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By Paramount Chief chitimukulu Henry Kanyanta Sosala

MARTIN Luther King said: “Our lives begin to end the day we become silent about things that matter.”

My heart and mind throb and swell in great anguish over the deplorable state of the legal system in our country and I have therefore not written on this important national issue with kid gloves, but to tell it like it is – the truth as seen through my own spectacles and nothing but the truth.

The sequence of the development of our country’s laws follows that the Members of Parliament (sometimes referred to as law-makers) enact laws which are interpreted by the courts and enforced by the police.

But the most unfortunate dilemma has happened where judges and lawyers have lamentably failed to interpret the Constitution and have thrown the entire nation into the worst type of uncertainty. We have embarrassing situations where High Court and Constitutional Judges are making 180 degree u-turns on their own earlier rulings.

Constitutional Court

And deducing from the press reports of what went on at the Constitutional Court, I strongly believe that the petitioners, i.e., Hakainde Hichilema and Geoffrey Bwalya Mwamba who were represented by the supposed strong legal team of 13 lawyers with the total accumulation of over 50 years of legal experience were not effectively and adequately represented.

What Confucius, the Chinese sage, said has not lost one iota of importance after 25 centuries: “If language is not correct, then what is said is not what is meant; if what is said is not meant, then what ought to be done remains undone; if this remain undone, morals and acts will deteriorate; if morals and acts deteriorate, justice will go astray; if justice goes astray, the people will stand about in helplessness and confusion.  Hence, there must be arbitrariness in what is said. This matters above everything.”

And indeed our country as at now stands in total legal confusion.

Mr. Colin Cunningham (the most shrewd lawyer this country has ever had) used to say that any lawyer can twist the law in anyway, but must never try to break it. I think the greatest challenge the legal system is facing in relation to the Constitutional Court is that there have been a great laxity in our courts to adjourn cases on flimsy excuses. And unfortunately this is the hangover which both the Judges and the petitioners’ lawyers over-carried to the Constitutional Court. 

And to my great disappointment as you will note from this article, they seem not to understand the “power” and the “rigidity” of the Constitution, which is regarded as any country’s “Bible.” And I had learned from Mr. Cunningham that no one can even change a full stop into a comma in the Constitution.

And when the UNIP administration decided to diffuse the “power” and the “rigidity” of the Constitution to pursue its tyrannical agenda without interference, it introduced the “referendum to end all referenda.” 

Akashambatwa Mbikusita-Lewanika’s manuscript

On the 1964 Constitution, let me quote from Akashambatwa Mbikusita-Lewanika’s manuscript, “Sower of the Independence: Case for Re-Decolonisation” of how the UNIP regime manoeuvred to take total power to control and silence their political opponents. 

Clearly, the 1969 referendum result was, and was intended to be, a licence for easily changing the Constitution, and everything else Government wants, in the direction of further consolidating and concentrating power in the presidency, including imposing proscribing all opposition parties and imposing a one-party state and continuing with the colonial practice of detaining non-conformists.

Indeed, before and since then, post-colonial governments have been “preoccupied with how to win and retain power, overriding the need for dual sense of balanced and restraint.” Thus, the post-colonial nation-state has not only been inappropriate, but also much abused, at the cost to civil and human rights and there have been no sacred cows.”

The lawyers who were representing the petitioners, i.e., Messrs. Hakainde Hichilema (HH) and Geofrey Bwalya Mwamba (GBM) were: John Sangwa, Robert Simeza, Musa Mwenye, Jack Mwiimbu, Nelly Mutti, Mwangala Zaloumis, Keith Mweemba, Majo Muchende, Mulambo Haimbe, Martha Mushipe, Chad Muleza, Vincent Malambo and Gilbert Phiri.

The lawyers who represented the first and second respondents i.e., Mr. Edgar C. Lungu and Ms. Inonge Wina were: Bonaventure Mutale SC, Professor Patrick Mvunga SC., Erick Silwamba SC, Sakwiba Sikota SC., Dickson Jere, Joseph Jalasi, Lubinda Linyama, Major Akokwa Lisita, Newton Mubonda, Chewe Bwalya and Noel Simwanza.

The lawyer from the third respondent, The Electoral Commission of Zambia: Ms. Ngombo Mulenga (in house lawyer), Abyudi Shonga SC., and Steven Lungu. And the fourth respondent, Attorney General: Likando Kalaluka SC., Abraham Mwansa SC., Martin Lukwasa, and Francis Mwale.    

And since this was supposed to be the most highly profiled case in the newly established legal institution (i.e., the Constitutional Court), and from which we had expected mental-cracking arguments from all sides, but unfortunately there is absolutely nothing recorded in the case records to point to us the greatest event in the annals of the legal system in Zambia since the petition just lapsed.

I am of the opinion that the lawyers did not effectively and adequately represent the petitioners as we had expected and anticipated.

I therefore decided to write to a man (like Mr. Colin Cunningham) “who have empires in their heads,” Professor Michelo Hansungule, Professor of Human Rights Law, Centre for Human Rights, Faculty of Law at University of Pretoria, South Africa and here is what I wrote to him:

“……anyway, I just want to find out if the Constitutional Court has the right or power to change or alter any part of the Constitution. This arises from the following passage: one party stated: ‘the question of 14 days does not rise or fall on what is right or what is wrong, but rather on the decision of the majority judges at a particular time. From the 14 days decision of both the majority and the minority judges, it is clear that the decision could have gone either way. The 3-2 decision was very close.’

“And the other party had this view i.e, they claimed that by treating the constitutional 14 days’ time-frame within which to hear a presidential election as mere technicality which could be dispensed with at the convenience of the judges was both wrong and illegal”

And Prof Hansungule wrote back and stated: “Your Highness, the new Constitution creates the Constitutional Court in article 127 which it mandates to hear:

(a)  A matter relating to the interpretation of this Constitution.

(b)  A matter relating to a violation of or contravention of this Constitution.

(c)  A matter relating to the President, Vice-President and councillors and

(d)  Whether or not a matter falls within the jurisdiction of the Constitution.

Based on this, therefore, in particular paragraph (a), the Court can interpret the Constitution but only where there is ambiguity. In order to give clarity to an ambiguity, the Court can ‘interpret’ and not ‘rewrite’ the relevant constitutional provisions, just interpret i.e., try to give what Parliamentarians had in mind at the time they enacted the ambiguous clause.

Sir ‘interpretation’ does not mean power to ‘to change’ or ‘enact any part of the Constitution.’ No. this is the reserved domain of the legislature. The idea of going to Court for an interpretation is in order to avoid going to the politicians who enacted the law to understand what they meant because they will give us a ‘political interpretation’ or interpretation according to the ruling party members which may not be in accord with national interests. We go to a professional interpretation of the meaning of a word or clause not easy to understand.

Having said this, Your Royal Highness, the issue of ‘14 days’ did not need interpretation by either the majority or the minority in the Constitutional Court. This is not an issue which is ‘ambiguous.’ We all know the meaning of 14 days from the date of filing the petition. All lawyers and judges know that 14 days mean ‘14 working days excluding weekends and holidays.’

All cases filed at the High Court are filed with that ordinary meaning in mind. Second, John Sangwa, the UPND lead Counsel raised the issue with Justice Sitali the first day they started sitting for the petition seeking to understand from the Judge how she understood 14 days to mean and she said ‘once we have started sitting for the petition, 14 days will not apply to your prejudice.’

Deducing from the fact that the issue of 14 days had been made more than clear by Judge Sitali to John Sangwa, the UPND lead Counsel on the first day of sitting in the open court, I can therefore safely take it for granted that both teams of lawyers from the petitioners and the respondents were aware what 14 days meant. And according to Prof Hansungule, Judge Sitali had stated without mincing words that ‘‘once we have started sitting for the petition, 14 days will not apply to your prejudice.”

To be continued tomorrow

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