ConCourt can’t discharge ‘stay’ refusal – Scott

Sat, 10 Dec 2016 11:20:39 +0000

CHARLOTTE Scott says the Constitutional Court has no jurisdiction to reverse a final decision of the High Court before the hearing and determination of a preliminary issue raised in any interlocutory application.

Dr. Scott said this in her response against the Constitutional Court appeals application to stay the High Court’s decision to nullify Margaret Mwanakatwe’s election as Member of Parliament for Lusaka Central Constituency.

This is in a matter in which Ms Mwanakatwe has appealed to the Constitutional Court following High Court Justice Mwiinde Siavwapa’s judgment to nullify her election, and subsequent ruling to dismiss her application for a stay of execution of the judgment, that her appeal would be nugatory if the Speaker of the National Assembly should go ahead and declare her seat vacant.

Mr Justice Siavwapa refused to grant her a stay of execution that it would be illegal to reverse his own judgment when he found her election irregular in his ruling, but granted her right of appeal to the Constitutional Court.

But Dr Scott has said it would be prohibitory for the court to decide to stay the decision of the High Court against a parliamentary seat when the Speaker of the National Assembly was vested with the authority and responsibility to declare the seat vacant after nullification.

The UPND losing candidate said the Speaker was mandated by the Constitution to declare the seat vacant immediately after nullification, but that granting a stay would halt that process to go ahead.

“We contend that the court is not clothed with any authority under the law to grant such an order, particularly as a duty imposed upon the Speaker to declare the parliamentary seat vacant is a mandatory constitutional duty which must be undertaken by operation of law.

“Under the terms of Article 57 of the Constitution, the 2nd respondent is upon being notified accordingly by the Speaker, mandated to arrange the holding of a by-election in accordance with the said Article.

“By seeking a stay, the appellant is seeking to prevent the forgoing constitutional imperatives from being undertaken,” she said.

She said the reliefs sought in the application were not tenable by law as they operated the same as an injunction that prevented the next step of action as provided for by a nullification of a parliamentary seat.

Dr. Scott insisted that Ms Mwanakatwe should have sought other appropriate orders than to impose a prohibitory order such as a stay which halts the progress in the holding of a by-election to allow for fresh elections following the nullification.

She said the application was misconceived at law, unless by all intents and purposes was raised against the Speaker and the Electoral Commission of Zambia (ECZ) were to be cited, against the enforcement of the judgment, especially that in the first instance.

She explained that as first respondent, she was not due to take any action against Ms Mwanakatwe nor would she automatically take office as MP following the petition verdict.

That going ahead to grant the stay would give the Constitutional Court power to confer non-existent rights on a party even without full determination of the appeal which would allow the appellant to act as MP including accessing emoluments without being mandated to do so.

She charged that there existed no special circumstances on the part of the appellant to warrant a stay in the matter, and that such an application should be dismissed with costs.