High Court not competent to hear matter touching on ConCourt decisions – State

THE State says the High Court is not competent to hear and determine any matter touching on a decision made by the Constitutional Court or any other court superior to it.

It says the decision of the ConCourt will have to be reviewed in order to grant the relief being sought by Lusaka resident Joseph Busenga for an order that the Constitutional Court and other agents of the state infringed on his right to freedom of conscience when they forced him to litigate former president Edgar Lungu’s eligibility case against his own will.

In this matter, Busenga has petitioned the state in the Lusaka High Court over the ConCourt’s refusal to allow him and former UPND Katuba member parliament Bampi Kapalasa to discontinue their petition in which they sought an interpretation on whether Lungu was eligible to stand in the August 12, 2021 general elections after being sworn into the office of President twice.

Busenga, who has cited the Attorney General as the respondent stated in his petition that the Court’s decision to coerce him to litigate a matter against his will infringed on his freedom of conscience as guaranteed in Article 29 of the Constitution as read with Article 12 of the constitution in relation to the protection of fundamental freedoms.

He said the court violated his rights in line with Articles 11, 18 and 19 of the Constitution.

But in an affidavit in reply to affidavit in opposition to the respondent’s notice of motion to raise a preliminary issue, principal state advocate Francis Mwale said although the High Court had original jurisdiction to hear matters relating to the Bill of rights, it does not have the power to question or review the decisions of courts superior to it.

Mwale said the reliefs being sought by Busenga had the effect of appealing against the decision of the Constitutional Court or reviewing its decision which was contrary to the provisions of the constitution.

“We refer to article 128(4) of the Constitution which states that a decision of the Constitutional Court is not appealable to the Supreme Court,” he submitted. “We submit that the Constitutional Court is not subject to challenge by any other court regarding its decisions on both procedural and substantive law. It follows that this court cannot competently hear and determine any matter hinging on a decision made by the ConCourt or any other court superior to it for that matter.”

Mwale cautioned that granting Busenga the reliefs he seeks would amount to the High Court reviewing the decision of the ConCourt.

“We reiterate our position that this court cannot competently be persuaded by the petitioner to integrate the exercise of the Constitutional Court’s jurisdiction of not allowing discontinuance of matters cloaking it in the guise of enforcing his fundamental rights,” said Mwale.

“The respondent humbly prays that the application be granted and the matter be dismissed with costs to the respondent.”

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