(By Namatama Njekwa and Pauline Dikuelo)
STATE counsel John Sangwa has urged the Constitutional Court to determine on merit the appeal against the decision of the single judge who refused to block the swearing into office of President Edgar Lungu and his vice Inonge Wina in 2016.
Sangwa is representing UPND president Hakainde Hichilema and party vice-president Geoffrey Bwalya, who have challenged the swearing into office of President Lungu and Vice-President Wina.
The UPND appealed the decision of a single judge after the 10 days allowed by the rules of the court and without leave and Attorney General Likando Kalaluka applied that the appeal be struck out because the court did not have jurisdiction to entertain it.
During hearing of the matter in a packed courtroom on Tuesday, Sangwa submitted that Kalaluka’s arguments that the appeal be dismissed because it did not comply with the rules of the court had been advanced ignoring the provisions of Article 118 of the Constitution.
He said the amended Constitution introduced Article 118 which says justice shall be administered without due regard to procedural technicalities.
Sangwa said the appeal should be decided on its merit, saying proceeding otherwise would make Article 118 redundant.
He submitted that the effect of Article 118 was that cases should be dismissed on merit and not technicality.
“The fact that the appeal was not filed within 10 days is not fatal but will survive on the provision of Article 118. Not every technicality is bad, the court can applaud so long it does not go to the root of the case, it’s curable,” Sangwa said.
He added that the Attorney General would not suffer any injustice but that a great deal of injustice would be occasioned if the appeal is dismissed.
“I urge the court to maintain the spirit of Article 118 and allow this appeal to be heard and not to be dismissed as prayed by the learned Attorney General,” submitted Sangwa.
But Kalaluka submitted that the appeal by the UPND should be dismissed with costs because the appellants did not seek leave of court to file it out of time.
“I wish to bring this to the attention of the court that I have interrogated the current Constitution of Zambia and I find that there is not a single position that allows an appeal or the re-hearing of the application that was determined by the single court,” he said.
Kalaluka said the court had no jurisdiction to hear an appeal from the decision of a single judge.
“Our contention is that this is a jurisdiction issue. As long as this application was not made within 10 days, this court is devoid of jurisdiction,” he said.
Kalaluka argued that the failure by the appellant to adhere to the rules of the court should result in the dismissal of the appeal.
After hearing the submissions, judge president Hildah Chibomba, sitting with other Constitutional Court judges, reserved ruling to a date to be communicated.
Meanwhile, the court urged Kalaluka to prepare himself for hearing of another matter involving Hichilema and GBM versus President Lungu.
This was after Kalaluka sought an adjournment in the matter, saying it was Solicitor General Abraham Mwansa who was handling the case but was currently out of jurisdiction.
The UPND in this case cited the Speaker for failure to take over executive powers but he was misjoined from the proceedings.
The matter was adjourned to yesterday at 14:00 hours.