Maravi

PF opposes MMD origins case submissions

PF opposes MMD origins case submissions
By Maluba Jere
Tue 09 Aug. 2011, 14:02 CAT

THE opposition PF has asked the High Court to dismiss with costs the preliminary issues raised by the Attorney General, the MMD and the Electoral Commission of Zambia in a case relating to President Rupiah Banda's parentage issue.

According to submissions in opposition to the defendants' submissions, Wynter Kabimba who sued in his capacity as PF secretary general, asked the court to dismiss the preliminary issues on grounds that they are misconceived.

In this case, Kabimba sued the Attorney General, MMD national secretary Major Richard Kachingwe and the Electoral Commission of Zambia claiming that the ruling party cannot by law sponsor President Rupiah Banda because his parents are not Zambian citizens.

Kabimba is claiming a declaratory judgment or order that the parents of President Banda are not citizens of Zambia by birth and that the MMD cannot by law sponsor him as a presidential candidate in the 2011 presidential and general elections to be held on September 20, this year.

He also wants an interim order of injunction to restrain the MMD from sponsoring President Banda as its presidential candidate.

Kabimba is further seeking a declaratory judgment or order against the ECZ contending that the Commission cannot and should not by law prescribe its mandate in accepting nomination papers from President Banda as presidential candidate of the MMD because his parents are or were not Zambian citizens by birth.

But the Attorney General, for and on behalf of the MMD and the ECZ, raised issues wondering whether or not the court has jurisdiction to hear the action commenced.

He also wondered whether or not the ECZ may be sued as a party in the manner employed by the PF.

The MMD also contended that the writ of summons and statement of claim was the wrong mode of commencement to impugn the qualifications of the election to the office of the President as stipulated by the provisions of Article 34 of the Constitution of Zambia as read with the provisions of Section 20 and 21 of the electoral Act number 12 of 2006.

The MMD also submitted that the High Court of Zambia was wanting in jurisdiction as any question which may arise as to whether any provision of the Constitution of Zambia or any law relating to the election of the President had been complied with must be referred to and determined by the full bench of the Supreme Court pursuant to the provisions of Article 41 of the Constitution of Zambia.

It further submitted that the High Court of Zambia was further wanting in jurisdiction as these proceedings were premature with respect to any question which may arise as to whether any provision of the constitution or any law relating to the election of the president has been complied with can only be commencement after the election to the office of the president has been conducted and the president sworn into office.

They added that the court was legally and effectively precluded from considering the interests of non parties and that in this case, President Rupiah Banda was a person holding the office of President in terms of Article 43 of the Constitution of Zambia and therefore civil proceedings purportedly instituted against the MMD but with President Banda as the principle subject matter.

Responding to the issues raised, the PF submitted that the question at hand was not about the validity of nominations or qualifications of a person already elected as president but compliance by a political party sponsoring a presidential candidate to the law relating to the qualifications and or nominations of a person proposed or nominated to be sponsored as a presidential candidate by a political party, saying in this case the MMD.

He explained that Section 21(1) of the electoral Act number 12 of 2006 provides that a candidate for election as president shall, on such day, at such time and at such place as may be determined by the commission, deliver to the Returning Officer-a)The candidate's nomination paper, b)The prescribed election fee, c)The prescribed statutory declaration of the candidates assets and liabilities and, d)An oath or affirmation, as set out in the schedule, of the candidates' Zambian citizenship and of that candidate's parents being Zambian citizens by birth or descent.

Kabimba stated that it followed therefore that where nominations have not been or were yet to be conducted, Article 41(2)(b) of the Constitution of Zambia and Section 21(3) of the Electoral Act number 12 of 2006 whether read together or not are not applicable and hence irrelevant adding that those were post nomination or election provisions.

He submitted that the action before court was wholly against the MMD who in 2008 sponsored a candidate who did not qualify under Article 34(3)(b) of the Constitution.

“By the second defendant putting forward Rupiah Banda, again as their candidate, in the 20th September 2011 elections, knowing very well that Rupiah Banda does not qualify under Article 34(3)(b) of the Constitution of Zambia is not only illegal but also an act of recklessness,” Kabimba submitted.

He further submitted that the case at hand was essentially one that sought to restrain the MMD from knowingly, intentionally and unconstitutionally sponsoring its adopted presidential candidate, a member who does not qualify for nominations.

Kabimba stated that his party's case was properly before court and that the court had jurisdiction to entertain that cause.

He said the other contention by the Attorney General on behalf of the ECZ that the commission had been improperly joined to the proceedings was equally gravely misconceived at law.

Kabimba argued that the ECZ is a corporate body with capacity to sue and to be sued.

He submitted that a thorough perusal of the electoral Act revealed that the ECZ is independent and not subject as alleged by the Attorney General to any line ministry.

The PF invited the court to take judicial notice of the fact that the ECZ had been sued as a party in its personal capacity in previous petitions both in the High Court and Supreme Court.

“On the totality of the foregoing, we submit that the preliminary issues raised by the defendants are misconceived and this court should dismiss the same with costs,” Kabimba submitted.

The matter comes up today for ruling before judge-in-charge Jane Kabuka.

Labels: CONSTITUTION, HIGH COURT, MMD, PF

posted by MrK @ 5:39 PM