Analysis: No Local or International Court will declare HH President

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HH addressing a press briefing at his house

HH addressing a press briefing at his house

As things stand, no local or international court is going to declare Hakainde Hichilema and his running mate Geoffrey Mwamba as the real winners of the August 11, 2016 elections. This is not in anyway to suggest that Edgar Lungu and Inonge Wina won the elections. On the contrary, a pile of evidence suggests that it was Hichilema, not Lungu who won the elections. But, and this is the most unfortunate part, the Electoral Commission of Zambia declared that it was Lungu who won. The question now is whether this declaration of Lungu as president can, given the available evidence, be reversed. We think it is highly unlikely. The local system, including the courts do not favour such an eventuality. At international level, there is simply no mechanism or system to achieve such an objective. The UPND has communicated its intentions to pursue the matter in international courts. But as we shall show later, this is highly impractical.

Let us start with the local efforts by the UPND to claim their victory. As is already known, just after elections, the UPND challenged the declaration of Lungu as winner in the Constitutional Court. The Constitutional Court, working together with the Patriotic Front made it impossible for the UPND to adduce evidence. In fact, the court did not even look at any evidence the UPND had/has. Instead, after 14 days, the court said that the time within which the presidential petition should be heard had lapsed so whoever was declared winner by the ECZ must be sworn in. That is how the courts Legalized and endorsed illegitimacy and vote rigging.

The UPND rushed to the high court, which correctly said it can not order a superior court to take or refrain from taking any action. The Constitutional Court has the final say on matters relating to the election of the president of Zambia. The UPND dashed to Supreme Court which simply said it has no jurisdiction in such matters. One would have expected UPND lawyers to understand such a simple fact.

Surprisingly, the UPND went back the High Court, a court which is inferior to the Constitutional Court and which has already said that it can not direct the Constitutional Court because it is a superior Court. This is a simple thing to understand. Courts are hierarchical, meaning that they have levels of superiority. In the case of Zambia, the most superior courts are the Supreme Court and the specialized Constitutional Court. Note that these two courts are at the same level, the only difference is that the Supreme Court has powers to hear appeals from the High Court on any matter except the interpretation of the Constitution and the election of the president. The Constitutional Court only hears matters relating to interpretation of the constitution and the election of the president. It is not possible to appeal a matter from the Constitutional Court to the Supreme Court or vice versa. The High Court is number two in terms of powers followed by the Magistrate Court. The ‘local’ or is it ‘boma’ courts are at the bottom. It is therefore not possible to expect the Magistrate Court to give orders to the High Court or, as the UPND expects, for the High Court to give instructions to the Constitutional Court.

And in the latest episode; just this week, the High Court removed the main suspects, Edgar Lungu and Inonge Wina from the proceedings.

High Court judge Mwila Chitabo also removed the electoral commission of Zambia, Chief Justice, her Deputy and the Constitution Court. The judge said these will now be represented by the Attorney General Likando Kalaluka. Even a child or an imbecile can tell that this case is not going anywhere. It is waste of time and money. So if Lungu, Wina and the ECZ are not part of the proceedings, against whom will the ruling be, assuming HH and GBM won the case? Will it be against Kalaluka?

We know the answer to that. Since the UPND wants the court to determine whether the Chief justice and her Deputy violated the constitution by swearing in the President and the vice president, the High Court will say they did not. Anyone with a working brain can foresee this. But even in the unlikely event that judge Chitabo rules that HH and GBM’s rights were violated, it will still be ruling with no value. This is because the High Court will not and can not order the Constitutional Court to hear the presidential petition.

Sadly, UPND supporters are excited by the fact that the High Court said the matter must be heard. Which matter? The matter of whether HH and GBM’s rights were violated, and then what?

AT INTERNATIONAL LEVEL

The UPND has also announced that they will pursue the case of the presidential petition in international courts.

This is another waste of time and money, though we hear HH and GBM have a lot of money but we believe this money should be utilized to mobilise the party.

We sincerely believe that there is no international court that can declare HH as president of Zambia.

Here is why:

There are two main international courts and it is these same two that have been mentioned in UPND circles as the tribunals that will hear their petition. These are the International Criminal Court and the International Court of Justice otherwise known as the World Court. Perhaps we can add the African Court on Human and Peoples’ Rights.

Lets us start with the International Court of Justice. Established in June 1945, the International Court of Justice (ICJ) is the principal court of the United Nations (UN). It is based at the Hague in the Netherlands.

There is really much nothing to be said about this court visa vi the UPND petition, except that the matter will not be admitted. The International Court of Justice hears disputes among states. Only members of the of the UN (nations) can petition the International Court of Justice. Zambia can sue Mongolia, UK or Malawi or any other country. But Bowman Lusambo or Joseph Jordan can not sue Zambia or India at the International Court of Justice. In short, the UPND or Hichilema and Mwamba can not sue Zambia at that UN court. This court does not hear cases about local matters. It hears cases between countries.

THE INTERNATIONAL CRIMINAL COURT

Here it can’t work as well. The International Criminal Court, also based in the Netherlands does not hear disputes about who won elections in a particular country. The most important thing to note here is that this is a ‘criminal’ court. This means that people must be arrested. The presidential petition is a civil matter, strictly speaking.

Most important, the International Criminal Court only prosecutes matters related to genocide, crimes against humanity, crime of aggression and war crimes. Each of the four areas where the court has jurisdiction is defined and national electoral disputes is not in the jurisdiction of the International Criminal Court.

For example, the International Criminal Court says Genocide is characterized by specific intent to destroy in whole or in part a national, ethnic, racial or religious group by killing its members or by other means: causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; or forcibly transferring children of the group to another group.

Crimes against humanity are murder, rape, imprisonment, enforced disappearances, enslavement – particularly of women and children, sexual slavery, torture, apartheid and deportation. This is perhaps where the UPND can bring a case against the PF, but in form of crimes against humanity not as a presidential petition. Submitting a presidential petition at the ICC is demonstrating grave ignorance. No one will even look at it

Crime of aggression. It is the use of armed force by a State against the sovereignty, integrity or independence of another State,while war crimes are crimes such as the use of child soldiers; the killing or torture of persons such as civilians or prisoners of war; intentionally directing attacks against hospitals, historic monuments, or buildings dedicated to religion, education, art, science or charitable purposes.

So it can clearly be seen that the ICC does not take civil matters such as a presidential petition. What the UPND should do is gather evidence about their members who have been killed, raped or tortured by the PF then submit them to the ICC for possible prosecution since the local police can not do that. That is what triggers the ICC; when the local police and courts fail to prosecute a criminal who kills, rapes or tortures people because he is in charge of the police, the soldiers and finances.

THE AFRICA COURT ON HUMAN AND PEOPLE’S RIGHTS

This one is based in Tanzania where Lungu just returned from.

It was established in 1998 to complement and reinforce the functions of the African Commission on Human and Peoples’ Rights. It has jurisdiction over all cases and disputes submitted to it concerning the interpretation and application of the African Charter.

But the work of African Court on Human Rights is hampered by jurisdictional problems.

Its jurisdiction extends only to those States that have ratified the protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights. As of March 2016, only 30 states had accepted the Court’s jurisdiction.

It is also very difficulty for individual or political parties to take cases directly to the African court, because ‘only the African Commission, states parties, African inter-governmental organization and African national human rights institutions enjoy unconditional and direct standing before the African Court.’ According to the admissibility criteria of the Court, cases brought directly before the Court by individuals and NGOs are admissible only when the state against which the complaint is brought has made a declaration under article 5(3) of the Court’s Protocol accepting the competence of the court to receive such complaints. As at February 2016, only seven (7) countries had made the declaration recognizing the competence of the Court to receive cases from NGOs and individuals. Zambia is not one of them. So even here, there will be problems.

Our advice to the UPND will be to forget about the court actions. It is wasting time and resources they need so much to mobilise the party. Everyone has by now heard that HH and GBM won the elections but the courts refused to hear the evidence. This is good politically especially with the recent nullifications of parliamentary seats held by the PF. But by pushing the courts in Zambia to say something, they will eventually say, with impunity, that you lost the elections. In Zambia it is not about the evidence, it is about jobs, money and ethnicity.

The UPND should just continue campaigning and telling the people that they won the elections but it was stolen from them and the courts refused to hear their evidence.

From the local courts and international courts, they will get nothing.

By Chisha Mpundu

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31 Responses to Analysis: No Local or International Court will declare HH President

  1. go back to your notes and try read moden international law books. simply dull!

    lawyer
    December 1, 2016 at 8:41 am
    Reply

  2. I wish it can happen, fade up seeing thing going up every time with this government of the rich pipo

    Professor. Cathez
    December 1, 2016 at 8:47 am
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  3. Chisha, you also seem to encourage stealing and corruption in Zambia from the way you vent anger at HH and GBM’s continued mounting of pressure on the matter. What HH and GBM want to teach us all Zambians is that stealing and corruption are criminal offenses which should not be condoned or tolerated in our country. What guarantee is there that the thief or corrupter will stop stealing or practicing corruption if he/she is not punished for committing such crimes or if he/she does find it difficult to steal or corrupt each time he/she wants to? What HH and GBM are doing is to not only win the presidency at the end of the day but to also make it difficult for the thief or corrupter to steal or practice corruption in the future! I personally give a part on the back of HH and GBM for they are doing a noble job!

    Concerned Citizen
    December 1, 2016 at 9:08 am
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  4. Chisha, you also seem to encourage stealing and corruption in Zambia from the way you vent anger at HH and GBM’s continued mounting of pressure on the matter. What HH and GBM want to teach us all Zambians is that stealing and corruption are criminal offenses which should not be condoned or tolerated in our country. What guarantee is there that the thief or corrupter will stop stealing or practicing corruption if he/she is not punished for committing such crimes or if he/she does not find it difficult to steal or corrupt each time he/she wants to? What HH and GBM are doing is to not only win the presidency at the end of the day but to also make it difficult for the thief or corrupter to steal or practice corruption in the future! I personally give a part on the back of HH and GBM for they are doing a noble job!Don’t discourage these noble men from doing what most of us Zambians cannot do.

    Concerned Citizen
    December 1, 2016 at 9:19 am
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  5. Who is this Chisha Mpundu?Is he a practising lawyer? What interests does he have in writing such a long article? Does Mpundu know that under the current Zambian Constitution Presidential Petetioners have a right to be heard in Concourt? Does Mpundu know more importantly ,that the Bill of Rights Act is administered by the High Court and not Concourt? Appeals made in the High Court go to the Supreme Court and not Concourt. HH & GBM have already achieved one objective.Justice Chitabo has already acknowledged that in terms of the Bill of Rights the Petetioners have a right to be heard and Concourt did hear the Petetioners.All Petetioners of MPs seats winning or losing have been heard and are being heard so also Presidential Petetioners want to be heard are being heard in the High Court. If the Petetioners do not contest the electoral theft in 2016 and wait for 2021 the same vote rigging will be repeated by the same vote thieves.From these Petetions there are lessons to be learnt.ECZ and Concourt need a major overhaul to improve their service delivery in future elections. That is one of the purposes of disposing off this Presidential Petetion which is alive and kicking. I guess that is what is bothering Cde Chisha Mpundu.

    Chongo
    December 1, 2016 at 9:23 am
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  6. Dear editor, I think your observations are correct but you must also know that should this matter be left alone without raising to much dust, you can mobilise the masses come next elections the theives will strike again, we will still be mourning the same loss. This has kept the dictators like Mugabe & and his Ugandan friend in power to pass away while in state house and Zambia is about to slip in the same shoe. The only way to fight this cancer is now when it is still young. Make as much noise as to possible that even UN should be invited to monitor the next elections. It is wrong to assume that this is a battle for hh & gbm to be president, no, this is the fight for every Zambian to resist dictatorship, & the fight should be now, if we do not want to be another Zimbabwe.

    Life experience
    December 1, 2016 at 9:41 am
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  7. Article 28, part III of the constitution of Zambia provides that the High Court is the only one with the mandate to hear cases to do with violations of people’s rights and not concourt. In an event where my rights are abrogated by any individual or institution, I must seek redress through the high court regardless of how big the one who has abrogated my rights is, and I think this is good because it enhences the concept of checks and balances within the judiciary. Articl 18 of the constitution was indeed violated by the concourt. Mr Mpundu you are basing your arguments on the fact that almost all petitions that were ever done in Africa failed, but remember also that not all days are sundays, one day it will be different. Justice shall prevail and the corrupt and crooked shall get their dues.

    Barrister Hang'andu
    December 1, 2016 at 10:05 am
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  8. Someone will cry in this race.lets not forget our true spirit of our country zambia,if today we can stand and become rebelious to what we agreed, then someone will cry, cause if we knw the truth about these violance,then we decide to keep quilt, meaning we hav start worshiping people, not of what we have been known for, as a Christian Nation, lets stand for the truth because God is watching us!!! Or even if its not on Earth,but when unknown end comes you shall cry!!!

    Henry Simovwe
    December 1, 2016 at 10:12 am
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  9. let justice prevail

    goodone
    December 1, 2016 at 10:55 am
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  10. The writer sounds as if he is very intelligent and yet not. AS THE NAME SUGGESTS, the International Court of Justice is a court that deals with any injustices committed by a stronger regime like a Government of a particular country upon the weaker masses of that country, its citizens. The writer thinks the UPND Lawyers are so stupid that they don’t understand law. To the contrary, these cases going through the courts of law in Zambia, are for the purpose of having evidence that the items for the petition to the International Court of Justice had passed through the courts in Zambia before tabling them to the International court. Infact for us in UPND, the process to the International court process has already started.
    I hope I have removed the cobwebs from this writer’s mind.

    kanwa kahosha
    December 1, 2016 at 1:07 pm
    Reply

  11. God shall fight for His people. You can deceive man but always remember God is never deceived. If Edgar won the elections then God should bless his leadership but if he rigged elections the same God should curse him in his leadership.

    Development, good living for all, Peace and love is what we want all of us as Zambians.

    Mainza
    December 1, 2016 at 4:27 pm
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  12. We should reflect before we comment on articles. What Chisha is saying is straight forward. Chisha has taken time to analyse the issue at hand and arrived as what he sees as inevitable given the system set up. Chisha has either leaked what the PF has seen as a loop hole in this case. May be this was the SWOT analysis the PF strategists did in the grand plan. I cannot say more as the case is in the courts of law. At the same time I do not believe that the brilliant legal minds and intellectuals in UPND were so naive as not to see how the set up of the courts mentioned favours state structures. Indeed it would appear as though these legal structures were designed on the assumption that those holding political power fully represented citizens. We all know that not all of them do, especially in Africa. However, Chisha must understand that UPND has done very well by using the courts to announce to the electorate and the world at large that they had evidence to prove that their party won the 11 August 2016 elections and were only prevented from forming a new government by the losing party PF which used its privileged position of being the party in power to influence Zambian courts including the Constitutional Court to block UPND. UPND has successfully done this and this will remain in the minds of Zambians as well as the annals of history, even if the UPND quest in the courts eventually fails. It is therefore not a waste of time and resources for UPND to continue this route. As for those who are insulting or criticising Chisha, please reflect and read in between lines before you write or speak. The author could have knowingly or unknowingly unveiled a possible grand plan which the UPND strategists should consider. Chisha is a messenger who should not be killed and his information killed. Ever wondered why PF lawyers are so confident?

    Leadership is a serious matter
    December 1, 2016 at 10:09 pm
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    • I like this one.

      Zambia
      December 3, 2016 at 11:53 am
      Reply

  13. P.F Won Election. Imwe Even An Imbecile Wil Know That This Case Is Going Nowhere.

    Joe Banx
    December 2, 2016 at 10:22 am
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  14. PF has more support Countrywide than Upnd and as long as Upnd field HH they will never beat PF . HH knows that if he admits that he lost the elections Upnd will to look for another leader.Ba Upnd which election did you win??? How many Mps do you have??. The Zambian people have rejected you 5 consecutive times wake up change your leader!

    Mambwe
    December 3, 2016 at 2:26 pm
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  15. Chisha Mpundu’s is the most enlightened analysis so far. Solid and informed, no emotions. That is the kind of objective analysis we need, not emotion and blind faith in a party. You are the evidence that what you have just implied is not true – ‘in Zambia, it is not about evidence; it is about jobs, money and ethnicity’. Are you from Monze or Kalomo? If this was written by Mweemba Haankolwe, it would have been passed as ethnic support. So there is hope for Zambia after all.

    Very well written and presented case. We need more of this type of analysis that also gives advice. Anyone taking issue with this piece should look at his or herself and ask what is wrong with her or him.

    Nam
    December 3, 2016 at 2:29 pm
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    • So there are no emotions in Chisha’s analysis eh? How come then he keeps on saying ‘even an imbecile knows that this petition is going nowhere?’The UPND legal team is being led by Sangwa, one of the most brilliant constitutional lawyers in the country. To equate this team’s work to imbecilimbecility is absurd.

      Saimbwende
      December 5, 2016 at 8:15 am
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  16. Ba Upnd you were given 14 days to present your evidence by the Concourt but you kept on bringing preliminary issues and today you want to claim that you were not heard??. If it wasn’t for Southern Province it would have been a massacre!!!!

    Mambwe
    December 3, 2016 at 2:43 pm
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  17. No matter what ever some one with a Bemba name does it indeed stinks In some noses, Bemba people are the most hated by the upnd .
    Any one of them think of nothing but hatred ,which will take them no where .
    I have never seen such hatred in my whole life I just don’t know GBM is doing in that group of failures HH has never conceded any defeat he is a stinking dictator

    nshilimubemba
    December 3, 2016 at 3:10 pm
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  18. ” chisha mpudu????????????? The names have it all.

    NEUTRAL
    December 3, 2016 at 5:39 pm
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  19. GOD, WE, UPND STILL HAVE TRUST IN YOU, SORT OUT THESE THIEVES, PF WITH THIER MASTER THIEF, LUNGU. ZAMBIAQNS HAVE SUFFER VERY MUCH IN THE HANDS OF LUNGU AND HIS ELDER BROTHER RUPIA BANDA

    Jata Nailuma
    December 3, 2016 at 7:49 pm
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  20. The fact is that Lungu Stole and Killed People.

    Jata Nailuma
    December 3, 2016 at 7:51 pm
    Reply

  21. If the courts find that the current government is illegitimate, the people will go on the street to remove it.

    Goodfellow Jordan
    December 4, 2016 at 5:55 am
    Reply

  22. Dream on dreamers and never wake up from your dreams.

    shaka
    December 4, 2016 at 8:59 am
    Reply

  23. Kindly im requesting to be receiving updates from zambianeye news.

    Michael Chamunji
    December 5, 2016 at 4:39 am
    Reply

  24. what Chisha is saying is simple, the ICC is a court for international crimes and crimes against humanity. Its like somebody stole your cassava from your field and you take him to the supreme court. What crimes against humanity has Edigar committed? Can you give examples? You will just look foolish kubasungu and you will be lucky if they will even tolerate you ba UPND. Where is Jack Mwimbu and Martha Mushipe kanshi nto advise? Oh I forgot these are the lawyers that abandoned HH and GBM when they needed them most!

    Lozi bull
    December 5, 2016 at 6:39 pm
    Reply

  25. Ba Upnd God is for all of us,if indeed God willed that HH was to be President nothing PF would have done was going to stop it e.g. KK,Chiluba,Sata. God definately willed that Lungu be President

    Mambwe
    December 6, 2016 at 7:45 am
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  26. Yes for us who are not sure of such things the writer sounds very authoritative and speaking with finality. It sounds all other efforts are dull and rather shooting in the dark. I thought there will even be no contrary views and I thought all is over. So there could still be hope?

    Beware Beware
    December 6, 2016 at 9:16 am
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  27. I would advise people to visit the ICTJ website http://www.ictj.org to understand what they do. Though well articulated, Chisha’s article does not provide the cardinal points of what international courts would do for the case of UPND. As long as UPND has evidence, the ICTJ will put the case on trial and come up with a resolution and recommendations thereafter. If PF committed what can be considered as criminal during the elections, then ICTJ will rule in fovour of UPND and what this means is that we have an illegal government. Since ICTJ is an international courts, its resolution will have international repercussions on Zambia.

    The ICTJ website says:

    1. “Those who commit crimes on a large or systematic scale should be held accountable. ICTJ’s Criminal Justice program seeks to strengthen criminal justice initiatives worldwide by providing technical assistance to those engaged in complex investigations and prosecutions and by sharing lessons learned from our field programs and research” and that,

    2. “Investigations and trials of powerful leaders (whether political or military) help strengthen the rule of law and send a strong signal that such crimes will not be tolerated in a rights-respecting society”.

    Sanders
    December 7, 2016 at 2:44 am
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  28. Since Mr. Chisha agrees that HH won the election, and he seems to be so convinced, can he now show the world the matrix of the theft that has been on the lips of many. Will it be treasonable to publish the whole scenario by facts and figures. Granted, we missed a grand opportunity when time for court hearing lapsed, but what harm will it cause if the scheme was fully exposed? Since this debate started, nobody has ever availed concrete evidence of theft, or did I miss it?

    I agree with Chisha on the need for UPND to focus their minds on mobilizing themselves for the future. The court battle will take them nowhere.

    M.M.
    December 8, 2016 at 10:28 am
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  29. Chisha Mpundu, your name says it all – dimwit supporting theft i Zmbia.

    Muna Dekhane
    December 8, 2016 at 10:13 pm
    Reply

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