Investigate the 3 ConCourt judges

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By professor Michelo Hansungule

What happened in our Constitutional Court earlier this week is spectacularly shocking. The three judges involved in this strange decision must personally be made accountable for what they did over the weekend and in Monday. In fact, PF handling of the presidential election petition since the petition started including refusal to have the necessary documents served on Edgar Lungu in his capacity as respondent has not only baffled many Zambians but friends of Zambians around the world.

How can a court, which in its Friday midnight decision unanimously decided to hear the petition on Monday and Tuesday, and respondents on Wednesday and Friday suddenly u-turn and instead announce that three of its members decided over the weekend to denounce the unanimous decision of the five member bench? This, to say the least, is unprecedented in the history of the Zambia. It has never happened and neither is it supported by law that judges who were part of a full bench can sit on a weekend without parties to the case and without some of their colleagues to change a decision they arrived at unanimously with their colleagues which decision was announced to the parties and as per practice to the rest of the world?

The only other case I remember where this happened is when now Chief Justice Chidyausiku of Zimbabwe, as acting judge of the High Court, sat on a Sunday to hear a complaint by parties who had lost their case against eviction from a farm land they had invaded. In that case, one of the evictees Murilo on behalf of his colleagues lodged an application before the High Court protesting the Supreme Court’s decision which decided in favour of the Zimbabwe Commercial Farmers Union seeking eviction of the land invaders from land of a Commercial Farmer’s Union member. Acting High Court Justice Chidyausiku ‘overruled’ the Supreme Court and went ahead to set aside the apex Court’s unanimous judgment something which earned the ire of the Court and which was completely at odds with common law practice in the ommonwealth.  But this is Zimbabwe and I for one never would have thought even in my widest of dreams that instead of teaching the death of the rule of law in Zimbabwe, a day will come when students of law will rather be using Zambia as an example of what Professor Muna Ndulo rightly calls a ‘failed state’. Needless to say immediately after this case, Chidyausiku was appointed Zimbabwe Chief Justice and the rest is history.

Though like many other Zambians I am shocked at the unprecedented development in Court today, somehow I could foresee it coming. I know Edgar Lungu personally unlike most of those who support and are ready to die for him. Just like my young brother HH, Edgar [is] or at least used to be my friend. I know for certain Edgar Lungu did not win the August 11 elections; he did not and he knows it himself. I have never doubted throughout that he will abuse all the state institutions including the CC to defy the will of the people and the rule of law in order to maintain power regardless. Because he did not win he used the Electoral Commission to steal the vote. Because he knew what will come out if the petitioner was heard, he would not want the petitioner to be heard as guaranteed for him by the Constitution. If the petitioner had been heard, the result will have been exposed in the open for all to read, see and hear for themselves something which would have resulted in an immediate eviction of Edgar from the presidency he is already holding illegally. Therefore, Edgar made sure the case died in its track and this is what happened this morning in the CC. Hat it proceeded, Petitioners were going to show Zambians how the vote particularly the Lusaka vote was blatantly rigged and Edgar knew petitioners had solid evidence with them to prove how this happened? They still have that evidence with them.

Clearly today’s CC developments constitute the Zambian Penal Code’s Section 112 obstruction and defeating the course of justice and must as a minimum immediately be investigated. Petitioner’s right to be heard was obstructed by no less an institution than the court itself, it can’t be. This must be investigated immediately by police to establish what happened and culprits taken to court. Only this will restore Zambia’s image now seriously damaged. Zambia police must quickly move in and institute investigations into apparently serious misadventure in court. It is not enough to refer the three judges concerned to the Judicial Complaints Authority which has no penal sanctions to enforce its recommendations/decisions. Besides, the morning’s developments are too serious to be referred to administration with only jurisdictions to recommend to the same authority who happens to be the beneficiary of the misadventure.

Meanwhile, the three judges who changed the unanimous decision over the weekend have no choice but to resign their positions immediately. Given this has never happened before and is quite unprecedented and even illegal for judges to sit on a weekend without parties or their colleagues and rescind a unanimously arrived at decision, they must take responsibility and resign.

That is the epitome of judicial irresponsibility! It is indecisive and a mockery of the court for it to ‘rescind’ it’s own decision without any of the parties making any such request and without giving parties a chance to make representations, and worse, without notice! It appears obvious that there was political interference and the split makes it even more suspicious. So on what basis did the three judges dismiss the petition if the parties didn’t even advance arguments? This is by far the most irresponsible way of handling an election petition on the continent. It will be hard for the court to regain its credibility after this disastrous precedent. I can’t even begin to contemplate the political consequences.

SADC and the African Union must quickly move in and suspend Zambia from their organs. What has happened in Zambia is not an election but clear unconstitutional change of government and the international community has an obligation to act to restore democracy and constitutional order. From the time Edgar Lungu refused to surrender power to the Speaker of Parliament in line with article 104 (3) of the Constitution, he seized power illegally against the wording of the constitution. Now, he has unilaterally barred the CC from hearing the petitioner in line with well-articulated principles insisting on an independent judiciary. All the instruments of the AU and the SADC as well as requisite UN instruments eloquently insist of a free and fair election including the right to complain.

Chief Justice Ireen Manbilima, her deputy Amusa Mwanamwaamwa and other judges have a duty to not be part of this shenanigan and keep away from any purported swearing of an illegal president who seizes power in this manner.

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9 Responses to Investigate the 3 ConCourt judges

  1. Why not suspend them for violating the constitution by extending time beyond constitutional limits.

    Why the three?

    The author seems to be very biased and acutely subjective.

    It is born from a cadre mentality.

    Peace for Zambia
    September 8, 2016 at 8:19 pm
    Reply

    • Why say Prof giving an impression that what is submitted is objective and possibly neutral analysis! Why not just say one of the cadres?

      As for UPND’s please petition, the matter should not be taken out of context. Tge judges made the right decision to correct the mistake the had made on Friday of allowing an illegal extension of time beyond what is constitutionally stipulated.

      In order uphold the constitution the judges realised the need to reverse the extension if the 14 days constitutional limit to the petition.

      What can the examiner mark if you miss the exam? Nothing. This petition lost its allowable time, so it was as good as a student who missed an exam.

      Which constitution provides for handing over power to the speaker following a petition under initial ballot?

      It appears HH is quite a good music composer. He composes a song;

      ” A eeeh, a eeeh;
      handover power, a eeeh!
      A eeeh, a eeeh,
      To the speaker, a eeeh!”

      And amazingly, within 14 days, it is a hit, and everyone of his supporters is singing it?

      Come on, there is no handing over power following a petition under the initial ballot, covered by Articles 101 and 102.

      The handing over of power comes following a petition done subsequent to second ballot, or simply put round two (2) of elections, dealt with under Articles 103 and 104.

      Please read the constitution, don’t rely on HH. He read it only in one day, no wonder most of the issues are taken out of context.

      He thinks where the constitution stipulates 14 days, using the bill of rights Article 18(9) you can sit under a mango tree and extend it to 90 days if you feel that that is what is reasonable to you.

      The bill of rights is part of the constitution. It will not break the constitutionally stipulated timeframe in order to give you more “reasonable time”.

      Still regarding the said “reasonable time” legal subjectivity may only arise where no timeframe has been stipulated by the constitution.

      Otherwise you have to obtain your “reasonable time” within the confines of the constitution. And the best scenario you can get is to reach the maximum stipulated timeframe, as being the most reasonable.

      Baba even in an exam, you can’t say I have a lot bubling in me so give me more time to offload. No, just learn to summarise your knowledge so you can offload it within 3 hours.

      Single-sighted HH keeps saying “reasonable time, reasonable time”.

      He has become very vulnerable at this time and as a result trainee lawyers who are misguiding him.

      Now, where time limit is specified or stipulated in the constitution, the meaning of “reasonable time” means allowing up to the maximum allowable time within the confines of the constitution.

      It does not mean reasonable time must imply basing on individual views, feelings, opinion, or perception but what the constitution provides.

      You do not go outside of the constitutionally stipulated timeframe to get a subjective ‘reasonable time”, No!

      And it beats me to hears losers who say in advance that if lose I will not accept. If I win I will accept.

      They lose 47% to 50.35% TTY they refuse to accept. They say the zambians want me this time around.

      They say the election had so many irregularities such as G12 forms .

      But then they ask for a recount, and say that in the same election if the recount shows that I won I will accept, despite the said G12 form issues.

      They petition, but waste theirs including the court’s time, celebrating that they have managed to petition; bringing all manner of preliminaries.

      The petition fails through a majority rule by judges, 3-2. He says no I will not accept because 2 judges have supported me, even though 3 mischievous ones have no. Those 2 who have agreed with me are noble. Those who have not gone my way are crooked and mischievous.

      Just how do you handle a person like that?

      To me, either something has terribly gone wrong with him or he is merely a trouble maker.

      Revisiting the fourteen days, I wish to comment on an extra scenario that I heard on radio some people saying the petition sitting excluded the weekends. That there were only 10 days’ sitting instead of 14 days.

      The constitution does not say there shall be 14 days of sitting.
      Look, it is not about the number of sittings; it is about the timeframe allocated. The court can even sit once or twice, etc. but hearing must be done within 14 days.

      Still other people are saying, by hearing within 14 days, the constitution implies starting the hearing within 14 days! Come on, do people think that ‘to hear’ means ‘to commence hearing’?

      What do you understand by the statement:
      “Students must write their exams within 14 days”?

      Does the above sentence imply “students must commence their exams within 14 days”? or,

      does it mean “students must finish writing their exams before or on the 14th day”?

      You see, independent interpretation of law does not support the idea of taking sides in the matter, but looking at the matter from an objective point of view.

      So don’t try to twist law to support your view. So if you have no case, you have no case.

      Peace for Zambia
      September 8, 2016 at 8:33 pm
      Reply

  2. Has your name got anything to do with Hakashide ? Sounds like Dundumwezi Voting Scheme.

    Chikala
    September 8, 2016 at 8:23 pm
    Reply

  3. Pingback: Investigate the 3 ConCourt judges - Latest Africa News, Breaking News, Hot and Daily News

  4. That uturn 4 concourt judges done after our impoverish and rotten judicial system we have in Zambia after they were inticed some money from PF top leaders tuma.three bilion which thy have never touched in their life I believe.

    felix
    September 9, 2016 at 1:18 am
    Reply

  5. To me the BIG Question IS hw do you handle a person such as peace ✌ for Zambia ?? It seems to me he is a trouble maker or seriously something has just gone wrong ? with him– supporting de death of de rule of law in Zambia with his inner strength – he must be highly paid to mightly blind his reasoning??????

    robert sulamoyo jr
    September 9, 2016 at 3:52 am
    Reply

  6. Professor ni mumbwa mumbwa cikala cakwe

    silent voice
    September 9, 2016 at 4:25 am
    Reply

  7. Ati prof, ankale chabe stifuna ndawo ma votes yana sila and you still finger pointing. Yambani chabe Ka mpeni

    borngreat
    September 9, 2016 at 5:31 am
    Reply

  8. The CONCOURT Judges must be arrested and criminally prosecuted. As an international crime analyst. I have anLyzed what they did and they are better paraded before and international criminal tribunal. They should not be allowed to waste Zambia’s time and abuse the process like that.

    I was disappointed yesterday to read from the post newspaper online, that LAZ Vice President Eddie Mwiitwa accepted that the court system in Zambia is very confusing to some citizens and that the dismissal of the UNPD Presidential Petition was a mess???? When the Rule of law in Zambia is non existent and the dismissal of the petition may amount to crimes against humanity and it has affected the standing of Zambia on the international arena.
    He should instead come out openly and state that the Rule of Law is not existent and them LAZ contributed so much to the lawlessness in Zambia, and they need to take full responsibility of their actions to correct the level of malfeasance in the LAZ.
    I don’t even seem to understand the relevance of LAZ, which I challenge to disband and embark on professionalising Zambian lawyers and not to participate and funnel organised crimes in the Zambian judicial system. I am a victim of their criminality and I am privileged to speak out against them and demand international justice against Zambian Lawyers for targeting me just because of my UN benefits and embarrassingly stealing from me in abuse of the court process and abuse of state machinery.
    LAZ should be the first ones to be ashamed of the lawlessness in Zambia, and the current situation of the Presidential Petition. Zambia stands in suspense after the elections due to the crookedness of the way lawyers abuse the Court system. There were unnecessary adjournments within the enacted 14 days, just to make time pass so that the petition is thrown out and each party comes up with further claims. I urge the international community to conduct a thorough investigation into this matter. Zambians have been cheated out of their rights.
    Every Zambian has the obligation and responsibility to upholding human rights and protecting the constitution and we cannot look on whilst others live and get away with impunity in the pretext of doing justice. It is inhumanely sickening.
    We need a complete overhaul of the Judicial system in Zambia. We need an international intervention to repair the dysfunction in all Zambian state institutions, so as to build capacity and then restore confidence in the judicial system, policing and the legal fraternity itself. Such restructuring cannot happen in a fortnight but it needs a minimum of 5 to 10 years.
    The Concourt’s decision on the UPND Presidential Petition is there to show that Zambia needs such reforms. It is very disappointing and embarrassing to the whole world that elections were disputed as fraudulent and the petition was dismissed without being heard?. But that is exactly the way the judiciary has been operating and it portrays how disorganized this country operates. They don’t foster development and progress, but engage in plunder and abuse of authority..
    All the events before the elections and after, have ruined the credibility of the electoral system in Zambia , which needs to be uplifted from the Zambians and conducted by independent authorities. The President has not been sworn in since 11 August 2016, and the only legitimate expectation to resolve such matter is an international intervention and not otherwise.
    I read that the UPND have began process in the High Court to overturn the Concourt’s, decisio, which I support, as to me, such decision is void and null and not binding on the parties, as the CONCOURT did not have jurisdiction to sit and hear the matter after the expiry of the 14 days within which it was supposed to do so. Such decision was made after the expiration of the 14 days. Further, I believe that their rights to be heard may have been infringed upon, and this also justifies their decision to file for an injunction to restrain the Chief Justice from swearing in the President.
    However, even if she goes ahead and swears the President in, such swearing in may be challenged and the international community has the obligation of intervening. Are they going to recognise and mingle with a contested Presidential legitimacy?
    However, with the non existent of the Rule of Law in Zambia and that the law and justice have not been applied equally and fairly, we expect the UPND’s case to be thrown out by the High Court too.
    Much as their rights may have been infringed upon, they also infringed upon our rights, in abuse of the court process, and they ought to clean their hands of the wrong doing levelled against them. The UPND have been reported to the ICC for alleged crimes against humanity, some of which and in my case involved the abuse of the court process and not according me my rights to due process. How fairly can the High Court of Zambia grant them that due process which they denied others, and me in particular.
    Gilbert Phiri, their lawyer obtained a fraudulent void judgment to steal my belongings worth $210,000 in one day, without according me an opportunity to be heard, and avoiding trial, as his claim is false and illegal.
    Then he had already stolen my other belongings which cost me a $100,000 in collusion with Makebi Zulu Advocates, Margaret Muyoba and Jonas Zimba who obtained a fraudulent void Attachment order to steal my belongings, and when challenged, they committed Perjury in front of a Judge, an through a Ugandan National. To date the LAZ hasn’t disciplined them. The other belongings were stollen in collusion with Godfridah Kanyanga and her bailiffs on false pretext.
    Gilbert Phiri and Makebi Zulu Advocates allegedly induced the court Marshal to indefinitely adjourn the matter where they stole my Harrier. so as to get away with the impunity of stealing my vehicle and making me to lose an economic advantage of over K500,000 by now, in addition to USD37,000 the amount I spent in buying and shipping my vehicle from East Timor to Zambia. How can they go to seek equity with such unclean hands???
    The law is very clear that no court should help lawbreakers, or lend a hand to someone who finds his cause illegally. The UPND and PF allegedly used my vehicles for their campaigns, and the connection they have with the suspect lawyers is prima facie proof of such human rights violations.
    What justice are they seeking before the courts then when they stole such vehicles in abuse of the court process and used them for their elections campaigns?? Such is electoral fraud in itself and can only be effectively handled by an impartial tribunal.
    I have observed that both private lawyers and state lawyers are corruption oriented and motivated by abusing the court process. Most people in Zambia don’t trust lawyers, and they would rather represent themselves than engage a lawyer who will taunt and milk his client like a cancer. So they seem to have conspired with the judiciary to do their business corruptly to the fiscal detriment of the Zambian citizenry, such that when you do not have a lawyer, no matter how high merits your case has, it will not be decided on merits, but they will make you lose that case so as to encourage you to hire a lawyer who will them steal from you jointly with them, and the High Court Principle Registry clerk funnel such criminality through mishandling of files and only presenting documents from the lawyers who corruptly induce them to do so. Once I complained about my application not having been made and him Gilbert Phiri told me that it was probably the court Marshal who put her own application before the Judge after receiving K50 from the other party. This is insanity, for them to conspire and steal $300,000 worth of my belongings by inducing court Marshals with K50?? Zambia is a failed state.
    In my view, and as I earlier said. Since the Concourt did not have jurisdiction to sit after 14 days had expired. Their Ruling was null and void and it has no legal effect and it is not binding on either the UPND nor the PF. Further, it cannot even be recognised internationally.
    So both the PF and the UPND have the right to challenge such decision in any court, at any place and wherever they may want to claim their rights. Please see case law on Void judgments and court orders, available on the web and in all jurisprudences. The Rule of Law is now the guiding principle in the mess in Zambia and those that abrogated the laws of the Univesrse must be arrested and criminally prosecuted in an international Tribunal.
    On the other hand, the PF are reported to have reported the CONCOURT to the Judicial Complaints Authority, and this is right too, as the CONCourt abrogated the constitution in the manner they handled the Presidential Petition and they ought to be immediately suspended and investigated. However, the President will have problems in dismissing them once the Judicial Complaints Authority recommends their removal, but they may end up not recomm nding the removal due to conflicts of interest with his relative on the CONCourt, and the Zambian people will be cheated again.
    The Judicial Complaints Authority failed to suspend and investigate Judges who allegedly aided and abetted the pillaging of my belongings. How are they going to clear the Concourt. We just need an international intervention. Zambia’s judicial system is really in a mess and has infringed on the rights of the Zambian citizenry. It was even wrong for the Police to go and guard law breakers instead of arresting them.
    So international intervention is the only remaining best option for Zambia at the moment. I recommend Edith Nawakwi to be made the Interim President of Zambia, whilst the PF and UPND resolve their conflicts in an independent international justice mechanism. We off course need them to be criminally processed for the crimes against humanity they committed on us.
    It is dangerous for a country to stay longer without a sworn in President.

    ANTI COURT ABUSE
    September 9, 2016 at 8:52 am
    Reply

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