Mon, 05 Dec 2016 12:28:14 +0000
By Nation Reporter
Contradictory High Court Judgments over “nullification” appeals to the Constitutional Court will require the immediate intervention and guidance of Chief Justice Irene Mambilima to restore public confidence, stake holders have demanded.
This follows a controversial judgment by Lusaka High Court Judge Mwiinde Siavwapa who has refused to grant Margret Mwanakatwe a stay of execution pending the outcome of her appeal to the Constitutional Court, stating that this would be illegal while Ndola High Court Judge Edward Musona granted a stay to Professor Luo whose Munali seat was nullified.
Stakeholders also want a very clear enunciation of the gravity of offences that would qualify for nullification of seats following equally contradictory grounds in which nullification has either been denied or granted for the same “offences”.
But the Law Association of Zambia (LAZ) has said there was no need for Chief Justice Mambilima to step in and give the High Court judges guidelines on how they must handle the petitions and stay of execution judgments because the courts had wide discretion.
LAZ president Linda Kasonde said there was a Constitutional Court which was created to handle appeal processes where those who felt the judgment was not fair could go to seek justice.
YALI executive director Isaac Mwanza said Chief Justice Mambilima had the duty to give direction on some of the judgments that had created controversy, making an impression that there were inconsistencies in the judgments of election petitions.
In the case annulled by Judge Siavwapa Mrs. Mwanakatwe polled 29, 732 votes while Charlotte Scott of the UPND polled 17, 954 votes. In a similar case Judge Irene Mbewe refused to annul the election of UPND candidate Chinga Miyutu who got 11,832 votes against 3,219 votes for PF candidate Richard Mwapela because the court did not have the mandate to change the will of the electorate.
She explained that allegations of irregularities were not proven to have affected the results of the election “It is important that the allegation is such that it prevented the majority of the electorate from voting for a candidate of their choice. Thus a court as such cannot interfere with the right of voters to elect their representative in the said constituency, unless it is established that the election was marred with irregularities.” She said.
Mr Mwanza said the perceived inconsistencies by judges of the High Court were eroding the confidence Zambians had in the Judiciary and it was therefore prudent for the Chief Justice to step in and settle the controversy.
Mr Mwanza said it was disheartening that the same court could give contradictory rulings on the petitions and stay of executions. “It is shocking and one fails to understand the two High Court rulings on the petitions and stay of execution of judgment where High Court Judge Mwiinde Siavwapa refused to grant Lusaka Central parliamentarian Margaret Mwanakatwe a stay of execution following the nullification of the Lusaka Central seat while Ndola High Court Judge Edward Musona granted Munali Member of Parliament Nkandu Luo a stay of execution,’’ he said.
Mr Mwanza said it was for this reason that he expected Chief Justice Mambilima to give an interpretation on the matter that had caused confusion among the High Court judges.
‘‘The Chief Justice should not just seat and watch what is happening in the High Court because it is distorting and reducing public confidence in the Judiciary and it is within her right and duty as the head of the Judiciary to descend and seat as a High Court judge and give a proper guidance to the judges at the High Court,’’ he said.
Mr Mwanza claimed that there was no law that stopped the Chief Justice from descending from the Supreme Court to seat as judge of the High Court and ensure that the courts were properly guided on a matter of national and public interest.
He explained that there was need for the Chief Justice to sit in the Constitutional Court to ensure that there was consistency in the way the judgments were given. ‘‘If there is any dissatisfaction to the ruling of the Chief Justice who will be sitting as a High Court judge at that point guiding the court in matters of interpretation, one can still apply to the Constitutional Court where a full bench can seat and look at that judgment.’’
Mr Mwanza explained that the Chief Justice’s involvement in the matter would not be an interference in the jurisdiction of the High Court because by law she is allowed to descend and seat as a High Court judge in order to give direction on matters of law and facts.
He added that this was a timely issue that must be handled before the public entirely loses confidence in the Judiciary. ‘‘We expect them to handle this as soon as possible,’’ he said.
