FORMER Law Association of Zambia (LAZ) president Eddie Mwitwa says outgoing President Edgar Lungu’s decision to pardon Chishimba Kambwili in the forgery case can be challenged in the courts of law if his appeal was still pending.
In an interview, Mwitwa said a decision done outside the law should be null and void.
“Technically, in a perfect world, if anybody who has power to do something does it outside the law, that decision is supposed to be null and void. You cannot do something without the requisite authority or power. But in the event that no one takes issue in that particular decision, it is possible that the decision can be executed or put into effect, it would have to take a challenge to that decision by an interested party. In civil matters, there have been instances where people have been retired in national interest by the President or somebody acting in the name of the President, then that decision is challenged in court by the aggrieved party,” Mwitwa said.
“The courts have not been hesitant to overturn matters where retirement in national interest has not been justified. In a criminal matter, the interested parties are usually the public. So if I were to go to court and say ‘this person that has been pardoned is contrary to the law,’ I think the court should not chase me away because I am part of the people. Technically, a decision that is done without requisite authority or law should be null and void.”
Mwitwa said certain provisions in the Constitution needed to be revisited.
“I do agree that there is need to revisit certain provisions of the constitution. I think we would have to go back to the Genesis of Bill 10 and how it collapsed, what were the issues that people were against? One of the things we were uncomfortable with is how the government started by saying they wanted to refine the Constitution, but what we saw was an attempt to overhaul the Constitution. In terms of time frame, I think it depends on how extensive the amendments should be. If we are trying to go the Bill 10 way, maybe doing it too quickly may not be the best approach. But certainly, a rethink is welcome on constitution reforms,” he said.
Meanwhile, Mwitwa agreed with constitutional lawyer John Sangwa that there should be an independent body to appoint judges.
“Mr Sangwa talked about the need to take away the power of the President to appoint judges, I totally agree. We need to find a way of ensuring that judges are appointed by an independent body so that they should be seen or perceived to be inclined to rule in favor of the President or the government of the day,” said Mwitwa.