….no organ of State including the Constitutional Court is above the Constitution
IT WILL be illegal, null and void for the Constitutional Court to proceed with the election petition which has now lapsed because there is no power that resides in any organ of the State, including the Constitutional Court itself, to override the Constitution which is the supreme law of the land.
The continued sitting and hearing of the UPND petition against the re-election of President Lungu after the expiry of the constitutional 14 days allowed is, therefore, illegal, null and void, Brebner Changala has charged.
Mr Changala said judges of the ConCourt who do not agree with the decision to proceed should recuse themselves to avoid their names and reputations being sullied in an illegality so as to avoid injuring the Constitution and their oath of office if they did not believe in illegalities.
Mr Changala said the 14 days period was a constitutional limit and mandate for the Constitutional Court to hear a presidential petition and any hearing beyond the constitutionally stipulated time frame was unconstitutional.
Mr Changala said if the Constitutional Court was going to continue sitting and to hear the petition, that would amount to the amendment or alteration of Article 101 (5) of the Constitution which was not ambiguous.
Mr Changala said Article 1 (3) of the Constitution espoused the supremacy of the Constitution which meant that no organ of the State was above the supreme law of the land and it was, therefore, illegal for the Constitutional Court to extend the hearing of the petition by four days to have President Lungu’s re-election nullified.
He stated that the three arms of Government – the Executive, Judiciary and the Legislature (including the Constitutional Court) – were not above the Constitution and it was a breach of the Constitution for the Constitutional Court to stretch a provision of the Constitution.
“The continued sitting of the Constitutional Court to hear a presidential petition by the UPND tomorrow (today) is illegal, null and void because there is no power that resides in any organ of the State including the Constitutional Court that can override the Constitution.
‘‘Article 1 (3) of the Constitution espouses the supremacy of the Constitution; meaning no organ of State is above the Constitution. The Constitutional Court cannot stretch a constitutional provision which is couched in plain language. That will be legislating from the bench which will be a violation of the Constitution under which the Constitutional Court judges took oath of office,” Mr Changala said.
Mr Changala said the Constitutional Court had breached the doctrine of the Separation of Powers which, he said, was undermining the sovereignty of the legislative authority or Legislature.
He explained that the Constitutional Court could not vacate its earlier decision that it had no jurisdiction to extend the 14
days constitutional limit to hear the petition but conclude its proceedings by midnight of 2nd September, 2016.
He said the decision by the Constitutional Court to vacate its earlier decision amounted to reviewing the decision which he said could only be done under three conditions. “The Constitutional Court can only vacate its earlier decision if the new evidence was not available at the time of making the vacated decision or if such evidence was not discoverable with due diligence or if the new evidence available will change the decision earlier made,” Mr Changala said. And Mr Changala said the judiciary as part of the Zambian society should be mindful of the anxieties and political volatility the country was in apart from the damage being caused to the economic activities as a result of the petition. Mr Changala said the sooner the petition was disposed of the better for the security, peace and prosperity of the country and that the constitutional 14 days period of the petition was used to achieve nothing because of the incompetency of the judiciary or the lawyers of the petitioners. “At this moment in time, I agree with John Sangwa, SC, that most of the constitutional lawyers and judges may not be competent due to various factors at play. I also appeal to the Judicial Complaints Authority to try and look around SADC and the Commonwealth for competent constitutional lawyers to be recruited to the bar in Zambia.
‘‘We have a case at hand where our own constitutional lawyer and Supreme Court judge Dr Phillip Musonda is a visiting Supreme Court judge of the Kingdom of Lesotho,” Mr Changala said.
Mr Changala said it was not too late for the Constitutional Court judges to’‘correct the legal mess’’ they had created.