Maravi

UPND rally order wasn't served properly - Malila

UPND rally order wasn't served properly - Malila
By Kombe Chimpinde, Mwala Kalaluka and Allan Mulenga
Tue 11 Sep. 2012, 10:30 CAT

ATTONEY General Mumba Malila yesterday explained that he could not sign and advise police on the ex-parte order granted by the High Court for the UPND to hold its rally in Lusaka because it was dropped at his house in the night.

But Law Association of Zambia president James Banda said LAZ was deeply concerned that acts of intolerance and similar documented actions of arbitrariness on the part of the police, about which the lawyers' body had commented in the recent past, had continued unabated by the PF government.

However information minister Kennedy Sakeni said police were professional and well organised in the manner they treated the UPND issue.

On Sunday, police sealed off the venue of the UPND rally in Lusaka's Kanyama Compound and sent away party officials that were supposed to address it.

This was despite a High Court order asking police to allow UPND to hold a rally.
Police explained that they had not been availed the court order.

In an interview, Malila said claims that he had signed for the order, delivered by the High Court on September 7 was a 'blue lie'.

"They obtained an ex parte order, meaning they went to court without us on Friday, September 7. When they (police) called and told me about that, I said I have not been with the order service. I am therefore not in a position advise you," he said.

"The Attorney General is a party to the proceedings, so the normal thing they (UPND) would have done is to come and serve the order on the Attorney General as soon as the order was made."

Malila said UPND had failed to serve him with the order on both Friday and Saturday on time, as advised, and only served him with the same on Saturday night at around 21:00 hours after they erroneously sent the same to police.
"The following day on Saturday, somebody dropped a copy at the Zambia Police Service and the police were not party to the action," Malila said.

"They were not cited as a party and so the police obviously couldn't do anything. They said 'this belongs to the Attorney General and therefore, we are not in a position to do anything. Serve it on the Attorney General'."

Malila said it was unfair for UPND to expect him to start advising the Inspector General of Police regarding the order at 21:00 hours.

"I came to the office, worked and went away on Saturday and after I left, that is when someone from the UPND called me and said 'we are trying to find you to give you a copy of the order'. I said well, but you know where to serve, so you come to the office," he explained.

He said the UPND officials didn't meet him until he left the office.
"Then in the night around 21:30, they came to my house when I was not at home at the time. They left this court order and asked my son to sign for it," he explained.

"So now in those circumstances, what am I expected to do? Take the order and start waking up the Inspector General of Police… Come I want to advise you? When the police had already made arrangements to ensure law and order is observed?"

Malila said he however could not speak on the conduct of the police as it was beyond his jurisdiction.

"I cannot of course speak on behalf of the police on how best they should preserve law and order, they themselves know how to do it but I never advised them at all because I got the order very late in the night," said Malila.
And Banda questioned why the government always remained mute in the midst of strong public comments against growing lack of professionalism and intolerance exhibited by the police.

Banda said government should not bless and keep the senior police officers that disobeyed a court order in their blocking of the rally.

"It is public knowledge that in a bid to proceed with the rally, UPND had recourse to the High Court for Zambia and were granted an order directing that they should proceed with the planned rally. Unfortunately, the police in their acts of intolerance and in clear breach of the law elected to block the holding of this rally by UPND notwithstanding the UPND availing them the order," he said.

"One cannot help but conclude that these actions on the part of the police are undertaken with instructions of the executive. This is particularly so because, while other organisations have made strong comments on such police actions in the past, the executive has always remained mute in the face of glaring lack of professionalism exhibited by the police."

Banda said the right to freedom of assembly and freedom of association were inalienable and sacrosanct and that the same were guaranteed in the Bill of Rights as by the Constitution established.

Banda said on that basis, no person or government authority had the right to violate those constitutional rights of citizens, unless under compelling and clearly deserving circumstances.

"The position of LAZ is that the reported reasons advanced by the police that there would be no manpower to police the rally cannot, without violation of language, be considered good enough to stop a political party from holding a political rally. Strikingly, the same police who cited lack of manpower as the reason for cancellation managed to deploy officers to prevent the holding of the rally," Banda said. "The public may wish to be reminded that when a similar reason was advanced by police to deny citizens the right to hold a rally, the late Mr. Justice Peter Chitengi passed a High Court judgment which was well reasoned and which placed the law on police permits in its clear perspective."

Banda also stated that in its quest to block this planned rally, police were prepared to pour scorn on and frown in the face of a validly obtained court order giving the UPND permission to go ahead with the rally.

"LAZ wishes to give a timely reminder to the government, through the instrumentality of the Zambia Police Service, and to the citizenry in general that in a democratic dispensation such as the one Zambia ushered in, in 1991, we are all called upon to the legal duty to respect and implement decisions of the courts established to preside over the laws of our land," he said. "This is the hallmark of the rule of law and actions to the contrary are a rich recipe for unbridled anarchy, injustice and the break down in the rule of law because such actions greatly undermine the very laws which courts were established to foster and implement."

Banda pointed out that the police's acts of arbitrariness and disregards for legality in Kanyama deserved strong condemnation and LAZ called upon the executive to ensure that the institutions through which it had been elected to preside over national governance, operated in the most professional and generally acceptable standards of public expectations.

"It is our expectation that the executive will not bless the actions of the police by keeping the senior officers who disobeyed a court order and brought shame on the Zambia Police Service and indeed on the executive as a whole," Banda stated.

And the UPND says the process to seek legal redress over the police's cancellation of the rally had started.

And UPND chairperson for legal affairs Jack Mwiimbu said in an
interview from Mumbwa yesterday that their legal counsel Sakwiba Sikota was working on the papers.

Mwiimbu said the party was also not aware of any UPND cadres from Southern Province that were detained in Kafue after their buses which were believed to be heading to the Kanyama rally were impounded.

And Southern African Centre for Conflict Resolution and Disputes (SACCORD) executive director Oscar Tembo wondered why the police failed to effect an arrest on machete wielding PF cadres when they knew that it was offense to display dangerous weapons in public.

Tembo urged the police to put its house in order, saying that their conduct was unprofessional.

And Sakeni said: "Zambia Police Service is a well-organised and a disciplined security establishment, which follows the laws of the land to the letter. Thus, hate speech and isolated verbal attacks on the police command and the service in general is nothing but a worthless exercise."

He said that as a government fully supported the impartiality exhibited by police in the manner they handled the matter.

"The legal position regarding service of documents is well set out in the High Court Rules. Service of court documents is good service on the Attorney General if the document is left at the Attorney General's office," Sakeni said.
"However, although under the rules, service cannot be done on Sundays, Good Friday and Christmas day only, service of the document by leaving a copy at the office of the Attorney General on a Saturday afternoon or delivering a copy to the Attorney General's house after 21:00 hours on Saturday, is technically irregular. UPND should have endeavoured to serve the order on the Attorney General during working hours on a working day."

Sakeni said in any event, this being a judicial review, the police should have been made party to the action because they made the decision and the order was directed at staying their decision.

"On the face of it, the order does not say what the Attorney General who is the respondent should or should not do," said Sakeni.

The order stated: "IT is ordered that the application be allowed and the said applicant do have leave to apply for judicial review as aforesaid. The court further directs that all decisions, proceedings now being challenged, including the decision to cancel the rally of the 9th September, 2012, be stayed until after hearing of the motion for judicial review herein or until further order and that the said rally go ahead."

Labels: DEMONSTRATION, MUMBA MALILA, UPND

posted by MrK @ 4:42 PM