Thu, 29 Dec 2016 09:36:54 +0000
…..Until ConCourt makes a final determination…
By Nation Reporter
MARGARET Mwanakatwe will continue to hold her Lusaka Central and ministerial portfolios after the Constitutional Court ruled that her application for a stay of execution of the High Court judgment was irrelevant.
Justice Mulembe ruled that he found the application for stay of execution of the judgment irrelevant because when there was an appeal, the law as per constitutional provisions stated that the seat only becomes vacant after the final determination of the Constitutional Court.
According to the Article 73 (4) “a Member of Parliament whose election is petitioned shall hold the seat in the National Assembly pending the determination of the election petition”.
He affirmed that he saw no need to entertain the application for stay any further when by operation of law and in terms of the Constitution, it was clear when the seat would become vacant.
“I see no need to entertain this application for stay any further when, by operation and in terms of the Constitution, it is clear when a seat becomes vacant.
“In the premises, I find this application for stay of execution of the judgment of the court below irrelevant because when there is an appeal, the law, as per constitutional provisions, has stated that the seat only becomes vacant after the final determination of the Constitutional Court,” said Judge Mulembe.
In her appeal to the Constitutional Court against the nullification of her seat, Ms Mwanakatwe submitted that the High Court upheld five out of the six grounds filed in the petition, but that the learned judge erred in fact and law when he alleged that the violence perpetrated by the Patriotic Front (PF) members in Mtendere was a misapprehension of facts.
She explained that the High Court Judge misdirected himself when he accepted to admit evidence which her witnesses demonstrated to the court on several issues as being untrue.
Ms Mwanakatwe argued that even the allegation that events of August 8, 2016, affected the decision of the majority voters in the constituency did not adduce any such evidence.
In this case, Ms Mwanakatwe had appealed against the refusal by the High Court to grant her an application for stay of execution of judgment following the nullification of the Lusaka Central seat pending hearing and determination of the appeal, as not granting her a stay would in turn allow the Electoral Commission of Zambia to declare her seat vacant and call for fresh elections.
And the petitioner Charlotte Scott requested the court to dismiss Ms Mwanakatwe’s appeal to stay the execution of judgment.
She submitted that it was not tenable at law that the Court should stay such a judgment which would resulted in the perpetuation of an unlawful act.
Dr. Scott, who was the losing candidate on the UPND ticket, challenged the stay application, saying Ms Mwanakatwe was not clothed with the legitimacy to claim the right to sit in Parliament as a representative of the constituency, as her election was found to be fraudulent and marred with malpractices, hence the nullification.
