Courts in confusion


Something has gone wrong in our judiciary, very very wrong.

How can we have HH and GBM seek orders to stop the inauguration of President Edgar Lungu in two separate courts at the same time?

How can this happen in a country which believes in the rule of law and has a functioning judiciary?

How indeed can this happen in a country that espouses and subscribes to the principle of stare decisis which simply means that courts are enjoined to stand by decided matters or “stare decisis et non quieta movere”.

This doctrine prescribes that no lower court can change any decision that a superior court has made.

So what is the High court doing entertaining a matter that was already decided by the Constitutional Court?

How can the High Court which has absolutely nothing to do with the election of a President be asked to issue an order to stop an inauguration of a duly elected President? This is a gross abuse of the justice system which should not be entertained.

It is a known fact that the Constitutional Court dismissed the election petition in which the Mr Hakainde Hichilema and Mr Geoffrey Bwalya Mwamba were challenging the re-election of Mr Edgar Lungu and his running mate Ms Inonge Wina for want of prosecution on Monday this week.

Despite the court’s ruling, Mr Hichilema and Mr Mwamba have initiated two new actions on the same matter, same facts but before two separate courts. They have initiated another cause of action in the High Court contending that the Constitutional Court did not afford them reasonable time in which to hear their petition.

Surprisingly, the same individuals, Mr Hichilema and Mr Mwamba, applied to the Constitutional Court seeking interim relief that should halt the inauguration of President and Vice-President-elect next week on Tuesday.

Both matters are to be heard at the same time this morning.  This is wrong. It is a mischief that should not be entertained. How can the same matter be heard by both the superior and subordinate court? Why should the Constitutional court hear the matter directly connected to the dismissed petition?

This amounts to sheer acts of desperation by the litigants in this case to impede the scheduled swearing-in ceremony of President Edgar Lungu and Ms Inonge Wina. The attempt to obtain an order is a subversion of the people’s will expressed through the ballot box and as sanctified by the returning officer Judge Chulu who declared President Lungu duly elected.

Nothing has happened to change the declaration.

What is happening is a clear abuse of the court process in an effort to subvert the people’s will.

The matter of a challenge to the election of President Lungu ceased once the petition by HH and GBM lapsed in the ConCourt.

Neither the ConCourt nor the High Court has any right to interfere in the constitutional authority of the Electoral Commission of Zambia to declare the winner who the Chief Justice should swear in as President of the Republic of Zambia.

Zambians will not take kindly to the manipulation that is being engineered to subvert and undermine democracy by court processes that have no firm foundation in law. There is nowhere in the law where the ConCourt is empowered to declare a winner under Article 101 of the Constitution under which President Lungu was declared as the winner, neither does the Constitution confer on the ConCourt the power to determine inauguration.

The power of the ConCourt ends at hearing and determining a petition.

There are very clear principles of law which are being abrogated with such impunity and disregard that a clear impression is being created that much more than the law is in play in this matter.

Firstly the principle is res judicata which means that the matter cannot be litigated twice. In this case the matter was concluded in the ConCourt when the petition lapsed. That was the end of the matter.

Why HH and GBM should be entertained by the High Court and the Concourt for the second time. What are the compelling factors or reasons for this?

Would the same courts of law extend the same latitude if the people involved were ordinary Zambians without any means?

We think not.

It is abundantly clear that the impartial and fair dispensation of justice is of great concern to all regardless of status in society because courts serve as the only reservoir that guarantee protection of human dignity.

As such, there is great need to have upright and resolute judicial officers to shoulder such a daunting and heavy responsibility to ensure that firm but expeditious disposal of legal disputes is realised.

We say so because the multiplicity of actions appears to leave the court prone to a spectre of public embarrassment as there is a high likelihood that two courts might offer conflicting ruling on the same matter.

However, we are of the view that a stitch in time saves nine. It is better to deal with the problems that have manifested at the Constitutional Court now because if we wait and deal with them later, they might become insurmountable.