The Constitutional Court has misjoined President Edgar Lungu to the case in which UPND leader Hakainde Hichilema and his vice Geoffrey Bwalya Mwamba petitioned the Court seeking an order for the Speaker of the National Assembly to act as President, while the 2016 Presidential election petition was in Court.
In this matter, Hichilema and GBM, who cited President Lungu and the Attorney General as the respondents, wanted the Constitutional Court to issue an order prohibiting President Lungu from performing the Executive functions of Republican President.
They also wanted an order commanding the Speaker of the National Assembly to perform the Executive functions until President Lungu was declared in the presidential petition as validly-elected or until another person was elected Republican President.
The petition was filed on October 5, 2016.
However, Attorney General Likando Kalaluka applied to have President Lungu misjoined from the proceedings, arguing that he was the right person to be sued.
And delivering a ruling, Wednesday, Constitutional Court Judge Palan Mulonda, misjoined President Lungu from the proceedings and ordered that the Head of State would be represented by the Attorney General.
Judge Mulonda ruled that Article 98 of the Constitution clothed President Lungu with immunity from any legal and criminal proceedings in respect of any acts performed in his capacity as President.
He said there would be no prejudice suffered by the petitioners if President Lungu was misjoined as the reliefs sought in the petition did not affect his direct interest and, therefore, could be handled by the Attorney General.
“A consideration of the petition and the reliefs sought reveal that the petitioners are seeking a declaratory relief against the first respondent for breaching the Constitution when he performed the functions of President in his personal capacity. It is with this consideration in mind and the provisions of the law as set out in Article 104, that I find that the first respondent did perform those acts in his personal capacity and, therefore, immune from the continuation of legal proceedings against him as provided under Article 98 (1) of the Constitution,” ruled Judge Mulonda.
“I am of the view that there will be no prejudice occasioned to the petitioners by the misjoinder of the first respondent as the declarations sought in the main petition do not affect the direct interests of the first respondent and can only be ably handled by the Attorney General in any event. I, therefore, order that the first respondent be misjoined from the proceedings and be represented by the second respondent.”