BRIGADIER General Godfrey Miyanda has described as a fabrication, if not a deliberate misrepresentation, justice minister Given Lubinda’s assertion that there was a conclusive judgment in the Hakainde Hichilema presidential election petition.
A fortnight ago, Lubinda asserted that on September 5, 2016 “when the Constitutional Court passed their judgement over the matter, it came to a complete close”.
He asserted that there was no election petition currently being heard by the courts of law.
“The matter that Hakainde and Geoffrey Bwalya Mwamba are following up in the High Court is an issue where they have asked the Court to determine whether they were given their right to be heard by the Constitutional Court or not. It is not the same as the petition. The election petition was concluded and that is the reason why we have a President in Zambia in the name of President Edgar Chagwa Lungu. There is no dispute whatsoever on that matter. Now let us assume that the High Court said to Hakainde that he was not heard, that does not necessarily mean that the election of Edgar Chagwa Lungu is nullified. Far from it. And I would like to ensure that the Zambians are told the truth that there is only one incumbent President until 2021. That President is Edgar Chagwa Lungu and his PF. They are the ones in government,” said Lubinda.
But Brig Gen Miyanda stated that Lubinda’s assertion was a lie because there had been no judgment in the Hichilema/Geoffrey Mwamba presidential petition.
“This is a fabrication, if not a deliberate misrepresentation. Ordinarily, a judgement follows the giving of evidence by the parties to a petition, with the attendant cross-examinations, re-examinations and finally submissions (legal arguments),” he explained. “The court would then retire to consider the evidence and submissions. I was in court on Friday 2nd September 2016 from about 09.30 hours (after being chased from the court grounds by some strangely dressed uniformed persons – maybe security, maybe PF cadres) until soon after midnight on Saturday 3rd September 2016; no such judgement was delivered in open court. Is the minister confirming that a different court, otherwise known as a Kangaroo Court, took place elsewhere? If there was no judgement then the Constitutional Court door has remained wide open and hence there was nothing that came to a complete close – no bwana minister, you have lied that the ConCourt has delivered a judgment in the Hichilema/Mwamba petition.”
Brig Gen Miyanda stated that if the judgment does exist, it was a fraud and an actual judicial scandal in Zambia.
He stated that if what he had stated was treason, “then so be it!”
Brig Gen Miyanda dismissed as political gibberish and not law Lubinda’s assertion that there was no election petition being heard by the courts of law.
“The genesis of the Hichilema/Mwamba complaint in the High Court is the premature baby birthed by the ConCourt. The Petitioners’ claim of ‘not being heard’ is a valid grievance that the Constitutional Court did not hear the petition (that is, receive evidence) nor did they determine (consider the evidence and arguments and arrive at a decision) in terms of the Constitution of Zambia (Amendment) Number 2 of 2016 and the Electoral Process Act Number 35, 2016,” he explained. “Contrary to Minister Lubinda’s judgement, if the High Court holds that the petitioners were not heard, it follows that their petition is still alive in the ConCourt incubator and must be nurtured and retrieved therefrom, since one age-old principle of law is that there is no right without a remedy.”
Brig Gen Miyanda stated that to say that the matter before the High Court had nothing to do with the petition was hollow and had no legal basis but an attempt to oust the jurisdiction of both the ConCourt and the High Court to deliver justice, even in the face of the so-called 14 days limitation.
He contended that reliance on the 14-day limitation provision was misconceived as the provision had no express fetter against either the ConCourt or the High Court and was clearly a departure from well-founded fundamental principles on the jurisdiction of courts to hear and determine conclusively matters before them.
Is the Minister of Justice labelling the petition before the High Court illegal and/or a mere waste of time? That petition is too serious to be wished away, even by the very ConCourt,
Brig Gen Miyanda stated.
He also stated that it was a lie to allege that ‘the election petition was concluded’ since it was not heard nor determined in accordance with Article 101 of the Constitution (Amendment) Act Number 2 of 2016, which President Lungu assented to on January 5, 2016.
“The presidential petition was only to be concluded when, after hearing evidence and submissions from the parties, the Constitutional Court made the following pronouncement in open court and in the presence of the parties, along the following lines: (a) that the Respondent, in this case Presidential Candidate Lungu, was validly elected; or (b) that Presidential Candidate Lungu was NOT validly elected; or (c) that it was Presidential Candidate Hichilema who was validly elected; or (d) that there was non-compliance with any provision of the Constitution as amended and/or other law, and in this case ConCourt orders what should happen, for example hold a re-run of the election,” Brig Gen Miyanda explained. “I maintain that no such pronouncement or ruling was given in open court either for candidate Edgar Chagwa Lungu or candidate Hakainde Hichilema. Hence there is no conclusion as alleged by the honourable minister.”
On Lubinda’s hypothetical conclusion that the election of President Lungu would not be nullified if the High Court said to Hichilema that he was not heard, Brig Gen Miyanda stated:
It means that there is no judgment of the said electoral petition – period!
On Lubinda’s remark about telling Zambians the truth that there was only one incumbent President, Edgar Lungu, until 2021, Brig Gen Miyanda stated: “..the truth that is awaited by all right thinking Zambians is the truth of the evidence to be provided by the witnesses for the petitioners, the witnesses for the respondents, the legal arguments by both parties, the determination by an impartial ConCourt and the final declaration by the same impartial ConCourt that either candidate Lungu had been validly elected, or candidate Hichilema had been validly elected; or that in view of non-compliance with the Constitution (Amendment) Number 2 of 2016 and other law, the ECZ should conduct a re-run of the presidential election. In this regard, this must be the truth communicated in a judgment by the ConCourt in this Christian Nation. Why has President Lungu been reluctant to let God reveal the truth through ballot re-counts and truthful evidence tested by rigorous cross examination by both sides?”
He stated that it was not a credible excuse to say that President Lungu was sworn in because a “forged cheque does not become good just because it has been cashed!”
“My Big Question is: who applied or complained to the ConCourt to review their decision delivered on Friday at 23.45 hours on 2nd September 2016? Under what provision? Where, when and how was that application/complaint, if any, managed? And, further, if the ConCourt’s jurisdiction ended at midnight leading to 3rd September, where did the same Court acquire the jurisdiction to dismiss or pass judgment on 5th September 2016?” asked Brig Gen Miyanda.