Dismiss HH’s presidential petition “right to be heard”, State tells Court

HH

Solicitor General Abraham Mwansa has told the Lusaka High Court to wholly dismiss the UPND presidential petition on ‘right to be heard’ saying it’s a waste of the court’s time because the lower court has no powers to direct the Constitutional Court to rehear the case.

However, UPND lawyer John Sangwa has maintained that the Constitutional Court violated article 18(9) of the Constitution by dismissing the petition without hearing it adding that hearing of the petition was not fair and the time given was unreasonable.

This is in a case in which UPND leader Hakainde Hichilema and his Vice Geoffrey Bwalya Mwamba have asked the High Court to determine whether their right to be heard in a Presidential election petition was violated when the Constitutional Court dismissed it on September 5, 2016, for want of prosecution.

When the matter came up, last week on Thursday, before High Court Judge Mwila Chitabo, Mr Sangwa maintained that the petitioners right to a fair hearing was violated by the Constitutional Court.

He recounted the the court had directed the parties that commencement of hearing of the presidential petition would commence on September 2 and end on September 8 but ended up dismissing the petition on September 2.

“This is what transpired , the Constitutional court directed the parties to file bundles of documents and records of proceedings by September 1, 2016 . The directions were that we will start on September 2, which was a Friday and conclude on Thursday, September 8, 2016. The court gave the directions that as long as we start within the 14 days, it’s okay. On August 31, the petitioners and respondents appeared before the single judge of the Constitutional Court. But, unknown to the petitioners, the respondents advocates had filed submissions telling the court that you must conclude the case by September 2, 2016 and any hearing after September 2, will be a violation of the Constitution,” he said.

“We trusted the Constitutional Court, we believed the directions that were being given. We have been long at the bar. There’s no way we would have been careless in the manner that has been suggested. On September 1, the single judge directed that trial should commence and conclude on Friday , September 2, 2016. The earlier direction was vacated without any input from the petitioner’s advocates. How could it be humanely possible to conduct a case of this matter, with well over 2000 pages documentary evidence, to start and conclude a case like this in 24 hours?”

Mr Sangwa adds that the Constitutional Court then delivered a ruling in which they reversed their own directions and dismissed the petition for want of prosecution.

” On Monday, the Constitutional Court went on to deliver a ruling in which the three judges who formed the majority, reversed it’s own directions and dismissed the petition for want of prosecution, without affording the petitioners the opportunity to be heard,” he said.

He asked the court to resolve whether it it was fair to give the petitioners four hours to prosecute their case.

And in his submissions, Solicitor General Abraham Mwansa argued that the Constitutional Court had the power to interpret all provisions of the Constitution, the bill of rights inclusive.

He submitted that the Constitutional Court was properly served with the jurisdiction to interpret that the petitioner’s petition could only be heard within the period of 14 days.

“Therefore a judgement of the Constitutional Court arising out of the interpretation of the provisions of article 101(5) cannot be assailed and termed a violation of the right to be heard as provided for article 18(9) of the Constitution. We submit that this court has no jurisdiction to reveal the judgment of the Constitutional Court on the interpretation of article 101(1),” he said.

“We pray to this court that we may be granted the motion to have the petitioners petition dismissed in its entirety as it is misconceived at Law and lacks law merit. This is not a petition that should have been brought before this court. It is a waste of the court’s time,” he said.

Ruling has been reserved to Friday November 23, 2018.