Con Court fails to interpret Constitution, legal analyst

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Civil rights activist Brebner Changala has charged that the apprenticeship of Constitutional Court judges in interpreting the Constitution is a disservice to the judicial system.

He said it was disgraceful that jury cannot interpret the dictates of the supreme law six years after the court was set up, as their decisions are always ambiguous.

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On September 7, 2022 the Constitutional Court directed that a member of parliament whose election has been nullified is not prevented by Article 72(4) of the Constitution from recontesing an election.

Judge Palan Mulonda on behalf of Mungeni Mulenga, Matthew Chisunka and Judy Mulongoti said that there is a lacuna in Article 72(2) with respect to a vacancy occurring in parliament when a member of parliament’s election is nullified by the High Court and where there is no appeal and a nullification by the Constitutional Court where there is an appeal.

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However, the Court vice-president Margaret Munalula in her dissenting judgment said the lacuna in Article 72(h) does not warrant the court to do nothing about giving clarity on the matter or providing an interpretation declaring clause (4) redundant.

She said the Con Court had an opportunity to bring the matter to its conclusion by stating whether Joseph Malanji and Bowman Lusambo were disqualified in recontesting election in the current life of parliament as opposed to issuing a vague judgment.

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This is in a matter where Malanji and Lusambo commenced a law suit against the State and the Electoral Commission of Zambia asking the court to clarify what is meant by causing a vacancy in the National Assembly as stated in Article 72 of the Constitution.

Commenting on that ruling, Changala was dismayed that the Con Court was failing to perform its functions to explain the Constitution and cause parties to a suit to celebrate a hoax.

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“It’s close to six years since the Constitutional Court was set up and all judgments from the Constitutional Court they lack clarity. Every judgment that is churned out from the Constitutional Court is a recipe for confusion,” he said. “The Constitutional Court in Zambia is the only court that makes both the applicant and respondent come out celebrating a victory. The applicant and the defendant come out celebrating the victory because their (Con Court) judgments lack clarity and conclusive declarations.”

Changala said the decision of the majority in Malanji and Lusambo’s case is a drawback as it does bring an end to litigation.

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“Now we are back to square one in the case of Malanji and Bowman Lusambo. The ConCourt says they do qualify and they are eligible to be candidates in their respective constituencies of Kabushi and Kwacha.

“Now the Constitutional Court doesn’t order fresh nominations neither does it go further to allow the ECZ to take the documentation of these two gentlemen as validly submitted,” he noted. “We shall see all parties if not one party going back to the Constitutional Court seeking a declaration which should have been carried out through this judgment.”

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Changala said State Counsel John Sangwa has been vindicated when he warned that the Constitutional Court jury was inefficient.

“One would agree with counsel Sangwa from the inception that the Constitutional Court judges that were appointed by the Edgar Lungu administration were not qualified for various reasons.

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“They did not meet the constitutional requirement and what we have been seeing is apprenticeship. On-the-job training and this training has been highly costly to our judicial system in this country. And we can’t go on this route forever,” he said. “The best way we can do, we need the consensus in terms of commission of inquiry on the continuity of the office bearers in the Constitutional Court.”

Changala proposed that the bench be co-chaired by the Chief Justice as it was unacceptable to have two parallel authorities under one umbrella.

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He said the ConCourt cannot shift its duties to the citizenry to interpret constitutional matters but should instead be clear in its judgments.

“The Constitutional Court must have the Chief Justice as the president of the Constitutional Court as well as the Chief Justice of the Supreme Court as well as the entire judicial system.

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“The confusion that comes out of these judgments do not serve justice but add more to the injustice the country has experienced over the years,” said Changala.

“The Constitutional Court must learn to conclusively, with full clarity, churn out judgments that are acceptable to all parties not that all parties must celebrate victory.

“Here we are Bowman Lusambo and his followers are celebrating, the UPND on the other side are celebrating because there will be no fresh nominations according to the interpretation because the court has not ordered so. So we need clarification and it is urgent. More urgent if we have to save our young democracy,” he said. Zambian Observer

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