LUSAKA High Court judge Mwila Chitabo has set November 23 for ruling on preliminary issues raised by Solicitor General Abraham Mwansa in which he wants the court to dismiss the UPND’s right to be heard case. UPND president Hakainde Hichilema and his vice-president Geoffrey Mwamba have asked judge Chitabo 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.
But Mwansa has raised three preliminary issues on whether the High Court can interpret, in respect to the time frame 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.
The Solicitor General also wants the High Court to determine whether it can inquire into the question of 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.
Mwansa urged judge Chitabo to dismiss the right to be heard case, saying the High Court has no jurisdiction to review a judgment which was already settled by a superior court, in this case the Constitutional Court. He said the ConCourt was properly seized with jurisdiction to interpret the presidential petition, which they could only hear within 14 days as provided for under Article 101 (5) of the Constitution. Mwansa added that while it was the jurisdiction of the High Court to enforce the Bill of Rights, the jurisdiction to interpret whether it had been violated falls under the ConCourt in accordance with Article 128 (1) (a) of the Constitution.
“This court has no powers to direct the Constitutional Court to rehear the presidential election petition, which issue was finally determined by the Constitutional Court by its judgment and which judgment is not appealable. We pray to this court that we may be granted the motion to have the petitioners’ petition dismissed in its entirety as it is misconceived at law and lacks law merit. This is not a petition that should have been brought before this court. It’s a waste of the court’s time,” said Mwansa.
Earlier, UPND lead lawyer John Sangwa, State Counsel, said dismissing the presidential petition without it being heard was not fair, adding that the time allocated to it being heard was unreasonable although it was set out in the Constitution.
“This is the reason why the petitioners want the High Court to pronounce itself on whether the act of the Constitutional Court amounted to the violation of the petitioners’ right to be heard or not as the issue of challenging a presidential election is a civil right which must be enjoyed by every citizen of Zambia,” he said.
Sangwa said being the case, the question raised by Mwansa whether the High Court could interpret otherwise, in respect to the timeframe in which the presidential petition election must be head was irrelevant. He said the ConCourt had earlier given directives of how the process would proceed but the same were abandoned two days before the 14 days of hearing the petition expired. Sangwa said the ConCourt was established under the law as such it was supposed to be independent, impartial by fairly hearing the petition and not what transpired.
Judge Chitabo set the ruling date after hearing both parties.