Speaking at a media briefing, LAZ President Linda Kasonde said the attacks appears to suggest that any judgment against the ruling party is not in the interest of the nation.
Ms Kasonde said the comments were extremely unfortunate as many of the election petition cases have gone on appeal to higher courts.She explained that the comments can be seen as an attempt to influence the decision of the appeal courts the said matters.
Below is the full statement issued by LAZ on November 30,2016
The Law Association of Zambia (LAZ) strongly condemns the recent attacks on the Judiciary by State House Press aide Mr. Amos Chanda on ZNBC’s Sunday Interview following recent court judgements nullifying the parliamentary seats of some Members of Parliament from the ruling party.
The statements by Mr. Chanda appeared to suggest that any judgement against a Member of Parliament from the ruling party was not in the interests of justice. The statements went further to suggest that there would be repercussions against any Judge that rules against a ruling party Member of Parliament.
These comments are extremely unfortunate in view of the fact that many of the election petition cases have gone on appeal to higher courts and are therefore sub judice. The comments appear to have been made in an attempt to influence the decisions of the appeal courts on these matters. The threatening comments by Mr. Chanda such as that the Judiciary “must not be like politicians” and “must not push the Executive to push judicial reforms [in] the Kenya style” are unacceptable and indeed, in our view, contemptuous.
The purpose of the Judiciary in any functioning democracy is to interpret the law and to limit the powers of other branches of government including the Executive and the Legislature. More worrying is the fact that Mr. Chanda claims that he was speaking on behalf of the Republican President in his capacity as the head of the ruling party.
This creates two concerns. The first concern is that Mr. Chanda’s views are the views of the Head of State, who is the head of the Executive arm of government and the appointing authority of all judicial officers. In a properly functioning democracy, the doctrine of separation of powers demands that the Executive and the Legislature should not interfere with the work of the Judiciary.
Secondly, Mr. Chanda, who as a press aide to the office of the Republican President is meant to be a non-partisan civil servant, appears to have overstepped his mandate into the realm of partisan politics. Section 173 of the Constitution of Zambia (Amendment) Act No. 2 of 2016 states that one of the guiding principles of public servants is to be “effective, impartial, fair and equitable” whilst conducting their duties.
The statements attributable to Mr. Chanda also lend credence to views in some sections of society that the Judiciary is being manipulated by the ruling party and that it is therefore not independent and impartial.
LAZ is of the view that the integrity of the institution of the judiciary must be respected regardless of the outcome of any court case. The Judiciary should be able to fulfil its mandate without fear or favour. As a matter of fact, Section 122 of the Constitution of Zambia (Amendment) Act No. 2 of 2016 states that, “the Judiciary shall be subject only to this Constitution and the law and not be subject to the control or direction of a person or an authority”.
Therefore, LAZ strongly discourages any unsubstantiated claims and attacks being made against the judiciary by either the ruling party or opposition parties, including those attributed to the United Party for National Development (UPND) Secretary-General Stephen Katuta. As this unfortunate incident clearly shows, politics is about perception and in this case justice must be done and be seen to be done.
Regarding the position of Ministers following the nullification of their parliamentary seats, section 73(4) of the Constitution of Zambia (Amendment) Act No. 2 of 2016 states as follows:
“A member of Parliament whose election is petitioned shall hold the seat in the National Assembly pending the determination of the election petition”.
LAZ is of the view that, where the result of an election petition is nullified the Member of Parliament affected should lose their seat unless they obtain a stay of execution pending an appeal to the Constitutional Court.
If the Member of Parliament whose seat has been nullified does not appeal the judgement of the High Court or if the Constitutional Court upholds the nullification on appeal, that Member of Parliament is not eligible to stand for re-election in the subsequent by-election. As decided in the LAZ vs Ngosa Simbyakula & Others (The Ministers) case, a ministerial position is tied to maintaining a seat in Parliament.
Therefore, unless and until the Ministers who have had their seats nullified obtain a stay of execution pending appeal they lose their seats upon nullification and should therefore vacate the office of Member of Parliament and the office of Minister.