…as Constitutional Court breaches Order XV rule 7 of its own rules
The Constitutional Court for some inexplicable reasons has extended the hearing of the election petition by four days against the law which provides for 14 days.
The decision by the court follows the address by UPND leader Hakainde Hichilema and his running mate GBM who addressed the court after the lawyers representing them abandoned the case. Lawyers representing President Lungu made it very clear that lawyers representing the petitioners had 14 days in which to prepare their case. The Court itself in two rulings admitted that the petitioners had 14 days in which to present their case before the court. The court actually stated that it has no jurisdcation to preside over the matter after 11: 59 hours on Friday 2 Septemebr, 2016.
However, in a surprise ruling which has taken the legal fraterninty by surprise the court has exteded the hearing by an additional four days beyond the 14 days provided by the law and lawyers are now asking why the extention when the same court stated unabiguously that it could not go beyond yesterday.
TheUPND petition was by yesterday on the verge of collapsing in the Constitutional Court after the UPND leader was deserted by all his lawyers he had assembled for the case.
Mr Hichilema was forced to take the stand after his lawyers walked out on him, effectively abandoning him and the UPND leader vented his anger on the court and accused the justices presiding over the petition of having a predetermined agenda.
But after pleading with the full Constitutional Court bench, the court extended the hearing of the petition to next week Thursday, effectively adding a four-day extension from the 14 days constitutional limit.
The Constitutional Court had earlier thrown out an application by UPND to refer the matter regarding the 14 days interpretation to the High Court.
In its ruling, the Constitutional Court reminded petitioners that it being a superior court, by all legal standards, cannot refer a matter to a subordinate court.
Mr Hichilema was yesterday deserted by almost a dozen his lawyers and personally took the stand and launched an attack against the Constitutional Court Judge Ireen Sitali apart from accusing her of bias in the manner she presided over the preliminaries his lawyers had raised in the petition.
Mr Hichilema accuse Justice Sitali of being biased and deliberately misleading his lawyers with the earlier detective that the petition hearing would go up to Thursday next week but U-turned against her own ruling.
He claimed that the Constitutional Court already had a predetermined judgment on the petition alleging that it was impartial and a miscarriage of justice.
He claimed that the court had failed to uphold the Constitution to defend him but that the world was watching Zambia.
This was after the petitioner’s lawyers walked out on the petition because the time scheduled for hearing was too short to allow them exercises their profession diligently in accordance with their legal oath.
John Sangwa SC led the petitioners’ advocates into recusing themselves from what they termed improper proceedings before court.
They charged that it would be against their professional ethics to proceed with the matter as it would not make sense to proceed with the limited time of about four hours remaining before the expiry of the 14 days petition hearing period in line with Article 101 (5) on the Zambian Constitution.
Hichilema stated that he had come to seek Justice but had been failed by the Court insisting insisted that he should not have been bound by time limits as stipulated by the Constitutional Court his right to heard was a fundamental human right.
However in their defence, respondent lawyers emphasized that a focused approach by the petitioners would have adduced the requisite evidence, but that some of the applications were being made as late as yesterday.
And according to legal experts, in the past 13 days, nobody stopped the ConCourt from sitting on Saturdays and Sundays if they so deemed it necessary. Since the matter before the Court exceeded 6 days, Article 269 (d), read together with Article 103 (2) and Order XV rule 7, allowed our ConCourt to sit, hear and determine the petition on Weekends. The failure and incompetence of Martha Mushipe and company to do their Job should not be imposed as a punishment on Zambians.
Instead of presenting their petition within the stipulated 14 days and guiding the ConCourt accordingly, UPND leader Hakainde Hichilema and his running mate and Veep Geoffrey Bwalya Mwamba started by asking for injunctions, amendments, fresh petitions, inclusions and so on. And tomorrow – Friday, 2nd September, the 14 days will be gone.
Yesterday, they were reminded by President Lungu’s Lawyers that by law, they have 2 days to finish their case. They cried foul forgetting that you cannot override the Constitution by mere pity or sympathy. They forgot that the Constitution does not change overnight. If the Constitutional court Sits after Friday, 2nd September 2016 – they will have no authority to make judgment and they will have broken the oath they took to protect and defend the Constitution.
The biggest question is, will the Court participate in an illegality of hearing the matter outside the 14 days and set a precedent that will haunt them in future or will the ConCourt do the right thing that will make future decisions as clear and as predictable as possible in interpreting the law?
Failure by the ConCourt to abide by the provisions of the Constitution will have its own grave consequences. They will be breaching the very Constitution they swore to defend.
As expected of the learned team of judges on the ConCourt bench when they decide to do the right thing and enforce the provisions of the Constitution, we expect a final ruling by 16:13 hours tomorrow as that was the time at which the petition was successfully lodged with its original and irregular 22 witness statements on Friday, 19th August. Thereafter, the inauguration of the President Elect (eotwikwite) will, by law, be held on a Tuesday, (13th September, 2016) Seven days after the ConCourt ruling.