THE happenings at the Constitutional Court in which five judges have recused themselves from hearing an appeal it made has raised many issues.
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One of the areas of concern is the widely accepted notion that the courts make independent decisions and are not subject to any external influences.
The Judicial Service Commission has not said anything to assure the public that there is no outside interference in the operations of the ConCourt or any other court in the country.
Moreover, the matter at hand is one that pits the ruling United Party for National Development (UPND), now more or less the government and the Patriotic Front, the former governing party.
The appeal case involves the controversial Kabushi and Kwacha constituencies disputed by-elections in which the Electoral Commission of Zambia (ECZ) barred Mr Bowman Lusambo and Mr Joseph Malanji from the PF even after they were adjudged eligible by the ConCourt.
Five Constitutional Court Judges have recused themselves from hearing the appeal case in which the Kabushi and Kwacha constituencies by-elections have been petitioned following the Constitutional Court judgement that Mr Lusambo and Mr Malanji were eligible but were instead barred by the ECZ.
The five Justices who have recused themselves include the ConCourt President Margaret Munalula, Judge Martin Musaluke, Judge Anne Sitali, Judge Palan Mulonda, Judge Mungeni Mulenga and Judge Judy Mulongoti.
The recusal of the five ConCourt Judges has left only the newly appointed Justices who shall have to preside over the matter when it next comes up for hearing – and give their own interpretation.
According to sources, the five Judges decided to recuse themselves after they were informed that an instruction had been issued to ensure that the appeal over the Kabushi and Kwacha parliamentary seats should not succeed.
The sources said the five Judges hold the view that the Kwacha and Kabushi by-elections were void.
They said it would be suicidal for them to go against their earlier ruling that nullification of a seat does not amount to disqualification of a candidate.
When the appeal hearing came up on Tuesday morning, all the parties and journalists were ordered to leave the court room and only the Judges remained for a prolonged period.
Sources close to the matter have revealed that the court was informed that there had been instructions not to overturn the High Court decision to declare both Mr Lusambo and Mr Malanji ineligible to participate in the by-elections.
It must be noted that the Kabushi and Kwacha by-elections were held under very contentious circumstances such that the UPND appeared to ride roughshod over all hindrances to hold them.
Mr John Sangwa, one of the country’s leading constitutional lawyers has argued that the UPND stole the by-election.
Therefore, it appears as though the onus is left on the remaining judges to make a ruling that is favourable to the party in government.
Whatever ruling the make, they must show the nation that the Judiciary is not under capture of any grouping with vested interests.
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