“banner728.gif"

High Court dismisses Syakalima NDF petition

THE Lusaka High Court has struck out the petition by Chirundu UNPD member of parliament Douglas Syakalima in which he was seeking an order that some provisions of the National Dialogue Act are in conflict with provisions of the Constitution as they violate his rights and freedom of assembly.

High Court judge Mwila Chitabo dismissed the petition for lack of merit as Syakalima has failed to discharge his onus of proof, which is required in the petition.

“The standard is higher than that in ordinary civil matter that is on the balance of probability but not beyond all reasonable doubt as required in criminal matters; the standard that clearly satisfies the court that the petitioner has proved his case. The petition is destitute of any merit and it is dispatched and dismissed,” said judge Chitabo.

In this case Syakalima wanted the court to declare and order that certain sections of the national dialogue Act were violating his rights and freedoms.

The petitioner was seeking a declaration that provisions of section 3(h) 5, 6 (2) 12, 17 (1) (a) and (b) and 18 (1)(a) of the national dialogue constitution, electoral process, public order and political parties Act No 1 of 2019 are in conflict with the provisions of Articles 11, 12, 18, 19, 20, 21, 23 of the Constitution and therefore, null and void.

However, the state urged the court to dismiss Syakalima’s petition because it lacked merit.

Delivering judgment judge Chitabo found that the petitioner had not demonstrated how his participation in the debate of the bill which he vehemently opposed as it succeeded and was enacted into law was an affront to democracy constitutionalism.

“There is no challenge to legislative process of the enactment of the Act. It follows, there is no force in the complaint,” he said.

The Court said by opting to represent the electorates in his constituency and having secured the mandate to represent the electorate, Syakalima had willingly relegated his freedom of expression in the national assembly or any legislative process to respect the process.

Justice Chitabo found that the freedom of association was absolute and that the right of the electorate by the petitioner as a member of parliament for Chirundu to represent them at the Forum as required by law.

“There is no evidence that electorates authorised their representative to stay away from the Forum,” he said.

The judge further ruled that the Chirundu member of parliament had not demonstrated how he had been discriminated or how he had been treated less favourably as compared to another person or other persons on what basis, social status, religion, sex, political affiliation, religion tribal or race.

The Court said sanctions for absenteeism were reasonably required and are necessary derogations.

It also ruled that there is no evidence of slavery or forced labour as alleged by the Chirundu member of parliament.

“The petitioner had palpably failed to discharge his burden. In the present national dialogue Act certain duties have been imposed on the attendants or delegates,” ruled the court.

Justice Chitabo ordered each party to bear its own costs to the proceedings as the custom of the superior courts in “our jurisdiction and indeed the court was that where issues of public interest and constitutional considerations were raised, each party bears its own costs.”

He granted the aggrieved party leave to appeal the judgement saying all appeals from a decision touching on the Bill of Rights lies in the Supreme Court.

2 Comments

  1. Esther Tembo

    May 14, 2019 at 1:09 pm

    “There is no evidence that electorates authorised their representative to stay away from the Forum,” he said.
    But where is the evidence that the electorates autorised their representative to participate to the Forum?

  2. Muntu

    May 13, 2019 at 11:06 pm

    This is a poor judgement. Supposing they are arrested for not attending, how would he interpret the law. This judgement cannot be referred to for direction in future cases because he has misdirected himself in law. You don´t need to be a lawyer to understand that this is poor judgement.

Leave a Reply

Your email address will not be published. Required fields are marked *