Tue, 06 Dec 2016 12:46:34 +0000
Judge Siavwapa misapprehended the law
EDITOR,
The recent refusal BY Judge Sivwapa”s refusal to stay of his own judgement brings issues on the fundamental tenets governing the disposal of petitions under the constitution. We saw conflict of jurisdiction between the original and Appellate jurisdiction of the High Court and Constitutional Court Respectively. It is important from the onset to cite the relevant provisions of Article 73 (4) of the constitution which states as quoted herein below;
“A member whose election is petitioned shall hold the seat in the National Assembly pending determination of the election petition.”
My humble interpretation of the decision to throw away the application for a stay by Mrs Mwanakatwe gives the meaning of the words, ‘pending determination of the election petition” as the petition proceedings may not include an Appeal before the constitutional court bench.
Under section 28 (5) of Order 43 of the Rules of the Supreme Court Act, chapter 25 of the laws of Zambia, the word proceedings is defined as to include; “in relation to an Appeal to the Court, the proceedings at first instance in respect of which the Appeal and all proceedings subsequent thereto by way of Appeal and all applications relating to such proceedings as aforesaid.”
The word “determination” must not thus be inclined to the Court exercising original jurisdiction but even the Court exercising Appellate, revisional jurisdiction and otherwise in so far as the Appeal relates.
It is ostensibly clear that Judge Sivwapa’s judgement is an ouster on Mr. Mwanakatwe’s right to seek redress on appeal because of his restrictive meaning of the reference of the words, “determination” and Mrs Mwanakatwe would not enjoy her rights to have Appeal determined impartially as the appeal risks being rendered a nugatory.
If the Speaker will declare the Lusaka Central vacant that is effect will forth with obviate the need for the appeal. It is because of the competing interests of justice which must safeguard her entitlement to a seat in parliament while the Appeal is pending. Judge Sivwapa has unavoidably conducted himself in a manner that is highly subjective by his insistence that he would not grant stay of his own Judgement. Going for bye-elections in the course of hearing the proceedings will imply that his decision is binding, final and unappellable or cannot be varied whatsoever. How then can his Lordship waive this salient, fundamental, inalienable and sacrosanct constitutional right when the constitution does not say so? We respectfully submit he cannot. The decision which was made ex parte would have been vacated after an inter parte hearing.
As a matter of fact, this is an assault to constitutionalism and all those stakeholders who are criticising some of these judges are indeed legally and morally justified in doing so.
The public has an interest to see to it that any judicial body ceased with powers to preside over matters of public interest, tie its hands towards the provisions of the constitution. While taking relevant provisions of Article 118 of the constitution the key guiding principles states as follows;
118 (2) “ In exercising judicial authority, the Courts shall be guided by the following principles,
……………………………………….@ Justice shall be done to all without discrimination.”
After carefully buttressing the reasoning of the framers of the fore stated clause, i comprehensively contend that Mrs Mwanakatwe was discriminated by operation of the alleged ex parte ruling. As a matter of facts, all candidate have appealed against their nullified seats have had their application for a stay granted pending appeal notwithstanding the decisions of the trial courts.
While our hands are tied to compel Judge Sivwapa to reverse his decision,. It is our prayer that his conscience will coincide with our line of thought so that we are not misunderstood.
Marvin Chanda Mberi
Youth Rights Activist.
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Lusaka
Cartel alive and kicking
Dear Editor,
The main front page story of the so-called Mast newspaper cannot go without my comment.
Typical of the Post, (sorry Mast) that story was meant to start capital flight from banks by first cheating account holders that commercial banks in Zambia are under stress and create panic withdrawals.
The result would have been serious run on the banks which could have led to their closure. Is this what the Mast wanted to see? Yes that was its prime agenda.
But the beauty of dishonesties is that they do not last because they are sown in sand soils.
It is all plain to see that this is the work of the opposition just to create gratuitous glitches for President Lungu as if he was the one who led to the closure of the Post.
Of course the Mast or whatever the name, will do everything in its trifling powers to generate problems for the PF government for the apparent reasons.
The closure of the Post, I know has created such animosity that the Mast will jump on any issues and blow them out of proportion.
But like I have said before President Lungu has to kill this cartel which appears to getting solider by the day. No doubt about that. It has now spread its antennas into our judiciary system not to talk about the security wings. The situation is that horrid. In the village there is a saying that you can only truly kill a snake by cutting off its head, not otherwise. The cartel is alive and doing what it knows best. Don’t say I did not warn you.
Josiah Soko
Salima Road, Matero
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FDD and Edith Nawakwi
Dear Editor,
The issues unfolding in FDD are interesting if not disturbing.
I don’t know if it is democracy at work or not, but whatever it is, its leader Edith Nawakwi has more to explain for her craving to run for a third term of office.
If I remember correctly, the FDD was born to fight President Chiluba’s idea of running for a third term. What has now change madam Nawakwi?
You are not helping to grow democracy in Zambia by clinging on to power even where your time is up.
Why have you suddenly gone against your democratic dogmas and begin to embrace the same you loathed under the Chiluba administration?
If this is not playing double standards, then you should know better why you are acting in this manner today.
For 10 years you tried and failed, don’t you think it is time someone else tried their hand at the game? Yes power is sweet but absolute power indeed corrupts and we are now seeing this in you. Instead of being supermodel in democracy you are doing exactly the opposite but then I am fully aware that this is Africa.
Anything is possible You certainly can do better than this Madam Nawakwi
Paul Funte
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WHO DEFENDED DR. FREDERICK CHILUBA FROM THE CARTEL?
Dear Editor
At its height the cartel could pick and choose enemies to vilify and destroy as they did with Dr. Frederick Chiluba our second Republican President.
Apart from his lawyers, very few people dared stand up to question the validity or indeed propriety of the charges that were brought against him by the Post Newspaper which worked with Mutembo Nchito as prosecutor in launching one of the most vicious prosecution crusades.
Although the full truth still has to be told, the truth is that if the hurtful lies were not so widely publicised chances are that many of the people including former Presidents may still have been alive today to tell their own stories in the same way that the cartel is trying to defend itself.
Apart from the abuse Dr. Chiluba suffered many Zambians will also remember how late President Mwanawasa was referred to as an arrogant and obstinate leader, because he dared disagree with them.
If there is anything History teaches us, it is that what goes round comes round. You reap what you sow.
Members of the cartel should have known that whatever they did to other people would bear retribution when the truth of their evil was going to be discovered.
Dismus Machona
