The Supreme Court of Zambia has ordered that the High Court judgement that allowed Dora Siliya, Maxwell Mwale and Hastings Sililo to file in nominations should not go ahead until the matter of appeal against the judgement is determined by the courts of law to its finality.
The State appealed to the Supreme Court against the High Court Judgment that ordered the Electoral Commission of Zambia and any other person to allow Siliya, Sililo and Mwale file in their nominations and participate in the by-elections in Petauke, Mulobezi and Malambo Constituencies respectively after their seats were nullified.
Deputy Chief Justice Florence Mumba, whose ruling was read on her behalf by Master of the Supreme Court Yorum Mwale in his office, stated that there were critical constitutional issues that might be raised in the appeal case and therefore, it was important that a stay is granted.
“In view of the constitutional issues raised, and in view of all the authorities cited, my considered view is that sufficient ground has been shown that greater risk lies in not granting the stay. I find that it is in the interest of justice to confirm the ex-parte order granted on the 5th September 2013. I therefore order that the judgement of the High Court herein be stayed until final determination of appeal,” stated the judgement.
Justice Mumba said once an appeal has failed, an order to stay judgment of the lower court until determination of the appeal cannot be described as an order ad infinitum, adding that as a single judge she could not determine the validity of the grounds o f appeal.
“As a single judge, I have no jurisdiction to determine the validity of the grounds of the appeal. On the consequences of any perceived delay in filling the constituency vacancies or any perceived nonsuitability of any candidate for parliamentary elections, parties are free to raise such matters before a competent court,” she said.
Judge Mumba also said that she agreed with the submission by defence lawyer Martha Mushipe who argued that circumstances which would take the case out of the ordinary must be demonstrated by the state and that in exercising discretion whether to refuse or grant a stay, courts have adopted a more liberal approach as demonstrated in other matters cited before.
She also said that the prospect of whether the appeal case would succeed or not may be separated from the facts and the legal issues which form the basis of the appeal case before the courts of law.
“This is a delicate line to tread because the validity of the ground of appeal falls to be determined at the hearing of the appeal and not at this stage of the proceedings. So, critical constitutional issues such as the status of the Electoral Commission of Zambia and the status of the Judiciary public relations officer, whether or not such officers have adjudication powers, may be among the questions that may be settled in the appeal, if found relevant,” she said.
Mumba said that it was therefore in her view that the constitutional issued raised, and in view of all the authorities cited, the judgment of the High Court be stayed until final determination of the appeal.