Maravi

Court allows Sata to amend paragraphs in election petition

Court allows Sata to amend paragraphs in election petition
Written by Mwala Kalaluka
Thursday, January 22, 2009 9:45:28 AM

PRESIDENT Rupiah Banda's lawyers have asked for sufficient time to study an application for a vote recount by Patriotic Front leader Michael Sata before it is heard by the Supreme Court. And the Supreme Court has allowed an application by Sata's lawyers to amend some paragraphs in the election petition.

This is a matter in which Sata has filed a petition in the Supreme Court against President Banda, the Electoral Commission of Zambia (ECZ) and the Attorney General over the results of last year's presidential election.

Deputy Chief Justice Ireen Mambilima, sitting with other Supreme Court justices Marvin Mwanamwambwa, Sandson Silomba, Peter Chitengi and Dennis Chirwa, said the ball to study and research over the application for an order of a vote recount and then file an affidavit in opposition was in the hands of the respondents.

When Sata's lawyer, Bonaventure Mutale stood up to make his application for an order of scrutiny and vote recount, Attorney General Mumba Malila said they had filed a motion in court to raise preliminary issues relating to the above summons.

He said there were some matters that ought to have been determined in respect of the preliminary issues before the application for an order of scrutiny and vote recount was heard.

At this point, Malila made reference to the Supreme Court ruling on the same aspect in the presidential petition of Anderson Kambela Mazoka against Levy Patrick Mwanawasa and others of 2002.

However, the Supreme Court justices asked him if he was not prematurely responding to the application proposed by the petitioners.

In response, Malila said he was only trying to give reasons why they felt the preliminary issues should be dealt with before the hearing of the application.

But justice Mambilima said it would appear that Malila was responding to the proposed application.

Mutale asked the court to allow the petitioners to canvass the application before the other party could respond.

Malila said the petitioner could proceed with the application and that they would treat the preliminary issues raised as their rebut.

Before Mutale could make the application, another respondent's lawyer, a Mr K. Shonga, said time was necessary for them to file an affidavit in objection to the application.

"We are still in a quandary, my lady, as regards that aspect of the application," Shonga said.

He said there was need to know on which authority Sata's lawyers brought such an application before court.

But Mutale said the arguments from the respondents were unusual and that he would be able to expound the authority where the application was derived from if he was allowed to go ahead and read the application.

Mutale said the application was based on authority of Common Law principles, even though the Zambian electoral Act did not provide for that. He said the law relating to elections was not just confined to the electoral Act.

At this point Mutale asked for time to consult with his colleagues and thereafter said they would abandon the aspect of scrutiny and only seek for an order for a vote recount.

But President Banda's lawyer, Professor Patrick Mvunga said there was need for Sata's lawyers to focus on the specific rule, law or order under which the application for an order of a vote recount was being sought. He said the manner in which the application was made placed them at a disadvantage.

Malila agreed with Prof Mvunga's observation.

In his response, Mutale said he would be able to shed more light over the authorities justifying the application in his presentation.

As Mutale made his application, Shonga argued that there was still need for Sata's lawyers to give specifications as to where they derived their authority before the application was heard.

Shonga said there was need for the respondents to have an opportunity to apply their minds to the law.

But Mutale said that was not necessary since he could provide the authorities there and then.

He said he had relied upon a lot of English cases and three High Court judgments made by three eminent judges that became Zambia Supreme Court judges, including the current Chief Justice Ernest Sakala, as derivates of the application's authorities.

Mutale said the Zambia Law Report of 1984 on page 59 states that an order for a vote recount helps to resolve unclear situations.

Prof Mvunga said the application was misconceived because while Common Law was good enough an authority, it could not supercede the Statutes.

He said the electoral Act Number 12 of 2006, in section 93 clearly says how the election of a candidate could be questioned.

Another lawyer for President Banda, Christopher Mundia, said the petition was premised on the electoral Act.

Justice Mambilima said the vote recounts had been granted before, but that it was up to the respondents to study under which conditions they had been given.

Malila said in that regard they would require a week to prepare the affidavit of opposition and file it in court.

Malila said the application should be dealt with before the petition was heard.

Mutale hoped the respondents were taking the petition as a matter of precedence, even as they asked for more time.

The court set February 6, 2009 as the date for hearing of the application.

And justice Mambilima granted an application by Sata's lawyers to amend certain paragraphs in the petition.

Prof Mvunga said they had objected to the application initially because the petitioner had not provided certain ingredients relating to the rules of practice on which the application for amendment was grounded.

Prof Mvunga said since the petitioner had highlighted the rules in his presentation before the court, they would leave it to the court to decide.

Labels: ECZ, ELECTIONS, SATA

posted by MrK @ 9:47 AM