Given that there are relatively few cases before it, what explains the continued delay by the Constitutional Court (ConCourt) in determining the election appeal cases involving Margaret Mwanakatwe, the Lusaka Central Patriotic Front (PF) Member of Parliament and Minister of Finance, and Nkandu Luo, the PF MP for Munali constituency and Minister of Higher Education? Is it simply the fact that the ConCourt was not functioning for quite some time because almost all judges were subject of an investigation by the Judicial Complaints Commission, which ultimately exonerated them? Or perhaps there is more to the case than meets the eye? To recap: in November 2016, the Lusaka High Court nullified the duo’s elections for electoral malpractices after the defeated opposition United Party for National Development (UPND) candidates petitioned the results of the 11 August 2016 vote. The two high-profile ministers appealed to the ConCourt, seeking to overturn the High Court rulings. Nearly fifteen months later, the two appeal cases remain undetermined, yet several similar less high-profile cases that were filed around the same time have already been disposed of. Notwithstanding rumours that a ruling, at least in the Munali case, will be made this very week, it is worth asking what explains this undue delay. Before attempting any response to this question, it is worth quoting in full the relevant clause of the Constitution, which deals with petitions relating to the election of MPs:
73. (1) A person may [within seven days of the declaration of the election results?] file an election petition with the High Court to challenge the election of a Member of Parliament.
(2) An election petition shall be heard [and determined?] within ninety days of the filing of the petition.
(3) A person may appeal against the decision of the High Court to the Constitutional Court.
(4) A Member of Parliament whose election is petitioned shall hold the seat in the National Assembly pending the determination of the election petition.
The first possible explanation then is that the delay in resolving parliamentary election appeal cases is a consequence of the weaknesses of the existing law. While the Constitution requires the High Court to ‘hear’ and presumably determine a properly filed petition against an elected MP within 90 days, it does not provide for a specific timeframe within which a subsequent appeal to the ConCourt must be decided. This is an institutional loophole that some judges may take advantage of to delay deciding appeal cases, one that should be rectified urgently because it potentially undermines the efficient administration of justice and enables judges that are susceptible to political and financial influence to hide behind its ambiguity.
Since the Constitution stipulates that the High Court must ‘hear’ and possibly dispose of a candidate’s petition within 90 days, any further appeal to the ConCourt should be dispatched with the utmost urgency to ensure that the case is not unduly delayed much beyond the three months set in the Constitution and to observe the judicial principle that justice delayed is justice denied. This is especially so in the current context, where the Constitution appears to allow an MP whose election has been nullified but who consequently appeals to the ConCourt to remain in the National Assembly until after the determination of his or her case. If the ConCourt, after so much undue delay, ultimately finds that one was not duly elected to Parliament, it would be complicit in having perpetuated a form of electoral injustice where the wronged voters of a given constituency were all along denied their chosen representative and instead had a dishonourable crook foisted upon them. Thus, in failing to expedite the appeal cases, the Constitutional Court is damaging its reputation as an institution that is able to dispense justice in a timely manner. This erosion of its reputation has grave consequences for the rule of law in Zambia. For instance, the court’s failure to intervene promptly in election appeal cases means that there is effectively no incentive for political parties and individuals to abide by the rules of the game in future elections. Candidates who win illegitimately can be confident that years will go by with them sitting in Parliament and enjoying all the privileges that come with being an MP while their appeal cases remain undetermined in the ConCourt.
Another constitutional weakness that needs to be corrected urgently relates to the requirement that ‘[a] person may appeal against the decision of the High Court to the Constitutional Court’. In my view, it seems to be a fundamental error in law that political parties or losing candidates unsatisfied with the rulings of the High Court should be appealing, mandatorily, to the ConCourt rather than the Court of Appeal and possibly the Supreme Court. The question of whether or not someone has cheated in an election is not necessarily a constitutional matter; it can simply be a legal issue, and the ConCourt, a specialised body, is supposed to only adjudicate on cases where the interpretation of the Constitution is in dispute, which is hardly the case here. In this case, the High Court found that Mwanakatwe and Luo were guilty of winning their elections by means of intimidation, use of racist remarks and public resources for campaigning, and violence. None of these are constitutional matters that warrant the attention of the ConCourt.
Here, we see yet another problem created by the 2016 hurriedly-amended Constitution: lack of a clearly defined hierarchical order of the country’s superior court system, which has effectively rendered the Supreme Court redundant. One possible way of addressing this defect, which reveals a court system in crisis, is to strictly delineate the mandate of the ConCourt, which, according to Article 121, is equivalent in rank to the Supreme Court. As presently designed, the Concourt is a mess and it is hard to argue that it brings anything new on board. A more effective solution would be to abolish the ConCourt altogether, as recently proposed by civil society groups, and focus on strengthening the exiting courts, including by way of requiring all judges and magistrates to retire and re-apply for their positions through an independent vetting board. This approach would lessen the problems of corruption and incompetence that are central features of our justice system.
The Judiciary may have a few individuals who still pretend that they are serving a higher cause than that of the lumpen elites in power and foreign money in Zambia. Taken as a whole, however, the judiciary is rotten to the core. Genuinely good individuals in the Zambian judiciary, especially the higher echelons, would have resigned a long time ago when Frederick Chiluba, Levy Mwanawasa, Michael Sata, Rupiah Banda and now Edgar Lungu all made it clear to them that they exist mainly to carry out the wishes of the executive. It matters less to some on the bench that they belong to a noble profession that should dispense only truth and justice – a considerable number of them are happy to serve out lies and injustice to advance their careers and the interests of the ruling authorities. In our extreme material and cultural impoverishment, the truth is foreign and professions are a means to find a job, for survival, not to advance the so-called ‘noble ideals’ of the profession. Law has in fact assumed the mantle of leader, in this regard, in Zambia; it has become the scum of all professions, in my opinion. To become a lawyer has become the immediate dream of any young man or woman seeking to escape poverty. This is an acidic ingredient of a judiciary that is highly susceptible to political and financial interests.
The more plausible, and ominous, explanation behind the delays in disposing of the appeal cases is that this is a conscious political strategy that has been adopted by the ruling authorities. This strategy is one of pressuring the courts to make constant adjournments to the cases to avoid holding any parliamentary by-election in urban constituencies of Lusaka for fear of losing to the UPND. Any loss to the opposition would be embarrassing and reveal waning support for the ruling party. More importantly, the evidence on which Luo and Mwanakatwe’s seats were nullified is similar to the irregularities that Hakainde Hichilema and Geoffrey Bwalya Mwamba cited in their petition against the election of Lungu. If the ConCourt upholds the decisions of the High Court, it would open a Pandora’s box, as the UPND is likely to use the rulings as proof of the serious irregularities that marred the presidential election. The main opposition is also likely to insist that by extension their petition, which was dismissed without being heard, must be heard.
It is worth remembering that Hichilema and Mwamba have appealed to the High Court claiming that their right to be heard as stipulated in Article 18 of the Constitution was violated by the ConCourt when it disposed of their petition against Lungu’s election without hearing it, as required by Article 101 (5). This much-delayed case remains before the High Court and the judge who is hearing the matter, Mwila Chitabo, has stayed proceedings pending determination of an appeal to the Supreme Court to make him recuse himself from it for alleged bias. If the ConCourt upholds the High Court decisions to nullify the seats, it would effectively put pressure on the Supreme and High courts to make a ruling on the right to be heard case, the outcome of which might potentially plunge the country into a constitutional crisis.
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