Staying Power

Thu, 29 Dec 2016 12:43:18 +0000


IT WAS all so simple, or so Constitutional Court Justice Enock Mulembe has made it appear.

For almost one month now the nation has blown hot and cold labouring over whether or not the High court had power to stay nullification of seats.  The outcome of the debate was at best most confusing, misleading and at worst sounded political.

Judge Mwiinde Siavwapwa refused to grant a stay to commerce minister Margaret Mwanakatwe and literary invited the appropriate authorities namely speaker and ECZ to proceed as provided for under the constitution namely declare the seat vacant and order a by-election.

Judge Edward Musona even went further to state categorically and leaving no doubt that he had nullified professor Nkandu Luo’s seat and that there was nothing to stay because she was no longer a member of parliament.

But yesterday Judge Enock Mulembe laid this matter to rest.  He simply referred to the law.  In particular Articles 72(2) and 72(2)(h) which clearly indicated circumstances in which a member of parliament would cease to be as such following a decision of the constitution court.

More importantly too Article 73(4) states, “A Member of Parliament whose election is petitioned shall hold the seat in the National Assembly pending the determination of the election petition.”

It really stands to reason that a matter is not determined while it lies on appeal in a superior court namely the constitutional court.

In this regard Judge Mulembe did what the other courts should have done namely refuse to entertain and defer the matter which by operation of the law and in terms of the constitution was to be determined by the Constitutional Court.

In other words the Constitutional Court must make a final decision on a seat that has been nullified.  It can either uphold the nullification or indeed reject it, meaning that the individual remains a member of parliament.

To quote Judge Mulembe, “In the premises, I find this application for stay of execution of the Judgement 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”.

Therefore Judge Musona could not have been correct when he stated in very categorical terms that Professor Luo was no longer a member of parliament.  Only the Constitutional Court has the mandate to make such a determination and it was for this reason that Justice Mulembe urged the two parties to focus on preparing for the hearing of the appeal so that the court had the opportunity to bring the matter to a final determination.

This judgement truly obviates the absurdity that was about to be created in declaring a seat vacant and therefore by-elections being held while an appeal was proceeding in the Constitutional Court.

Undoubtedly lawyers representing the appellant and the respondent labored under an illusion created in part by the ambiguities in the new constitution which in some cases demands leaps in logic thereby challenging the very principles that the law intended to enshrine.

These ambiguities will continue and perhaps multiply with time unless a very clear and conscious effort is made to rectify the law through appropriate amendments.

It is very sad that the UPND has already indicated its opposition to any amendment to the constitution.  This stand is retrogressive because it opens the country to uncalled for friction.

The entire electoral process must be more clearly defined to avoid the confusion, anger and uncertainty which prevailed after the last elections.


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