The Constitutional Court was inconsistent in its handling of the presidential petition, says the Judicial Complaints Commission.

But the JCC says one act of inconsistency cannot amount to incompetence.

According to the full JCC ruling obtained by News Diggers! and signed by Justice Christopher Mushabati and Justice Geoffrey Simukoko, the ConCourt judges contradicted one another in their decisions.

The JCC ruled that the ConCourt never sat on weekends but counted Saturdays and Sundays when counting 14 days, thereby depriving the petitioners four days within which to be heard.

“In considering this petition the court was duty bound to look at all the provisions of these articles. Sub-Article 101(5) of the Constitution was not outside the Articles under which the petition was brought, that is, it was not a stand alone article from which the presidential election petition was based. So why should the question of filing a formal application to have sub-article 101(5) interpreted arise? We feel the court should have just invited the parties to address it on this issue and so it is our view that there was no need. In fact, the single judge on two occasions or so stated that the court would pronounce itself on the matter,” the JCC observed.

“The main issue that attracted a number of complaints is on whether the weekends were to be included or excluded… the court never sat on any of the weekends that fell within that period. These were 20th, 21st, 27th of August, 2016 thus the 14 days period was reduced by four days… the court must have settled for the first scenario where all excluded days were counted. The court did not however, sit on weekends – Saturdays and Sundays thus denying the parties four days from the time stipulated for the petition, as already observed above.”

JCC also stated that the ConCourt should have given a proper guideline on the 14 days from the very beginning to avoid abruptly ending proceedings.

“We now come to the issue of the court’s failure to properly guide the parties on the time frame. The split decisions, made by the court, were rendered without hearing the parties. Admittedly, the majority ruling did state that the court had not considered the concerns raised by the Attorney-General regarding the time frame under Article 101(5) of the Constitution. One of the rules of natural justice demand that both sides must be heard before a decision is made. The parties in this case ought to have been invited to be heard on the “stand” the court had taken… Consistency in decision making is very cardinal especially by superior courts whose decisions will need to be followed by subordinate or lower courts,” the JCC stated.

“The court ought to have given clear guidelines on the time frame. It did not do so despite the interpretation of the Article 101(5) of the Constitution. We have already said elsewhere that it was not necessary for a formal application to have that Article interpreted because the 14 day time line was fundamental to the hearing of the presidential petition. Further, we note that from the way the computation of time was done by the court, the parties did not have full use of the 14 days. The court did not sit during weekends but those days were counted within the 14 days. Court proceedings being court driven the court should have given clear directions of what ought to have been done, especially that the court on more than two occasions stated that ‘it had a job to do’.”

The JCC observed that by the time ConCourt president Hildah Chibomba addressed the issue of 14 days, it was like shutting a stable door when the horse had already bolted.

“All in all on the complaint that the court had failed to interpret Article 101(5) of the Constitution, we must say that from the various pronouncements of the court on the subject the court must have done so though it did not come out clearly, in that it failed to pronounce itself formally as to when the time frame began running and when it was to end. The Judge President in her response to the complaint on the interpretation of Article 101(5) said that this was addressed in the majority ruling. The majority ruling may have addressed that issue but it is our view that this was done late in the day. It was like shutting the stable door after the horse had bolted. The court should have addressed the issue at the very beginning,” the JCC stated.

But the JCC stated that one act of inconsistency did not count as incompetence.

“It shall be noted that from the rulings quoted above, the court kept on changing its own decisions. This change or reversal of decisions amounted to inconsistencies on the part of the court. It was these inconsistencies which prompted the complainant to say the Constitutional Court and the Judiciary were brought into disrepute, ridicule or contempt and that this amounted to incompetence and gross misconduct. We however wish to state that one incidence of inconsistency cannot amount to incompetence let alone an act of gross misconduct by them,” stated JCC.

Read the full JCC ruling below: You can also download the judgement as a PDF document here.