UPND lawyer John Sangwa yesterday submitted that he is not asking the High Court to reopen the Presidential election petition or reviewing it because the Constitutional Court is factus officio but wants it to determine whether what the Constitutional Court did was consistent with Article 18 (9) of the Constitution.
Earlier, Solicitor General Abraham Mwansa argued that the High Court has no jurisdiction to hear a case relating to the interpretation of the Constitution as only the Constitutional Court has such power. In this case which is before judge Mwila Chitabo, UPND leader Hakainde Hichilema and vice-president Geoffrey Mwamba asked the High Court to determine whether their right to be heard in a Presidential election petition was violated when the Constitutional Court dismissed it on September 5, 2016 for want of prosecution. Responding to Mwansa’s preliminary issues that the matter be dismissed with costs because it was misconceived as the High Court had no jurisdiction to hear such an application, Sangwa, State Counsel, however, said it was only the High Court which has the responsibility to determine whether or not the Bill of Rights has been violated by any court, including the Constitutional Court.
He said the act of the Constitutional Court which occurred on September 5, 2016 contravened the Constitution and as such, it was illegal.
He said it was only the High Court clothed with the power of determining whether that right was violated.
Sangwa said the petition before the High Court was about what the Constitutional Court did on September 5, 2016 and it was fit to be determined by the High Court.
He said the petition was filed on the strength of Article 28 (1) of the Constitution.
Sangwa said the High Court had powers to control the three arms of government and that nobody was above the Constitution including the Constitutional Court, adding that if it was perceived to have violated the Bill of Rights, the High Court had to determine the matter.
“Moreover, we are not asking this court to reopen the Presidential election petition or reviewing it because the Constitutional Court is facto officio but we want it to determine whether what the Constitutional Court did was consistent with Article 18 (9) of the Constitution,” said Sangwa.
Meanwhile, Mwansa in his arguments, urged the court to dismiss Hichilema’s petition with costs because it was misconceived as the High Court had no jurisdiction to hear such an application.
Mwansa also wants to know whether the court
could interpret otherwise, in respect to the timeframe in which the Presidential election petition must be heard and whether the determination of the petition was a civil right as to bring it under article 18 of the Constitution.
Mwansa wants the High Court to determine whether it can inquire into the question of fair hearing when the petition was not heard because of inertia and negligence of the petitioners who did not keep to the time period of the petition being heard within 14 days.
The Solicitor General submitted that the Constitutional Court had the original and final power to hear a matter relating to the interpretation of the Constitution and not the High Court.
He added that according to the provision of the law, the interpretation or reviewing of the Constitution was based in the Constitutional Court and not the High Court. Mwansa said the determination of any matter before the Constitutional Court or indeed any other court could not be termed a violation of the right to a fair trial. He further submitted that had the matter for the Presidential election petition been heard by a lower court, the petitioners could have been entitled to the right to appeal to a superior court.
“However, the petitioner’s matter was determined by the Constitutional Court exercising it’s final jurisdiction in the judgment delivered on September 5, 2016 and is not appealable and the same cannot be reviewed by this honorable court because the proceedings before you emanate from the majority judgment of the Constitutional Court dismissing the petitioner’s election petition for want of prosecution and these proceedings have nothing to do with the determination of any civil rights or obligations or indeed the violation of any of the Articles 11-26 of the Constitution inclusive,” said Mwansa./