali seat therefore remained vacant until the determination of the appeal or any other order by the Constitutional Court.

Judge Musona expressed disappointment with the utterances attributed to Prof Luo and published in The Mast Newspaper in which she was reported as having told Lusaka bus drivers to ignore the judgment of the High Court on the nullification of Munali and Lusaka Central Constituencies and advised the Attorney General to counsel Prof Luo to avoid what he termed as outbursts in the media against the Courts.