THE Constitutional Court has rejected an application by the UPND for the Electoral Commission of Zambia to surrender all election materials into the custody of the court.
And the ConCourt is today set to make a landmark ruling on whether the UPND petition against President-elect Edgar Lungu’s victory in the August 11, 2016, poll should conclude tomorrow in accordance with the law or be extended to Thursday next week as proposed by the petitioners.
President-elect Edgar Lungu’s lawyers want the Constitutional Court to conclude its business over the presidential petition within the 14-day period provided for in the Constitution under Article 101 (5) of 2016.
Rejecting the application on the custody of ballot papers, Constitutional Court Justice Annie Sitali said UPND president Hakainde Hichilema failed to provide evidence on which the court could act upon to take custody of elections materials when the Constitution mandated ECZ to be the sole custodian.
Ms Justice Sitali said there was no proper reason given for the court to decide otherwise in the matter as ECZ were protected by the law as the sole custodians of ballot papers and all other documents and other apparatus used in any election, and in this case, the August 11, 2016, general election.
“In view of the fact that the verification process is statutory requirement and the ECZ has statutory responsibility to safeguard the elections materials, the application by the petitioners is not tenable by law. The application fails and is dismissed,” she said.
The UNPD, in their application, requested the court for the preservation, detention and custody of all election material, including ballot papers and all documentary records, into the custody of the court pending hearing and determination of the presidential petition against the declaration of Patriotic Front candidate Edgar Lungu as the winner of the August 11, 2016, general election.
Ms Justice Sitali has also dismissed an order of interim injunction in which the UPND prayed that the commission must not make any alterations or changes to the election records as doing so would distort the documentation.
She said the petitioners have not provided evidence that ECZ would tamper with the elections materials, including ballot papers, and information records kept under their custody.
Meanwhile, the Constitutional Court is today expected to make landmark rulings in the 14-day period for hearing the petition as well as the application for leave to amend the petition.
Ms Justice Sitali indicated yesterday that she would make a ruling on the submissions made on Tuesday where the UPND proposed that on the 14-day period, the court must not include Saturday and Sunday since the court was not sitting during the weekend.
But respondents’ lawyers argued that the Constitution provided 14 days as the time frame during which a presidential election petition should be heard, or the court loses the mandate to hear such an application thereafter.
And Constitutional Court president Ms Justice Hildah Chibomba is expected to hear status conference on the UPND president’s petition against President-elect Lungu’s failure to hand over power to the Speaker of the National Assembly Patrick Matibini in view of the petition filed against the declaration of his re-election into office.
Mr Hichilema, together with his running mate Geoffrey Bwalya Mwamba, filed an application into the Constitutional Court against Mr Lungu and his running mate Vice President Inonge Wina, alleging that they were beneficiaries of an invalid election marred with numerous irregularities.
They requested the court to declare null and void the ECZ declaration, alleging irregularities in the manner the commission managed the election.
Meanwhile, the Constitutional Court yesterday called back to court lawyers from both parties to deliberate on the controversial 14 days period which a presidential petition must be heard and concluded as provided for by law.
The court has since ordered both parties to file written submissions by this morning in order for the matter to be heard and the court to render a ruling thereafter.
President Lungu’s lawyers have argued that the court must conclude hearing the petition by tomorrow which was exactly 14 days from the date of filing, as provided for by the Constitution, as opposed to the petitioners’ submissions that because the court did not sit on Saturdays it must be extended.
UPND president Hakainde Hichilema’s lawyers had indicated to court that since there were no sittings over the weekend, the 14 days period should end on Thursday 8th September 2016 next week as opposed to Friday 2nd September 2016, as provided for in the Constitution.
According to the application filed by President Lungu, they have called on the Constitutional Court to make a final determination over the 14 days provision in which an election petition should be heard as provided by the Constitution.
They have cited Article 103 (2) which states that the Constitutional Court shall hear an election petition relating to the President-elect within 14 days from the filing of the petition.
They have also cited Article 269(d) that limits working days or other exclusion days if a matter is beyond six days, and they are relying on Order XV Rule 7 that limits the court’s authority to amend, or extend, time if such a time or period is stipulated by the Constitution.