THE Lusaka High Court has ruled that nominated member of parliament Raphael Nakacinda stands expelled from the MMD until the court rules otherwise.
Judge Pixie Yangailo said granting the injunction sought by Nakacinda will be akin to restoring his membership to the MMD, which will disturb the status quo.
She said Nakacinda lodged his application when he had already been expelled from the MMD, and the injunction he was seeking to restrain an event that had already occurred could not be issued.
“I do not find that the plaintiff’s application for injunction has merits. I do not find that this is a case where it would be proper for this court to exercise its discretion by granting an interim injunction as claimed by the plaintiff,” judge Yangailo ruled.
“Accordingly, the application is dismissed with costs to the defendants to be taxed in default of agreement.”
In this matter, Nakacinda has sued the MMD, challenging his expulsion from the party on June 20,2020.
Nakacinda has cited MMD national secretary Elizabeth Chitika in the matter, wanting the court to declare that his purported expulsion was illegal by reason of procedural impropriety and absolute defiance of the established rules of natural justice.
He also wants an order of interim injunction restraining Chitika either by herself, agent, servant or otherwise whosoever from continued interference with his membership in the MMD.
In his statement of claim, Nakacinda stated that in a letter dated June 22, 2020 Chitika informed him that he had been expelled from the party on allegations of arrogance, insubordination and disregard for the party leadership, among others.
Nakacinda stated that Chitika indicated in the said letter that the party was unable to serve him a letter requesting him to attend a disciplinary hearing on November 15, 2019 based on an exculpatory letter rendered by him (Nakacinda) sometime in 2016 and by their own admission, the party proceeded to consider its failure to notify him of the then pending disciplinary hearing with regards to arrogance, insubordination and disregard for party leadership.
But in defence, MMD said prior to Nakacinda being issued with an expulsion letter, charges were leveled against him in a letter dated November 15, 2019.
The party said the said letter further called for the plaintiff to attend disciplinary hearing in relation to the charges leveled against him.
It said the entire disciplinary process was a continuation of the disciplinary proceedings that had been commenced in 2016 against Nakacinda, among others, and the latter had already in 2016 written an exculpatory letter but no hearing was held because he was working with Felix Mutati, Mwansa Mbulakulima and George Kangwa and convened an illegal convention where they purported to have taken over the leadership of MMD.
The party said it did not fail to serve Nakacinda with the letters concerning disciplinary proceedings as several copies were left at various places, including his home but he misguidedly believed he could cripple the proceedings by refusing to accept the letters from MMD.
“The plaintiff was well aware of the ongoing disciplinary proceedings against him because he was called on several occasions at Parliament, his home, Parliament Motel and two police stations to collect the letter whose contents were made known to him in public display of the indiscipline and insubordination that had resulted in his expulsion. The plaintiff refused to collect the letters or at the very least avail himself at the party secretariat after having knowledge that his presence was required there,” MMD said.
“The plaintiff was at all times aware of a letter leveling charges against him, he however neglected and refused to receive the letter and now comes before court alleging that he was never aware contrary to the well known truth.”
The party said it would produce newspaper articles, videos and audio recordings to demonstrate Nakacinda’s treachery, insubordination and indiscipline.
MMD said natural justice was fulfilled by availing Nakacinda the opportunity to defend himself but he refused.
It charged that Nakacinda mistakenly believes that he was above the MMD constitution simply because he was currently serving as nominated member of parliament by President Edgar Lungu.
“The fact is that the plaintiff is actually a Patriotic Front member who has held on to the MMD merely to destabilise the MMD for the benefit of the PF and this can be attested by the fact that the plaintiff is at virtually all Patriotic Front campaign fora speaking ill of the MMD. The plaintiff wrongly believes that his association with the Patriotic Front grants him immunity against the provisions of the MMD constitution,” according to MMD.
The party said Nakacinda was properly expelled from the party and procedure having been followed in accordance with Articles 19(n) and 52(2) of the MMD constitution and the latter cannot be allowed to claim that he did not have the opportunity to defend himself when he spurned the opportunity on several occasions by refusing to receive the charge letters and to attend the disciplinary hearings.
“The plaintiff is not entitled to any reliefs claimed in the plaintiff’s statement of claim as the said claims have no legal or factual basis,” reads the statement.
The MMD said Nakacinda had no power or rights to carry out any responsibilities or represent the MMD in any capacity.
“The plaintiff showed so much disrespect and disregard for judge Newa’s judgment and the Law Association of Zambia issued a statement asking Nakacinda and others to respect the judgment of the court. The plaintiff has now come back to the same courts that he ignores seeking legal relief because it now suits him,” the MMD said.
“It would seem the courts are only relevant to the plaintiff when he needs something from them. The plaintiff believes respecting court orders and judgments is optional.”
The MMD said Nakacinda had persisted in his indiscipline and misbehavior and still carries and conducts himself as if he was still national secretary of the party and had been causing chaos and division in the party.
The party added that Nakacinda had never accounted for the funds and property he misappropriated during his illegal tenure as MMD national secretary.
It stated that when it became clear that judge Newa would rule against them, Nakacinda facilitated the hiding or conversion of the listed MMD motor vehicles and other assets into personal property of various individuals including, himself and all was done illegally with no right of ownership to the property belonging to the party.
“The plaintiff must account for all funds and assets that he misappropriated during his illegal tenure and a full audit of his and his cohorts’ activities must be ordered by the court and all the plundered assets must be paid back or restored to the MMD by Nakacinda,” said the MMD.
It is now seeking a deceleration that Nakacinda’s expulsion was valid and that he had no legal standing from MMD to continue holding himself out as the national secretary of MMD or hold any meetings.
Meanwhile, the MMD has asked the Lusaka High Court to compel Nakacinda to surrender party vehicles he concealed when he served as national secretary and that he renders a full account of his dealings.
MMD wants an order that Nakacinda renders a full and true account of all his dealings during the time he illegally occupied office of national secretary and hand over all books of accounts, account statements and other details of accounts and MMD assets.
The party wants an order that Nakacinda returns all MMD vehicles and other assets and payment of the value of any assets that have been illegally hidden, sold or in any way dissipated.
It wants an audit of MMD accounts during the period Nakacinda was in control of the same and for restoration of all funds found to have been pillaged during his illegal tenure as national secretary.
MMD further wants an order permitting it to utilise the Zambia police to inspect the Road Transport and Safety Agency database to search and retrieve any party vehicles and conduct other relevant searches for assets found to be wrongly held by third parties who seek to claim MMD property and must provide valid legal documentation to prove how they obtained the property.