LIVINGSTONE Magistrate Benjamin Mwelwa has argued that the petition where he is seeking an order that the Registrar of Societies de-registers all political parties, which have not practiced regular, free and fair intra-party elections, is rightly before the Constitutional Court.
He adds that his petition is premised on the contravention of the Constitution and meets all the requirements for a matter that should be brought before the Constitutional Court.
This is a matter in which Mwelwa, an Advocate of the High Court, has petitioned the ConCourt seeking an order and declaration that any political party, which was registered and in existence as of January 5, 2016, and which has not promoted and practiced democracy through regular, free and fair elections, within its political party, has breached Article 60 (2) (d) of the Constitution (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.
He wants an order that the Registrar of Societies de-registers all political parties for having ceased to exist as political parties in Zambia on January 4, 2017, and since violated Article 60 (2) (d) of the Constitution of Zambia (Amendment) Act No.2 of 2016 and section 18 (1) and (2) Act No.1 of 2016.
Mwelwa cited Attorney General Likando Kalaluka and the Electoral Commission of Zambia (ECZ) as the respondents in the matter.
The Court recently joined Stephen Katuka in his capacity as UPND secretary general and Davies Mwila in his capacity as PF secretary general as interested parties to the petition after they applied for joinder.
After being joined, the UPND, through its secretary general as an interested party, asked the Court to dismiss the petition for want of jurisdiction as it did not disclose any violation of the Constitution.
Katuka stated that Mwelwa’s petition did not meet the requirements for a matter that should be brought before the Constitutional Court.
He argued that the petition was founded on an Act of Parliament, adding that the petition was supposed to be taken before the High Court.
Magistrate Mwelwa has, however, opposed Katuka’s summons to have his petition dismissed.
According to an affidavit in opposition to the interested parties’ summons to strike out the petition and to dismiss the action filed in the Constitutional Court, Magistrate Mwelwa argued that his petition meets all the requirements contrary Katuka’s assertion that it did not meet the requirements for the actions to be brought before the Constitutional Court.
“My petition is premised on the contravention of the Constitution. It is properly and rightly before this Honourable Court. Both my petition and affidavit verifying facts filed into court on May 11, 2020, disclose the alleged violation of the Constitution by all the political parties in Zambia in great details,” read the affidavit.
But in an affidavit in reply, Katuka insisted that the petition was irregular and defective as it was improperly before the Constitutional Court.
He reiterated his position that the assertions in the petition, which relate to the 12-months’ time frame do not meet the requirements for actions to be brought before the Constitutional Court.
“The main issue in contention contained in the petition is the absence of intra-party elections in all political parties within 12 months of the passing of the Constitution of Zambia (Amendment) Act No.1 of 2016 and the Constitution of Zambia (Amendment) Act No. 2 of 2016. However, this court will note that the provision at the core of the petitioner’s argument is as a matter of fact section 18 of the Constitution of Zambia (Amendment) Act No.1 of 2016, which is an Act of Parliament, whose interpretation does not fall within the jurisdiction of this court,” argued Katuka.
“Any assertion that stems from or refers to this Act of Parliament does not fall within the jurisdiction of this Honourable Court and, therefore, must be struck off for want of jurisdiction.”