The Lusaka High Court has cleared UPND’s Zambezi West constituency contender Charles Kakoma to recontest his seat after it was nullified on account of corrupt and illegal practices.
High Court Judge Judith Mulongoti said she was persuaded and inclined to go by Mr Kakoma’s arguments in light of the fact that the court did not find him guilty of having committed an illegal act or corrupt practices.
Judge Mulongoti said it was cardinal that Mr Kakoma be afforded an opportunity to be heard before his name and particulars are stated in a report as being found guilty.
Judge Mulongoti said she was inclined to hold that it was premature for her to consider whether the action was statute and barred or not as canvassed by the petitioner’s counsel and that section 22(b) of the Electoral Act provides for two stages, the conviction and report of guilty as argued.
He said having found that the first and second questions of the motion had failed she ordered each party to bear own costs.
This is in a case in which PF’s Christabel Ngimbu sued Mr Kakoma and the Electoral Commission of Zambia (ECZ) to disqualify the former from re-contesting the Zambezi West by election.
Ms Ngimbu said that it was incumbent upon the High Court to prepare and for the Registrar to deliver a report to ECZ and the Director of Public Prosecutions(DPP)on the findings that Mr Kakoma committed corrupt and illegal practices in respect of the 2011 elections.
She had prayed that Mr Kakoma should be barred from contesting any parliamentary election in Zambia for the period of five years from the date of the report prepared by the High Court.
Ms Ngimbu further asked ECZ to enforce the Electoral Act No.12 of 2006 particularly the disqualifications provisions for election to the National Assemblyand also the DPP to prosecute Mr Kakoma for corruption under the Electoral Act No.12 of 2006.
Her notice was supported by an affidavit in which she swore inter alia that after High Court dismissed her petition, she appealed to the Supreme court which on October 10,2013 found that Mr Kakoma committed corrupt practices and his election as MP for Zambezi West was nullified.
It also submitted that in line with section 9 of the Supreme Court Act as read with sections 22 and 104 of the Electoral Act No.12 of 2006 the High Court is obliged to enforce the Supreme Court judgment by preparing a report containing the findings of corrupt and illegal practices.
But Mr Kakoma’s counsel argued that the Court did not make any findings of corrupt and illegal practices.
It was also argued that the provisions of section 104(6) must be construed according to the plain and ordinary meaning of the words used.
Mr Kakoma’s counsel also relied upon the case of Lusaka Vs Cheelo where the High Court was required to prepare a report where it finds that any illegal practice had been committed.
His lawyers also argued that Mr Kakoma was heard at trial of the election petition and there was no need to provide him with an opportunity of being heard again and that such would exercise in futility.
Later outside court Mr Kakoma said PF should be very embarrassed for abusing the court process by going to court several times when the court rules in favor of an opposition party .
He said the ruling should be used as a case study to many similar pending court cases.
Mr Kakoma said he was already in his constituency and ready for the by-election.