UPND lead lawyer SC John Sangwa response to application

in all the arguments of the respondents there are two fundamental issues:

“my lord there two articles that talks about the jurisdiction of the constitutional court.
1. article 134 and article 28 of the constitution of zambia.”
these two provisions deal with two separate scenarios “.

“the high court has original and unlimited jurisdiction in criminal and civil matters ” this is general.”

when dealing with civil matters at the high court we really on original jurisdiction ” .

the procedure is provided for in the criminal procedural code (CPC).jurisdiction of high court comes from article 134.this article replaced article 94 of the constitution prior to 2016.”

“suits are covered under this provision. but this matter is not a suit. it is not a civil matter but we have moved this court under article 28.this is not a matter of authority vested in this court.”

“the court will recall the case of patel vs attorney general a 1968 case.”zambia law report.”page 99.

“the matter was a procedural issue on how to move the court when it was discovered there were no rules.”

under article 28 the rules are specific when you are moving the court to protect your right under article 28

“what do the petitioners need to do… is to allege or breach of the fundamental rights”.

article 28 may i read my lord says if any person alleges that his rights have been violated or about to or will be violated are free to seek redress at the constitutional court “…is enough for me to move the court …the law is very simple we are just trying to complicate things.”what our colleagues are advancing is unconstitutional.

They have not referred the court to article 98(3),provisions of article 18 must be read in their totality.

“my lord what has also been ignored are the powers of this court under article 18.

“the petitioners are here to secure the enforcement of article 18(9)and there is no immunity to this”

according to that constitutional court they said provisions under article 128 are civil proceedings it had nothing to do with article 28.

the case referred toby the attorney general is totally irrelevant to this proceedings

” state counsel sangwa argued that the contention of the petitioners or upnd is that given all the facts outlined d in the petition, thy say their right to a fair hearing within a reasonable time before an independent and impartial judge established by law has been violated by the respondents acting together.”

article 266 defines what a state organ is.it says state organ as legislature ,executive and judiciary.”

“we have explained in our petition the reason for the 6 the and the 5 the respondents inclusion.” if we misjoin the respondents then this will be unattainable.”
“the respondents argument to remove some respondents will threaten the whole purpose of protecting article 18 (9)of the constitution
“my lord our answer is in the negative ” the petition shows that it is on the strength of the constitutional court that the 1st and 2nd respondents were sworn .” will it be in accord with the constitution for this court to decide this matter in the absence of the 1st and the 2 nd respondents?the answer is no!

“my lord the outcome of this matter will affect the respondents “.just to give an example,should this court hold that the judgement of the constitutional court of 5 the september violated article 18….therefore null and void .it also follows that everything that followed was a nullity.

the swearing in of the president and vice president will be a nullity including the swearing in of the president and his vice president.

“if the court does not hear the matter,the court will be violating article 18(9) vi’s a vi’s the petitioners.”

hence a decision of this court against the respondents in their absence can not be said to be fair when it concerns article 18(9)

state counsel sangwa further argued that if we remain with the attorney general how will the outcome of this court be affected by this outcome?and the ho will be affected?non but it will affect the rest of the respondents.

there is this notion that the first respondent enjoys immunity.that concept is untrainable when the proceedings are founded under article 28

“article 98has been misread….article 98 is dealing with civil proceedings against the president “.my lord i had an opportunity to deal with a presidential matter on article 98.”
” i read article 98 says if a president commits a civil wrong he can not be sued.”

“for example if one is president and he bushes another vehicle he is not performing the functions of the president.” this article does not apply to the matter at hand .”

article 98 relates to civil suits and that does not cover provisions under article 28 which is why we are in this court.

if we go by our PF lawyers thinking it means the only time we can prosecute and apply article 18 in the presence of president edgar lungu and inonge wins will be after 2021 and assuming he rules for 7 years…. there lies the absurdity of the matter.

my lord if the makers of the constitution wanted they could have included article 28 in article 98 for that argument to be sound
Ate continues

“article 98has been misread….article 98 is dealing with civil proceedings against the president “.my lord i had an opportunity to deal with a presidential matter on article 98.”
” i read article 98 says if a president commits a civil wrong he can not be sued.”

“for example if one is president and he bushes another vehicle he is not performing the functions of the president.” this article does not apply to the matter at hand .”

article 98 relates to civil suits and that does not cover provisions under article 28 which is why we are in this court.

If we go by our PF lawyers thinking it means the only time we can prosecute and apply article 18 in the presence of president edgar lungu and inonge wins will be after 2021 and assuming he rules for 7 years…. there lies the absurdity of the matter.

My lord if the makers of the constitution wanted they could have included article 28 in article 98 for that argument to be sound

it means the immunity mentioned under article 98 could have included article 28.my lord proceedings under article 28 have never been classified as civil.

Our argument is secure the enforcement of the bill of right and no one is immune.

The decision at constitutional court was under one judge and the case had nothing to do with matters under article 28 because that court has no jurisdiction over the bill of rights.
The suggestion that that decision of that court has no foundation at all it is not even of pursuasive value

This high court is exercising the jurisdiction that is not vested in the constitutional court.the correct position is that it only the decision of the supreme court which can overturn the decision by the high court over the bill of rights

“This is because article 1(3) this constitution shall bind all persons including all organs including the judiciary meaning the constitution applies both vertically and horizontally or governs relationships between the state and individuals or against the state.in short no one is exempt from complying with the constitution.even individuals are not exempt.

Our argument is that the constitutional court violated art 18(9) in relation to the petition by failing to give reasonable time to the petitioners.

My lord it not right for our friends that we are advocating to sue judges. this is not a suit against a single judge , there is no name of a single judge .the proceedings that are before this court against the constitutional court as organ of state .”

May i confirm that in this matter each one of my colleagues have filed in the answer.

Sangwa ends his response and sits down

AG kalaluka stands and says:

UPND lawyer feels that the constitutional court did not conform to the provisions of the constitution.meaning the proceedings will be brought within the brackets of conformity or. on conformity had been described as fall under civil proceedings.”

Our authority is that these proceedings are civil proceedings in he sense in which the constitutional court mentioned.

The learned counsel has not cited any single authority which states that authorities under article 28 are not civil.

My lord the learned state counsel has made another assertion that article 98 immunity does not apply to article 28 proceedings.

Again this is a. road assertion without an authority.

The learned counsel again made an assertion that order 14 does not apply proceedings such as this one under article 28.

While the learned counsel has alluded to the statutory instrument of 1969,he has again neglected to inform this court which rule in the 1969 says that order 14 of the high court rules does not apply proceedings under article 28.

My lord in opposing my assertion that the constitutional court is not a legal person capable of being sued, the petitioners merely relied on article 1(3) of the constitution which says that all government organs are bound by the constitution.The petitioners did not provide any authority why a non legal person should be sued.

My lord we all know that all institutions are bound by the constitution. so let them sue the attorney general.

NOT THAT THIS IS WHAT PF want to make the case an academic exercise by not wanting to hear the matters brought before the court. This is the biggest assault on the judiciary by denying citizens the right to be heard under the disguise of misinterpreting the law.

Upnd lawyer sangwa rose in point of order when AG mischaracterised senior counsel Sangwa’s argument and says that the constitutional court jurisdiction to interpret the constitution has no jurisdiction over the bill of rights.

AG went outside the debate by assuming that the upnd lawyer said the constitutional court has no jurisdiction over the whole constitution.

PF lawyers have been grilled over what seems to be a calculated suffocating of the judiciary.

Senior counsel Mweemba rose up to the argument and submitted that the AG is raising another debate on which is more superior between the constitutional court and the high court. meanwhile the high court also has original jurisdiction overall matters including human rights.

Now AG has started citing same case of an erroneous judgement by the constitutional court which upnd intends to challenge of HH and GBM vs Edgar Lungu and others.

He has further gone to repeat article 98 on immunity of the president.

but upnd had argued that there can be no immunity as regard to the bill of rights and that we can not wait to bring EdgarLungu and wina…. before the court when rights are being abused.

Note that PF wants Edgar, Wina- to be represented by attorney general but the upnd lawyers have no problem with attorney general representing them what matters is the matter to be heard.

AG continues in repeat mode a clear indication that his argument is conditioned.

And now argued that the chief justice and her deputy will not be affected in any way and therefore they should be removed from the list of respondents.

he says that their prayer is that the application to remove the said respondents be granted and he sits.

Note that the matter will and must be heard and they won’t escape this one as it boarders on human rights.

ECZ counsel Shonga stands up and wonders why upnd still wants Edgar Lungu and Wina to be part of the proceedings.

He claims the absence of Edgar Lunda,Inonge wina, chief justice, deputy chief justice,ECZ , constitutional court will not affect the outcome.

he is being hypocritical in that the issue of rights binds all, it is a humanitarian issue.

he says ” we are not challenging as to whether they should not be heard over their right to be heard but as whether or not the respondents have been properly drawn into these proceedings.”

ECZ counsel Shonga stands up and wonders why upnd still wants Edgar Lungu and Wina to be part of the proceedings.

He claims the absence of Edgar Lunda,Inonge wina, chief justice, deputy chief justice,ECZ , constitutional court will not affect the outcome.

Earlier Sangwa said the issue of rights binds all, it is a humanitarian issue.

Shonga says ” we are not challenging as to whether they should not be heard over their right to be heard but as whether or not the respondents have been properly drawn into these proceedings.”

Ruling to be delivered on on 29th November 2016 at 14hrs
Court adjourned

UPND MEDIA TEAM

15179133_1244875932261226_1269902451361287240_n

7 COMMENTS

  1. Just wondering why PF team is still trying to avoid the petition and trying to remove lungu, wina and ECZ from the list of respondents when the main petition was actually submitted against them. If PF team are clean in this, why are they trying to avoid it? They don’t show any confidence of defending themselves in the petition instead they have continued with their avoid and delay tactics. If this petition gets in the hands of ICJ, they will be in trouble.

LEAVE A REPLY

Please enter your comment!
Please enter your name here