High Court stays poll nominations
By Mwala Kalaluka and Kabanda Chulu
Tue 13 Aug. 2013, 14:01 CAT
LUSAKA High Court judge Mugeni Siwale Mulenga yesterday granted an injunction to stay today's filing of nominations for Petauke Central, Malambo and Mulobezi parliamentary by-elections.
This follows Dora Siliya, Maxwell Mwale and Hastings Sililo's application for judicial review over their being barred from recontesting the seats they lost owing to corruption or illegal practices.
This is a matter where Siliya, Mwale and Sililo, who want to re-contest the nullified Petauke Central, Malambo and Mulobezi seats respectively, have sued the Attorney General and the Electoral Commission of Zambia over their ineligibility to re-contest the polls slated for September 5.
"Upon hearing counsel for the applicants and reading the affidavit of Dora Siliya femme sole, Maxwell Moses Boma Mwale and Hastings Sililo respectively, it is hereby ordered that the applicants be and are hereby granted leave to apply for judicial review," judge Mulenga stated in her order.
"And further that the filing of nomination papers for the Petauke Central, Malambo and Mulobezi parliamentary constituencies to be held on Tuesday, the 13th of August, 2013 be and is hereby stayed."
The matter will come for inter-partes hearing on August 15 before the judge.
The trio, through its lawyers, has argued that provisions of Article 65 of the Constitution of Zambia and the provisions of sections 22 and 104 of the electoral Act No. 12 of 2006 are not applicable to them. They are seeking the court to quash the decision of the Judiciary issued by the public relations officer and the decision of the acting Registrar of the High Court contained in a letter to the director of ECZ.
The trio also wants the court to quash the decision of the director of ECZ purporting to disqualify them from filing their respective nominations.
Siliya, Mwale and Sililo are further requesting the court to issue an order of mandamus to compel ECZ to perform its statutory functions under the provisions of Article 66 of the Constitution, section 33 of the electoral Act and accept nominations from them. The trio also wants the court to issue an order of prohibition restraining ECZ from barring them from filing the nomination papers on September 13th 2013 in their respective constituencies. Siliya, Mwale and Sililo also want the court to issue an order of prohibition restraining ECZ from conducting the filing of nomination papers today.
They are also seeking a declaration that provisions of section 22 as read together or in tandem with provisions of section 104 (6) and (7) of the electoral Act require that a person mentioned in the report by the High Court should be given an opportunity of appearing before the court and show cause why that person's name should not be so stated.
"A declaration that the purported report by the High Court issued under the hand of the acting Registrar does not conform with the provisions of section 22 as read together or in tandem with provisions of section 104 (6) and (7) of the Electoral Act," they stated.
The trio is further seeking a declaration that a press statement issued by a non-judicial officer has no legal effect and judicial activism could only be evoked by an appropriately constituted court.
Siliya, Mwale and Sililo are also seeking a declaration that the purported report by the High Court issued under the hand of the acting registrar does not conform with the provisions of section 22 as read together or in tandem with the provisions of section 104 (6) and (7) of the electoral Act.
"It is therefore irregular insofar as it purports to refer to illegal and corrupt acts which purportedly occurred over one year ago contrary to the provisions of section 129(5) of the Electoral Act," they stated.
The grounds on which the trio is seeking relief include illegality, procedural impropriety and unreasonableness.
"The decision of the ECZ insofar as it purports to disqualify the trio from contesting the by-elections is illegal. The decision of the acting registrar of the High Court purporting to issue a report is illegal. The decision of the Judiciary published in the media in so far as it purports to bar the trio is illegal and void," they stated.
They stated that particulars of non-compliance with the provisions of section 22 of the electoral Act were evidenced in the failure to give adequate opportunity to Siliya, Mwale and Sililo to be heard prior to the purported report of the High Court.
"There was failure to comply with mandatory provisions of section 104 (6) (7) and (8) of the Electoral Act whereby the High Court shall at the conclusion of the proceedings, prepare a report," they stated.
"Failure to state the name and particulars of any person by whom the corrupt practice or illegal practice was, in the opinion of the court committed as stipulated in section 104."
They stated that decision of the ECZ stating that it will not receive nomination papers from aspiring candidates affected by the nullifications by the Supreme Court was illegal. The ECZ postponed the filing of nominations for three of the four parliamentary by-elections which were initially slated for September 5 to today.
The ECZ's action was in the wake of the Judiciary's statement that candidates whose election was nullified on account of electoral malpractices were not eligible to re-contest their seats.
Labels: BY-ELECTIONS, HIGH COURT, MUGENI SIWALE MULENGA
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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
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Increase in number of female High Court judges deliberate – Rupiah
By Chibaula Silwamba
Sat 11 Sep. 2010, 04:00 CAT
President Rupiah Banda with the newly sworn in High Court Judges at State House
RESIDENT Rupiah Banda yesterday said the judiciary and government made a deliberate move to increase the number of female High Court Judges.
Speaking when he swore in three female and two male judges for the High Court at State House in Lusaka, President Banda said the appointment of five female judges out of the nine sworn in on Thursday and yesterday was not by coincidence.
“This is a deliberate move both by the judiciary and the government to ensure that participation of qualified women is taking place in our country continuously,” said President Banda. “May I be allowed to just wish you all the best and God’s guidance as you perform very important tasks.”
Among those sworn in yesterday were Flavia Chishimba, Mugeni Siwale Mulenga, Petronella Chama Ngulube, Isaac Kamwendo and Justine Chashi.
On Thursday, the President swore in two female High Court judges Gaundential Milimo Salasini and Anessie Banda-Bobo, who is former registrar of the Patents and Companies Registration Office (PACRO).
President Banda also swore in Supreme Court judges Muyinda Wanki and Gregory Phiri.
Labels: HIGH COURT, JUDICIARY, RUPIAH BANDA
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