In our quest to witness to the Truth and repeat it to others, we have followed the case where the ECZ disqualified Ms Siliya (Petauke Central), Mr Mwale (Malambo) and Mr Sililo (Mulobezi) from re-contesting their seats when the Supreme Court nullified their election. The case took place in the Conference Room (acting as Chambers of Judge Mulenga due to space) at first floor of the High Court before a humble Judge (Mugeni Mulenga).
Judge Mulenga is such a calm and simple Judge. She was surrounded by over 20 Lawyers with only one woman Lawyer. One would think she would be intimidated by the roaring legal men battling it out to win her over, but she sat there calmly with a silent smile flashing out her authority, as if saying “I know the Truth, you can’t fool me”.
The Attorney General looked somewhat surprised to have been dragged in this legal and wanted the way out, so he filed in preliminary issues basically asking the Court to throw case away. He contended that the Court should not have entertained the trio’s case because it is a “misconception” and “abuse of court process” since they are based on the perceived lack of compliance with the provisions of section 22 and 104 of the Electoral Act. “The court is being asked to act on speculation and conjecture,” Mr Malila argued in court papers. He wondered whether the application for judicial review is not in fact premature since legal challenges in electoral matters can only be brought after an election and also given that no decision has been taken by any public body or officer to bar the applicants from filing in their nominations. “Does press statements by public relations officer of the judiciary, and the letter of the acting registrar of the High Court of Judicature and a statement by ECZ referred to in the notice containing statement in Support of an Ex parte application for leave to apply for judicial review, constitute in law a decision assailable through judicial review?” questioned the State Advocate.
Mr. Malila also want to know whether having regard to the fact that none of the applicants is specifically mentioned in the statements construed as decisions by the applicants, adding that the court had the ratione materiae to proceed further to hear the matter.
“We submit that this court has no jurisdiction to entertain an application to direct action against makers of general statements which do not specify the applicants and pray that the applicant’s application be dismissed with costs.”
The Applicants could not hit back on the Attorney Generals arguments but promised to respond by 23rd August 2013. However they were ready to tear into pieces the affidavit of our Justice Minister W. Kabimba. According to a notice sworn by W Kabimba as the S. General of the PF, the party feels it should join the matter because having petitioned several by-elections which included Petauke Central, Malambo and Mulobezi, it had expended considerable human and financial resources following their nullification.
But zealous lawyers of the trio, who seem so passionate and determined, argued that the PF had wrongly commenced its application to join the proceedings.
They submitted that any application in a judicial review matter should be commenced under section 53 of the Rules of the Supreme Court and not the High Court Act under which it had been brought by the PF.
“They are mischief makers. That is all they are after,” said one of the Lawyers. “They brought the application under the wrong law.”
They also argued that Mr. Kabimba did not have locus standii to be part of the proceedings.
“They cannot be party to this hearing because they have failed to demonstrate the effect the decision this court will have on them. They have failed to demonstrate whether they have a legal right that will be violated if they are not included in the matter,” said the lawyers.
The Lawyers submitted that Mr. Kabimba and the PF had failed to demonstrate to the court their interest in the matter, adding that in order for the applicants to be joinders they should have clearly stated on what basis they were doing that.
The lawyers also wanted to know in what capacity Mr. Kabimba wanted to be party to the proceedings when the outcome of the court action would not have any effect on the PF and its candidates.
The lawyers argued that the application by Mr. Kabimba lacked legal procedures.
Rejecting the application the lawyers asked, “A jointar for what? Which side is he on? What effect will the court action have on himself?” This application is wrongly brought before this court, he has used a wrong procedure and it is mischievous and total abuse of the court process. This should be dismissed with costs.”
The Lawyers submitted that the Patriotic Front (PF) party had developed phobia and fear that if the three parliamentary candidates contested in the forth coming by-elections they (PF) would lose.
In response the Lawyers for Mr. Kabimba insisted to the court, in a rather cold way, that the PF had expended considerable human and financial resources, “Our main argument like we have submitted in the application is that the Patriotic Front has expended considerable human and financial resources and for that we are on firm grounds at law to seek this court to give us a joinder because the outcome has an effect on the PF.”
The ECZ on the other hand did not object the Patriotic Front’s intention to join the matter. The ECZ submitted that the report of the court on corrupt practices or illegal practices had grave consequences and exposed a person thus named to criminal sanctions.
Ms. Isaacs stated that not only does such a report lead to the unseating of a member of parliament for a period of five years but that it also prohibits a person so named from registering as a voter for the same period.
After a long legal tag-of war between the two sides Judge Mulenga softly chipped-in to set August 23 as ruling date on the PF’s application to join the proceedings, and
September 4 for judgment in the judicial review application matter and the preliminary issues raised by the Attorney General.