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CONCOURT A CLEAR PRESENT DANGER…to the Constitution and democracy – Sishuwa

THE Constitutional Court has become a clear and present danger to the Constitution, the rule of law and democracy in Zambia, says academic and political analyst Sishuwa Sishuwa.

Commenting on last Friday’s ruling by the ConCourt that Edgar Lungu ‘is entitled to stand for election as president on 12th August 2021’ because his first term in office was an ‘inherited term’, Dr Sishuwa said the court construed the Constitution to benefit an individual.

“This was a landmark case which offered us a chance to develop our constitutional jurisprudence. Unfortunately, the outcome constitutes a serious regression in our capacity to strengthen our democratic credentials, vindicates the continued decline of public confidence in the Judiciary, and cements the Constitutional Court’s position as a court that lacks demonstrable commitment to protecting the Constitution and the rule of law,” Dr Sishuwa said. “In fact, I would say that the Constitutional Court has become a clear and present danger to the Constitution, the rule of law and democracy in Zambia. Despite being a nascent court, the ConCourt has done more damage to Zambia’s democracy than the conventional courts that safeguarded constitutional order before its founding. And if a sitting president is able to both rig an election and control the Constitutional Court, it is hard to see how he or she can ever be voted out of office. This is dangerous.”

He said a close reading of the abridged judgment suggests that “the judges have construed the Constitution in favour of an individual”.

“Subject to me reading the final judgment of the court, this is my position. I am disappointed by the judgment of the Constitutional Court in the matter. I must state that I expected them to give Lungu a third term,” Dr Sishuwa said. “In fact, I would have been shocked if this were not to be so. My views are based on how consistent this court has been in reaching decisions tending to be more protective of and deferring to the Executive interests, than those of the ordinary Zambian and the Constitution. In a sense, it is the Court itself that was on trial.”

He said his disappointment with the judgment stems from two reasons.

“The first is the failure by the ConCourt to proffer a reasoned judgment which would have addressed the petitioners’ full arguments on the merits. When the court ruled that the petition be heard on its merits, we anticipated that the court would engage with the substantive arguments that were raised. Not only did the petitioners demonstrate how the issues in the current petition substantially differed from those in the Dan Pule case, but also and most importantly, why the decision in Pule should not have been used to defeat this recent petition,” Dr Sishuwa said. “The petitioners also raised arguments pointing out how the Pule case is an unfair judgment, which has created a bad precedent, not least because the material fact on which the judgment is premised was false and a creation of the supposed neutral arbiter and not the litigants themselves. There is nothing in the abridged judgment which demonstrates that the ConCourt even attempted to address these key arguments.”

He said, “I eagerly await the full judgment on 30 June to understand how the eight judges of the ConCourt in effect retrospectively applied Articles 106(3) and 106(6) of the Constitution of Zambia (Amendment) Act, No. 2 of 2016 to benefit Lungu, who did not assume the presidency in 2015 for his first term of office because he was vice-president or as a result of an election held because the then vice-president could not, for any reason, assume the office of President”.

Dr Sishuwa said the ConCourt has given a bogus interpretation of the Republican Constitution by giving Lungu a third term, contrary to supreme law and reason.

“The second reason is that the ConCourt even went as far as stating that the first term was inherited, a proposition that is not supported by the Constitution or the transitional provisions in the Constitution of Zambia Act 2016. The arguments about ‘inheritance’ and ‘entitlement’ which the court has embraced were never advanced by Lungu’s lawyers. The court tendered them,” noted Dr Sishuwa. “Basically, the court argued the case for Lungu because his lawyers did not address the court on the merits of the petitioner’s arguments. So where did the judges find the grounds for finding in his favour? Further, the judgment uses astonishing language to say the least, stating that Lungu is entitled to contest. What the ConCourt has done is to unwittingly amend the Constitution and in effect tell politicians, the Executive, Legislature and all ordinary Zambians that it is ‘OK’ to disobey the Constitution. This is treasonable. The ConCourt is not above the Constitution. Its mandate begins and ends with giving effect to the provisions of the Constitution.”

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