UPND and NDC have applied for leave to amend the originating summons in a matter where they have sued the Electoral Commission of Zambia (ECZ) and PF secretary general Davies Mwila, over the Chilubi by-election.
Mulambo Haimbe, the lawyer representing UPND secretary general Steven Katuka, has submitted to the Lusaka High Court that the proposed amendments have been necessitated by the change in the circumstances under which the original matter was brought, as the Chilubi by-election had already taken place.
In this matter, Katuka and Bridget Atanga, in her capacity as NDC secretary general, citing ECZ and Mwila as first and second respondents, were seeking among other reliefs, an order of interim injunction to restrain the commission from permitting the holding of the Chilubi by-election last Thursday.
The two also wanted an order of mandatory injunction directing ECZ to postpone the Chilubi by-election to February 20, 2020 and to disqualify PF from further participation in the by-election.
But according to an amended originating summons, Katuka and Atanga are now seeking a declaration that ECZ is compelled to take such steps as the court may direct to secure a free and fair election.
They also want the court to compel ECZ to exercise the powers conferred upon it by statue which will enable it to conduct, manage, supervise and control elections in a fair and impartial manner.
Katuka and Atanga’s questions put forward for determination are; whether or not a party aggrieved by the conduct of an election by ECZ can compel the commission to execute its functions pursuant to the provisions of the law that place a duty on ECZ to conduct free and fair elections and, in the event that the ECZ blatantly violates or breaches its statutory duty prior to the poll being undertaken, whether or not an aggrieved party can seek relief from the court so as to secure a free and fair election.
They have further asked whether or not ECZ can be compelled to postpone an election in circumstances where the Court finds that there has been a clear violation of the relevant provisions of the law governing the conduct of elections and takes the view that a free and fair election cannot be held in those circumstances.
And further, among other questions, to disqualify a political party from participating in an election in the face where the court takes the view that there have been serious breaches in the Electoral Code of Conduct attributable to its members, supporters and leaders.
In an affidavit in support of summons for leave to amend originating summons, Haimbe stated that no prejudice would be occasioned to the other parties on account of the proposed amendment as none of them has responded to the substantive application.
“The first applicant (Katuka) is desirous of amending the originating summons herein. The proposed amendments have been necessitated by the change in the circumstances under which the original action was brought having regard to the fact that the poll in Chilubi has proceeded as scheduled,” Haimbe stated.
On Wednesday when the matter came up for inter-parte hearing on the application for an order of injunction in Chambers, Attorney General Likando Kalaluka applied to be joined to the proceedings as a respondent, which the court granted.
Kalaluka and Mwila then applied to have the matter adjourned to enable them respond to Katuka and Atanga’s allegations.
But Katuka and Atanga, through their lawyers, Haimbe from Malambo and Company and Christopher Mundia of Messers CL Mundia and Company, objected to the application, arguing that unless an injunction was granted to them, the matter would stand dismissed if the adjournment was granted as the elections were slated for Thursday.
But in her ruling, Justice Gertrude Chawatama adjourned the case to Friday.
The matter however comes up, Monday (today), for a Status conference.