AG asks to file answer, affidavit out of time

THE Attorney General has explained that he engaged in consultations with stakeholders in order to appreciate the full extent of magistrate Benjamin Mwelwa’s petition seeking to have political parties that have not promoted democracy within their parties deregistered by the Registrar of Societies, hence the delay to file an answer.

Magistrate Mwelwa asked the Constitutional Court to preclude the Attorney General, Electoral Commission of Zambia and the UPND in determining his petition due to their delay to file their answers and affidavits in opposition to his petition.

In this matter magistrate Mwelwa wants the Court to order the Registrar of Societies to deregister any political party which came into existence following the Amendment of the Constitution on January 5, 2016 and has not promoted and practiced democracy through regular, free and fair elections within its political party.

He is also seeking a declaration that any political party which was registered and in existence as of January 5, 2016 and which has not promoted and practised democracy through regular, free and fair elections, within its political party, has breached article 60(2)(d) of the Constitution of Zambia (Amendment) Act no. 2 of 2016 and therefore such a political party ceased to exist as a political party in Zambia on January 4, 2017.

In an affidavit in support of application to struck out petition and dismiss the matter, UPND secretary general Steven Katuka said magistrate Mwelwa’s petition does not meet the requirements for a matter that should be brought before the Constitutional Court.

Katuka said neither the petition nor the affidavit verifying facts disclose any alleged violation of the Constitution on the part of the Attorney General, the ECZ or any political party as alleged.

He said the Constitutional Court has no jurisdiction to hear the petition where a magistrate wants the court to direct the Registrar of Societies to deregister all political parties that have not held party elections since 2016.

However, magistrate Mwelwa in his skeleton arguments in support of affidavit in opposition to the interested parties’ summons to strike out the petition and to dismiss the action, said his petition was rightly before court and meets all the requirements as it is premised on the contravention of the Constitution.

He said he was at loss to understand the assertion that the petition does not disclose any cause of action as the petition clearly outlines both the facts and law upon which it is premised.

Magistrate Mwelwa stated that Katuka’s application is the one which is frivolous and vexatious in both form and contents.

“The interested party’s (Katuka) application be dismissed with costs for failure to comply with the rules of the court and then the Attorney General and the UPND be excluded from these proceedings for failure to file their answers and affidavits in opposition pursuant to Order 4 Rule 4(1) of the Constitutional Court rules statutory instrument No.37 of 2016,” he submitted. ” I also pray that I am allowed to be heard in the absence of the Attorney General, ECZ and UPND after complying with the yet to be given orders for directions pursuant to Order 9 Rule 17(1) of the Constitutional Court rules SI No.37 of 2016 Rule 17(1).”

But in its affidavit in support of summons for leave to file the Attorney General’s answer out of time sworn by Diana Shamabobo, the Attorney General explained that the failure to file an answer and opposing affidavit on time was not intended to disrespect the court but it was due to need for consultations with stakeholders.

“The respondent is desirous of filling its answer and affidavit, no prejudice will be caused to the petitioner if leave is granted to the respondent to file his answer out of time,” said Shamabobo.

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