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3 foreign-based Zambian lawyers demand Con Court explanation on application rejection

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Three foreign-based Zambian lawyers, Professor Chaloka Beyani, Melvin Mbao, and Cephas Lumina, whose application to join to the President Edgar Lungu eligibility matter as friends of the court was denied, have written to the Justice Hildah Chibomba President Constitutional Court of Zambia.

The foreign-based academicians who were to be represented by former LAZ President Eddie Mwitwa, have complained to the President Constitutional Court saying they were mortified to learn that the Court declined to hear their application, which was duly filed in Court within the time prescribed for the hearing of the petition, without the Court making a judicial determination thereon.

In their letter of complaint to the President of the court, said they would want to protest in the strongest terms possible, and seek an explanation from the Court regarding the way their application was treated.

Read full letter below:

The Honourable Madam Justice H Chibomba
President
Constitutional Court of Zambia
Independence Avenue
LUSAKA

Dear Madam Justice Chibomba,
Legal Resources Foundation and Others v Edgar Chagwa Lungu and Another, Petition No. 2021/CCZ/0025 and 2021/CCZ/0027 (Consolidated)

We, the undersigned, being genuinely concerned with a matter of considerable constitutional importance and overwhelming public interest before your Court and in compliance with the Constitution, section 12 of the Constitutional Court Act (No. 8 of 2016) and Order IX, rule 20 of the Constitutional Court Rules (Statutory Instrument No. 37 of 2016), did on 7 June 2021, file an application for admission as amicus curiae in the above-mentioned matter.

Our pleadings were duly certified by the Master of the Court as compliant with the Act and Rules of Court.

In our application aforesaid, we made it clear that we had no personal interest in the outcome of the proceedings save a professional interest in seeing that the Court fulfils its mandate as guardian of the Constitution under Article 128 of the Constitution in a manner that promoted the values and principles enshrined in the Constitution, as well as the development of the law.

We also pointed out that as Zambian professors with considerable experience in Constitutional Law and other areas of Public Law pertinent to the Petition, it was our bounden duty to assist the Court by way of providing pertinent additional information and insights in respect of legal principles as well as local and comparative constitutional jurisprudence.

We were also mindful of the time constraints under which your Court is required to hear and determine the petition. However, our application was well within the period of 21 days under Article 52(4) of the Constitution.

With that in mind, it was our firm conviction that our arguments and the authorities relied upon would assist the Court in arriving at a just outcome. Our request to join as amicus curiae was not unusual.

Superior Courts in both common law and civil law jurisdictions all over the world do receive and entertain amicus curiae briefs. The international and regional courts have a similar practice.

We were, therefore, mortified to learn that the Court declined to hear our application, which was duly filed in Court within the time prescribed for the hearing of the petition, without the Court making a judicial determination thereon.

We view this turn of events in the most serious light and would like, therefore, to, by way of protest in the strongest terms possible, seek an explanation from the Court regarding the way our application was treated.

In our considered opinion, the Court either failed or declined to exercise its judicial authority and violated, in a most egregious and flagrant manner, our constitutional right of access to the Court and of our right to a fair and impartial hearing by an independent Court.

In our view, the matter before the Court is of immense weight and has far- reaching implications for our constitutional democracy.

We respectfully request that the Court consider and formally rule on our application, as it is bound to do in respect of any application properly before it, prior to delivering the judgment in the Petition.

Yours sincerely,

Copies to:

(1) The Chief Justice of Zambia
(2) Judges of the Constitutional Court
(3) Legal Resources Foundation (First Petitioner)
c/o Messrs Simeza Sangwa & Associates
Lusaka
(4) Dr Sishuwa Sishuwa (Second Petitioner)
c/o Messrs Simeza Sangwa & Associates
Lusaka

(5) Chapter One Foundation (Third Petitioner)
c/o Messrs Simeza Sangwa & Associates
Lusaka
(6) Edgar Chagwa Lungu (First Respondent)
c/o Messrs Eric Silwamba Jalasi & Linyama Legal Practitioners
Lusaka
(7) The Attorney-General (Second Respondent)
New Kent Building
Lusaka
(8) Messrs Mwenye & Mwitwa Advocates
Lusaka

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