Judiciary sets rules for presidential election petition filing, hearing

THE Judiciary has published a Statutory Instrument on amended Constitutional Court rules regarding presidential election petitions and providing for hearing interlocutory applications prior to hearing the petition.

The Statutory Instrument number 29 of 2021 is dated April 12, 2021 and was issued under Irene C. Mambilima, the late Chief Justice.

According to the SI, the new rules shall be read as one with the Constitutional Court Rules, 2016 (principal rules), which have been amended.

The SI states that a petition challenging the election of the President-elect in accordance with Article101 or 103 of the Constitution shall be filed before the Court and shall state the – name and address of the petitioner; facts relied on; provisions of the Constitution or any other law relating to elections allegedly not complied with; and reliefs sought by the petitioner.

According to the SI, a petition shall be filed together with an affidavit verifying facts; skeleton arguments; and a list of authorities and copies of the authorities cited.

“A petition shall be served on the respondent within twenty-four hours of filing the petition. 2. The Court may, where the petitioner demonstrates to the court that prompt personal service cannot be effected on the respondent, make such order for substituted service or other service as the Court may consider just,” reads the SI. “3. A person shall prove service of a petition by filing an affidavit of service.”

According to the SI, the respondent shall, within four days of service of the petition, respond to the petition by filing an answer together with – an opposing affidavit; skeleton arguments; and a list of authorities and copies of the authorities cited.

It requires the respondent to serve the answer and accompanying documents on the petitioner within twenty-four hours of filing the answer and a person shall have to prove service of an answer by filing an affidavit of service.

“The petitioner may reply to the respondent’s answer with twenty four hours of being served with the answer. Where the petitioner replies to the respondent’s answer, the reply shall be filed together with skeleton arguments,” reads the SI.

“(1) The Court shall, immediately after the filing of an answer, summon the parties to a scheduling conference at which the court shall issue directions for the expeditious hearing of the petition which shall be strictly adhered to. (2) The Court may, at the scheduling conference, give directions or orders relating to any interlocutory matters.”

According to the SI, a party could make interlocutory application within the time frame given by the court at the scheduling conference prior to commencement of the hearing of the petition.

It states that the Court shall hear an interlocutory application prior to hearing the petition and on the basis of written submissions not exceeding 10 pages.

It also states that the Registrar shall, where the Electoral Commission of Zambia is not a party to the proceedings, notify the Electoral Commission of Zambia of the petition within three days of a petition being filed.

“The Court shall determine the petition on affidavit evidence, and on oral and written submissions,” the SI reads. “The Court shall, at the close of a hearing, give its decision and may reserve its reasons for its decision to a later date.”

According to the SI, where the court reserves its reasons for its decision, it shall give a summary of the decision and the period within which it shall give the reasons.

The ConCourt has been given a period not exceeding 60 days from the last day of hearing the petition to give reasons for its decision.

“The Registry of the Court shall be open at 08:30 hours and close at 15:00 hours, for the purposes of election petitions, from the day of filing an election petition to the last day of the hearing of the petition,” reads the SI.

However, Article 101 (5) states that the Constitutional Court shall hear an election petition filed in accordance with clause (4) within fourteen days of the filing of the petition.

The election petition filed by UPND leader Hakainde Hichilema and his running mate Geoffrey Bwalya Mwamba in 2016 against the declaration of Edgar Lungu as president-elect was dismissed on technicality that it had breached the 14 days timeframe within which it was to be heard and determined.

The petition was not heard.

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