The Constitutional Court has thrown out a matter in which UPND leader Hakainde Hichilema was challenging President Edgar Lungu’s decision not to hand over power to the Speaker of the National Assembly in 2016 when the Presidential election petition was pending before court.
In this matter, Hichilema and his then vice, Geofrey Bwalya Mwamba, cited the Attorney General as respondent and petitioned the Constitutional Court, seeking a declaration the President Lungu breached the provisions of Article 104 (3) of the Constitution for performing and continuing to perform the functions of the office of President from August 19 to September 13, 2016.
The petitioners also wanted a declaration that the Speaker of the National Assembly breached the provisions of Article 104(3) of the Constitution by failing to perform the functions of the office of President, during the period August 19, to September 13, 2016.
The two alleged that President Lungu at the time of the 2016 Presidential and General elections, should not have continued to perform the functions of President during the period that an election petition challenging his election was pending before court, as doing so was in breach of Article 104(3) of the Constitution.
But the court has now ruled that both President Lungu and the Speaker cannot be held to have been in contravention of any Constitutional provisions when the Head of State continued to perform the executive functions of the office of the Republican President during the impunged period.
The brief history of the matter is that on August 11, 2016, Zambia held general elections that resulted in President Lungu being declared the President-Elect on August 15, 2016 by the ECZ chairperson.
Hichilema and and Mwamba, proceeded to move the Constitutional Court by filing a Presidential election petition on August 19, 2016 where they alleged that President Lungu was not validly elected and that certain provisions of the Constitution and other laws had not been complied with.
The said Presidential election petition was dismissed on September 5, 2016 and the incumbent was sworn into office on September 13, 2016.
Between August 19 and September 5, 2016, President Lungu and not the Speaker performed the functions of the office of the Republic of Zambia.
After the dismissal of the petition, Hichilema and Mwamba filed an amended petition in which they wanted the court to order President Lungu to hand over power to the Speaker.
But in a judgment delivered by Constitutional Court Judge professor Margaret Munalula, Thursday, the court dismissed the petition and ordered that each party bear their own costs.
“We see no provision for the Speaker to perform the functions of the Republican Presidency after the initial ballot in the event that there is a presidential election petition under Article 101(4) of the Constitution. We thus agree with the respondent (Attorney General) that the two provisions, Article 101 (4) and 103 (1), in so far as they relate to presidential election petitions, cannot be used interchangeably according to one’s preference for a particular outcome as each provision can only be invoked after the occurrence of certain events which we have already stated,” she said.
“The petition stands dismissed. Both parties sought an order for costs. We have considered the issue. Although costs generally follow the event, there is no award to the respondent in this case because of the importance of the constitutional question raised. Each party shall bear their own costs.”
Other judges that heard the matter include; justices Anne Sitali, Mungeni Mulenga, Palan Mulonda and Martin Musaluke.