ABOUT WEAPONISING THE JUDICIARY:

THE world over, an independent, objective and competent judiciary has a major role to play in not only promoting peace and unity but also in fostering economic development.

When people quarrel in the community, they need to be assured that if they take their quarrels to authorities, they will get justice.

Without such assurance about the independence, objectivity and competence of the judicial system, people will not waste their time taking their conflicts to the authorities for resolution.

Instead, societal conflicts will be resolved using underhand methods of revenge, ostensibly using violence. That will take us back to the pre-civilisation times when violence, murder and mayhem was the standard way of resolving societal conflicts.

That said, the behaviour of our senior courts in the handling of the Kabushi and Kwacha petitions leaves much to be desired. Three courts were involved in these petitions - the High Court, Court of Appeal and the Constitutional Court.

The first to take a bite at the apple was the High Court, which nullified the two elections. As per provisions in the constitution, the High Court is the court of first instance for election related matters, and any appeal has to go straight to the Constitutional Court, not the Court of Appeal nor the Supreme Court.

So subsequent to the nullification of their seats by the High Court, Bowman Lusambo and Joseph Malanji went to appeal at the Constitutional Court.

The Constitutional Court decided to uphold the judgement of the High Court, which is fine. Nothing wrong with that. However, in upholding the nullification of the two seats, the Constitutional Court failed to clearly state in its judgement whether Lusambo and Malanji were eligible to stand in the by-elections which had been caused by a nullification of their seats. That was problem number one.

At this juncture, allow me to state that judgements of the Constitutional Court are traditionally vague and either lack clarity or create additional debate and confusion. Whenever the Constitutional Court issues a judgement, litigants are often left wondering who has won the case!

Time and again, this has resulted in additional litigation as was the case with former President Edgar Lungu's eligibility matter. The Constitutional Court has often failed to bring matters before it to a finality, despite being a court of final instance.

Why this court behaves in this manner has always been a wonder to me. But l am inclined to believe the submissions of Counsel John Sangwa which he made at the very inception of the Constitutional Court, that the judges of this court lack the necessary qualifications and experience.

Indeed, there appears to be very little competence at Constitutional Court level and it is only by the grace of God that they have not plunged this country into a constitutional crisis.

Anyway, back to the issue at hand. So in upholding the nullification of the two seats, the Constitutional Court omitted to state in their judgement whether Lusambo and Malanji were eligible to stand in the upcoming by-elections. This prompted another lawsuit by the two, before the same ConCourt. In the second matter, the Constitutional Court ruled that nullification does not amount to disqualification, meaning that the fact that their seats were nullified does not mean that the two are disqualified to stand in the upcoming by-elections.

In a properly functioning democracy, this second pronouncement by the Constitutional Court would have put this matter to bed once and for all. But not under the current regime. A few days later, the Electoral Commission of Zambia (ECZ) issued a statement that it will not accept nominations from individuals whose seats were nullified in Kabushi and Kwacha constituencies.

This statement by ECZ was contrary to the second judgement of the Constitutional Court which made it clear that nullification of the two seats did not mean that Lusambo and Malanji were disqualified from re-contesting.

As a result of the ECZ statement, Lusambo and Malanji approached the High Court and commenced judicial review proceedings against the ECZ for their decision to ignore the judgement of the Constitutional Court and try to exclude them from filing in their nominations.

As the matter before the High Court was being allocated, ECZ proceeded to conduct the nomination process for both Kabushi and Kwacha, and true to their word, they refused to accept nominations from Lusambo and Malanji.

A few days after the nominations, the High Court, after constituting a panel of three judges, granted the applicants leave to commence judicial review proceedings against ECZ, which also acted as a stay of the elections.

In other words, the elections could not take place until this matter was concluded.

A few days later, the government through the Attorney General applied and was joined to this matter as a Respondent. Immediately thereafter, the Attorney General approached the Court of Appeal and obtained a stay of all proceedings in the High Court.

This was despite the constitutional requirement that only two courts will deal with election related disputes; the High Court and the Constitutional Court.