Constitutional Court Judges


THE Constitutional Court has thrown out the petition by Livingstone magistrate Benjamin Mwelwa seeking the deregistration of political parties that have not practiced democracy within their parties.

Justice Enock Mulembe in his ruling on behalf of others said the petition by magistrate Mwelwa lacks merit as it doe not disclose sufficient details of how the Attorney General and the Electoral Commission of Zambia breached the constitution by not preventing political parties that have not practiced free and fair elections within their parties from participating in elections.

He said the argument by UPND that the petition does not disclose a cause of action against the attorney general and the electoral body has merit.

Magistrate Mwelwa had petitioned the Constitutional Court, seeking an order that the Registrar of Societies deregisters any political party which came into existence following the Amendment of the Constitution on January 5, 2016 and has not promoted and practiced democracy through regular, free and fair elections within its political party.

He sought a declaration that any political party which was registered and in existence as of January 5, 2016 and which has not promoted and practised democracy through regular, free and fair elections, within its political party, has breached article 60(2)(d) of the Constitution of Zambia (Amendment) Act no. 2 of 2016 and therefore such a political party ceased to exist in Zambia on January 4, 2017.

In his petition, magistrate Mwelwa argued that despite all political parties having failed to comply with the law, they have continued to exist and also participate in elections conducted by ECZ.

“That despite all the political parties in Zambia ceas[ing] to exist as political parties, the Attorney General has failed to advise the registrar of societies to deregister them as political parties,” Mwelwa said
He stated that ECZ has conducted many elections and has allowed political parties which have ceased to exist to participate in those elections.

Magistrate Mwelwa indicated that political parties in Zambia could only remain as political parties if they complied with the Zambian constitution.

When the matter came up for hearing before justices Ann Sitali, Mulembe and Margaret Munalula, Hichilema’s lawyer Mulambo Haimbe asked the court to dismiss the matter for lack of merit as it did not disclose the provisions of the Constitution that have been breached by political parties.

He said the argument by magistrate Mwelwa that the only way a party could approach the court to seek determination of a certain matter is to adopt the procedure prescribed in Order 14 A of the white book 1999 edition, was misconceived.

Haimbe said the authorities cited by the petitioner were out of context as the procedure prescribed in Order 14A is separate and distinct in order 18 which UPND has relied upon in bringing the motion to have the petition dismissed.

He submitted that no authority cited by the petitioner ousts the jurisdiction of the court to entertain an application brought under Order 18 of the White Book.

“The application that the court should not entertain the application by the first interested party in the absence of an affidavit and supporting documents is a misapprehension of the law as Order 18 Rule 19(3) is clear that the application may be made at any stage, promptly and filed before defence is made,” Haimbe said. “The essence of Order 18 Rule 19 is to allow the applicant not to be embarrassed in his defense by allowing the application to be made prior to the filing of defence so that any irregularity is noticed prior to the filing of such defence. The premise that the application ought to have been brought under Order 14A is misconceived and should be dismissed accordingly.”

Haimbe submitted that the court was clothed with jurisdiction to determine at preliminary stage if a matter was properly before it.

He argued that the petition was anchored on an Act of Parliament rather than the Constitution and falls outside the matters that the court had jurisdiction over, under Article 128 of the Constitution.

“The petition does not disclose the provisions of the Constitution that have been breached or which the petitioner seeks interpretation of. The petition contains general allegations that lack specific constitutional provisions that are alleged to have been breached,” Haimbe said.

He argued that the petition in its entirety was anchored on an allegation that as at January 4, 2017 all political parties in Zambia ceased to exist which allegation was drawn from the petitioner’s interpretation under Order 18 of the Constitution Act no.1 of 2016.

“The reliefs sought by the petitioner are premised on erroneous allegations anchored on the Constitution of Zambia (Amendment) ACT no.1 of 2016,” Haimbe said. “The argument that political parties ceased to exist on a specific date, under Order 18 Rule 19, this action is improperly before you (ConCourt) as no reasonable cause of action is disclosed. The matter is frivolous and vexatious and abuse of the court in terms of the principles enshrined in Order 18 Rule 19 (10) of the white book.”

The state did not render its submissions as staff at the Attorney General’s chambers were being screened for COVID-19 following the cases that were recorded, while the Electoral Commission of Zambia, the Patriotic Front and the MMD adopted the submissions by the UPND.

In his response, magistrate Mwelwa said Order 4 Rule 4 of the Constitutional Court rules have to be respected by the respondents.

He said his petition was not asking the court to interpret any provision of the law but it was alleging that Article 60(2)(d) of the Constitution has been breached.

He added that the application by UPND lacks merit as it serves the purpose of wasting the court’s time and increasing the cost of the petition and urged the court to dismiss the opposition party’s application.

In reply, another lawyer for the UPND Kamwanga Phiri said Order 4 Rule 4 of the rules of the court provide for a response to the petition, yet the application before court was a motion to dismiss the petition.

He submitted that the argument of compliance to the said rules by the petitioner was misconceived and ought to be disregarded.

Phiri insisted that the petition be dismissed with costs for lack of merit.
And in its ruling, the Court said that it was not enough to allege breach of a statutory or Constitutional provision without pointing out facts in sufficient detail, which were the basis of the claim against the Attorney General the ECZ to award the petitioner the reliefs sought.

” The petition does not reveal sufficient details to warrant the existence of a cause of action against the Attorney General and ECZ or how they have allegedly breached Article 60(2)(d) of the constitution and section 18 of Act no.1 of 2016 to justify this court’s intervention,” said justice Mulembe. “We find merit in the UPND’s contention that the petition discloses no cause of action against the Attorney General and ECZ. The petition is accordingly struck out and dismissed as prayed.”


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