Hakainde Hichilema and Anor v Edgar Chagwa Lungu and Ors (2016/CC/0031) [2016] ZMCC 9 (5 September 2016)

IN THE CONSTITUTIONAL AT THE CONSTITUTIONAL HOLDEN AT LUSAKA (CONSTITUTIONAL JURISDICTION) COURT OF ZAMBIA 2016/CC/0031 REGISTRY RULING NO. 33 OF 2016 (1203) BETWEEN: IN THE MATTER OF: O 5 S& 2016 AND IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER OF: THE PRESIDENTIAL PETITION FOR THE PRESIDENTIAL ELCTIONS HELD ON 11TH AUGUST, 2016 ELECTION OF THE CONSTITUTION ZAMBIA, THE CONSTITUTION OF ZAMBIA ACT, CHAPTER 1, VOLUME 1 OF THE LAWS OF ZAMBIA 1, 2, 5, 8, 9, 45, 47, ARTICLES 48,49,50, 54,60,90,91, AND 93 OF CONSTITUTION ZAMBIA, THE CONSTITUTION OF ZAMBIA ACT, VOLUME 1 OF THE LAWS OF ZAMBIA CHAPTER 1, OF 101, 102, 103, 104, ARTICLES 118,229 AND 267 OF THE CONSTITUTION THE CONSTITUTION OF ZAMBIA ACT, CHAPTER 1, VOLUME·l OF THE LAWS OF ZAMBIA OF ZAMBIA, AND IN THE MATTER OF: 128(1) (C) OF THE ARTICLES CONSTITUTION OF ZAMBIA 1, VOLUME 1 ACT, CHAPTER OFTHELAWSOFZAMBIA Rl AND IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER OF: AND AND IN THE MATTER OF: (1204J AND (DJ OF SECTION 8 (lJ (CJ THE CONSTITUTION ZAMBIA, THE CONSTITUTION OF ZAMBIA ACT, CHAPTER 1, VOLUME 1 OF THE LAWS OF ZAMBIA OF ORDER XIV OF THE CONSTITUTIONAL RULES ACT NO. 8 OF 2016 OF 2016 OF THE LAWS OF ZAMBIA COURT SECTIONS 29, 37, 38, 51, 52, 58,59,60,66,68, 69,70,71, 72,73,74, 75,76,77,81,82, 83, 84, 86, 87, 89 AND 91 OF ELECTORAL 35 OF 2016 OF 2016 OF THE LAWS OF ZAMBIA PROCESS ACT NO. SECTIONS 110 OF ELECTORAL PROCESS ACT (ELECTORAL CODE OF CONDUCT NO. 35 OF 2016 OF 2016 OF THE LAWS OF ZAMBIA SECTIONS 110 OF THE ELECTRONIC COMMUNICATIONS COMMUNICATIONS OF 2009 OF THE LAWS OF ZAMBIA AND ACT •NO. 21 BETWEEN: HAKAINDE HICHILEMA GEOFFREY BWALYA MWAMBA 1ST PETITIONER 2ND PETITIONER R2 AND (1205) EDGAR CHAGWA LUNGU INONGE WINA ELECTORAL COMMISSION ATTORNEY-GENERAL OF ZAMBIA IST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4™ RESPONDENT CORAM: Chibornba, PC, Sitali, On 2nd September, JJC. Mulenga, Mulonda and Munalula, 2016 and on 5th September, 2016 For the Petitioners: In Person For the 1 •t and 2nd Respondent: Mr. B. C. Mutale, SC of Ellis and Company Mr. E. S. Silwamba, Lisimba and Jalasi SC of Silwamba, Prof. P. Mvunga of Mvunga Associates Mr. S. Sikota of Central Chambers Mr. N. Mubonda of D. H. Kemp and Company Mrs. Suba of Suba Tafeni and Associates Mr. N. Simwanza of Noel Legal Practitioners Mr. T. Ngulube of Nanguzyambo Company and For the 3rd Respondent: Mr. A. Shonga, SC and Mr. S. Lungu of Shamwana and Company th For the 4 Respondent: Mr. L. Kalaluka, SC Attorney-General Mr. A. Mwansa, SC Solicitor-General R3 (1206) Mr. M. Lukwasa, Advocate Deputy Chief State Mr. F. K. Mwale, Senior State Advocate Ms M. Kalimamukwento, State Advocate Assistant Senior RULIN G SITALI, JC, delivered the Ruling of the Court. Case referred to: 1. Raila Odinga and and Electoral Boundaries Commission and 3 Others Petition No. 5 of 5 Others v Independent Legislation referred to: 1. The Constitution of Zambia, Chapter 1 of the Laws of Zambia, Articles 101 (5), 103 (2), 104 and 269 (a) and (d). 2. The Constitutional of 2016, Order XV rule 7. Court Rules, Statutory Instrument No. 37 On Friday, 2nd September, 2016, the Court adjourned the proceedings herein to today 5th September, 2016, for hearing following the Petitioners' advocates' decision to withdraw from representing the Petitioners. The reason advanced by the Court for the adjournment was to give the Petitioners time to engage legal practitioners to represent them. However, prior to the R4 adjournment, the learned Attorney-General submitted that in terms (1207) of Article 101 (5) of the Constitution, the time limited for the hearing of the Petition was fourteen (14) days from the date of the filing of the Petition. He further submitted that once the fourteen (14) days had expired, this Court would not have jurisdiction to hear the Petition and that any further proceedings that would be entertained by this Court would be a nullity. We did not address that submission prior to adjourning the matter to today for hearing. It is trite that whenever the jurisdiction of the Court, to hear a matter is raised, that issue must be addressed and determined before the hearing of that matter can proceed. This is because if a Court proceeds to hear a matter without jurisdiction, the resulting trial or hearing would be a nullity. Thus, it is imperative, in the present case, for this Court to address the objection raised by the Attorney- General on behalf of the 4th Respondent and by State Counsel for the 1st, 2nd and 3rd Respondents in the course of the sitting on Friday, 2nd September, 2016. Mr. Shonga, SC, went as far as to state that when dealing with an election petition, the Court exercises a special jurisdiction, which is limited to the Constitutional provisions and any electoral laws and rules of Court relating to the petition. State Counsel at that point submitted that when exercising that special jurisdiction the Court is placed in a straight jacket. He stated that as the RS (1208) proceedings relating to an election petition are sui generis, this Court does not have the discretion mandate to or the constitutional enlarge the time in which the petition must be heard. The Constitution in both Articles 101 (5) and 103 (2) provides that a petition under the said articles shall (14) be heard within fourteen days from the filing of the petition. The question to be determined, therefore, is whether this Court has jurisdiction to hear the election Petition herein after the expiry of the fourteen days limited for the hearing of the Petition. In order to answer the question, we have considered the provisions of Article 101 (5) of the Constitution which states that: "(SJ The Constitutional Court shall hear an election petition filed in accordance days with clause (4) within fourteen of the filing of the petition. " The provision set out above is clear and unambiguous. It is couched in mandatory terms thus giving the Court no discretion to enlarge the time for hearing the Petition. In interpreting the provisions of Article 101 (5) of the Constitution, the words used by the legislature should be given their ordinary meaning and only if results the ordinary meaning in an absurd meaning should the purposive interpretation be resorted to. In the present case, no absurdity results from the interpretation in its of the provision ordinary sense. R6 Having said that, Article 269 (a) and (di of the Constitution, which (1209) relate to the computation of time, provide that: "(a) a period of days from the happening of an event or the doing of an act shall be considered of the to be exclusive day on which the event happens or the act is done: {d) where an act or a proceeding is directed or allowed to be done or taken within a time not exceeding six days, an excluded day shall not be counted in the computation of time." In the present case, the presidential election petition was filed on 19th August, 2016, within the seven (7) days prescribed period. Article 269 (a), on the computation of time, provides that the time begins to run on the day following the doing of an action and in this case the 14 days began to run on 20th August, 2016. The fourteen days lapsed on 2nd September, 2016. Article 1 (1) of the Constitution provides that the Constitution is the supreme _ law of the lap.d and Article 1 (3) provides that the Constitution is binding on all persons in Zambia including State organs and institutions. Therefore, where the time for hearing the petition is limited by the Constitution, the Court is bound to enforce the time limit. This means that if this petition were to be heard outside the fourteen days' period, the proceedings will be a nullity. R7 There is, therefore, no benefit to any party in breaching the constitutional provision of fourteen days period for hearing the petition, apart from wastage of money and other resources. (1210) The purposive approach to the interpretation of the Constitution does not assist in this case as the time frame for the hearing of the petition is stated in mandatory terms and Order XV rule 7 of the Constitutional Court Rules, Statutory Instrument No. 37 of 2016 states that this Court has no jurisdiction to change the time frame specified in the Constitution. This Court's hands are, therefore, ti@d in terms of enlarging time. In view of the fact that the Court has no power to enlarge 2nd September, 2016, that they would be given two days each to time, the order we gave to the parties, on present their case outside the prescribed period is not tenable. The parties, including the Petitioners, who were ably represented by advocates from as many as ten law firms, who included State Counsel, were well aware of this strict provision on the time frame. We say so because shortly after the filing of the Petition, the Petitioners' lawyers were called to appear before the single . Judge of . the Court who was allocated the matter to issue directions for trial, being 1nyself. The Judge at that early stage, directed the Petitioners' advocates to immediately serve the Respondents and file an affidavit of service to that effect. The direction was given as according to the rules of the Court, the Respondents have five days RS within which to file their answer after the date the petition is served (1211) Petitioners' on them. The l•t and 2nd Respondents four days after they had filed the petition. on Tuesday, advocates only served the petition on the 23rd August, 2016, which was The 3rd Respondent was served on 19th August, 2016, being the date on which the Petition was filed. The single Judge subsequently issued directions in the matter on 24th August, 2016, which directions are on record. The directions initially given to the parties petition would commence on 2nd September, were that the hearing 2016, and end on 8th of the September, 2016. After representations were made, the Judge informed the parties on 1st September, 2016, in the morning, that the status was that the 211d September, meantime, hearing would commence and conclude on 2016, being the last day of hearing. In the the Petitioners filed a number of interlocutory applications. This Court was ready to hear the petition within the prescribed fourteen (14) days but the Petitioners instead chose to concentrate on interlocutory applications at the expense of ensuring that the petition was heard within the prescribed time. This was their right . . to do and so they only have themselves to blame when time ran out on them. Even equity cannot assist the Petitioners because equity does not assist the indolent. R9 It was apparent that the Petitioners were not ready to prosecute (1212) their petition because even when this Court proposed to begin hearing them on 1st September, 2016, so as to increase the time of hearing the matter, their advocates, after getting instructions, refused to accept this direction citing the need to file bundles of documents. It is worth noting that the witness which statements were filed by the Petitioners together on 19th with the petition August, 2016, reveal that most of the witnesses whom the Petitioners intended to call are based in Lusaka and could be called at short notice. This is why the Court directed that the hearing of the matter could commence on Thursday, 1st September, 2016, at 14.00 hours. When the matter came up for hearing 08.00 hours, the Court informed the parties on 2°d September, 2016, at that the hearing of the petition would conclude at 23.45 hours and that each side would be allocated six and half hours to present their cases. However, the Petitioners' advocates opted to make several preliminary applications, which consumed a lot of time, as the final application was only determined after 19.00 hours leaving only four (4) hours to the time stated . . for the conclusion of the hearing. Each side, therefore, had two hours left within which to present their cases. At this point, all sought the Court's all the Petitioners' lawyers leave to withdraw from representing citing the Petitioners the fact that RlO the two hours they had remaining (1213) to present the case, were inadequate for them to ably represent the Petitioners, which leave was granted. Thus, the Petitioners cannot now be heard to complain that they were only given two hours to present and prove their case when they deliberately chose to squander the many hours that were allocated to them. From the conduct of the Petitioners' advocates throughout the day, on 2nd September, 2016, in making the several preliminary applications in the presence who were of the Petitioners present in Court, it is evident that the Petitioners had no intention of putting any witness on the stand on that day. The only inference that can be drawn from that conduct is that the Petitioners' advocates intended to force the Court to extend the hearing of the petition beyond the time limited for the hearing of the petition by the Constitution. This conclusion is supported by the advocates' decision to withdraw from representing the Petitioners just a few hours before the time set by the Court for the of the conclusion hearing. When the matter came up for hearing on 2nd September, 2016, the Court emphasized to the parties that the fourteen (14) day period was rigid and the hearing had to be concluded by 23.45 hours and the hours were shared equally between the Petitioners on one hand and the Respondents on the other hand. Upon being asked to Rll proceed with their case, the Petitioners' Counsel began to raise motion upon motion for determination. They raised a total of six (6) (1214) applications while the Respondents raised one. These applications were finally disposed off at around 19.30 hours. We must state that the behavior of some of the Counsel for the Petitioners was unbecoming of the noble profession and some went to the extent of alleging bias on the part of the Court and the single Judge in particular, who was the face of the Court at the scheduling stage, as the reason for their applications being dismissed. We condemn this conduct in the strongest terms and in particular that of Ms Martha Mushipe and enjoin the Law Association of Zambia to take appropriate disciplinary action against her. It was further unacceptable for learned lawyers representing the Petitioners to state that the single Judge of the Court made unilateral decisions with regard to the setting down of the matter for hearing and thereby misled the Petitioners into alleging against the single the single judge. The judge was mandated said advocates . in accordance . which states that Constitutional Court shall be 129 (2) . of . the Constitution bias were fully aware that with Article constituted by a single judge when hearing an interlocutory matter. Further, they are well aware that the scheduling of the matter for hearing is the responsibility of a single Judge of the Court. We, therefore, disapprove of their unprofessional conduct in that regard. R12 After that spectacle which their advocates put up dressing down the (1215) Court in the presence of a packed Court room, the Petitioners, when called upon to address the Court in person, lamented that the remaining time was insufficient to present their case and also alleged bias on the part of the Court as the reason for dismissing their applications and singled out the single Judge of the Court. We must state here that this Court places no blame on the Petitioners who are lay persons because they can only respond to what their advocates tell them. And as we have said, in this particular case, learned advocates of very senior standing at the Bar chose to mislead the Petitioners into thinking that any directions that were being issued by the single Judge a result of the Court were as of the Court's bias. It is common knowledge that the single Judge of the Court is merely the face of the Court and as can be understood, there was no way the single Judge was going to set down the matter for trial without other members of this bench being in agreement. That said when the Petitioners requested the Court to give them about an hour to consult, that request was granted. The Petitioners later requested for time to engage Counsel. This application was granted at around 23.55 hours and the matter was then adjourned to today 5th September, 2016. As we have said in this case, the period for hearing the petition is prescribed by the Constitution itself. The time frame is rigid and R13 I. (1216) thus this Court has not been given discretion to enlarge time. This is for good reason, that is, to avoid prolonged uncertainty concerning the office of President, which is the highest office in this Country through a prolonged delay in swearing in of the President­ elect. Thus, the rigid timeframe for the hearing of presidential election petitions was deliberately enacted by the law makers because, from the provisions of Article 104, a President -elect cannot assume office once the validity of their election is challenged. Thus, it was imperative for the Constitutional Court to determine the petition expeditiously so as to avert the anxiety and anticipation in the country as a prolonged hearing would not serve the public interest. The Court should quickly determine the petition so that depending on the outcome of the hearing, can be fresh elections held within thirty-seven (37) days of the initial date in election terms of Article 101 or within thirty (30) days of nullification of the election under Article 103. If the election of the President-elect or the presidential candidate is declared valid by the Court, the President- elect can then be sworn into office. Similar views were expressed by the Supreme Court of Kenya in the case of Raila Odinqa and 5 Others v Independent Electoral and Boundaries Commission and 3 Others Petition No. 5 of 2013. The provisions of the Kenyan Constitution, regarding the period within which a presidential election petition may be heard, are similar to Rl4 (1217) the provisions of Article 101 (5) and 103 (2) although they are not in exact terms. It is noted that in the past, there was no time limit set for the determination of presidential election petitions and this resulted in some petitions taking several years to be determined. This was, however, against the background that the Presidential candidate, who was declared winner, was immediately sworn in and was fully in office so that there was no gap in the executive arm, as Government began to function while the election petition was being heard and determined. This is the situation that the people of Zambia decided to change through the enactment of the current provisions in the Constitution requiring that the petition be disposed of before the swearing in of the President-elect. Hence, the need for the time frames to be strictly followed. As Articles 101 (5) and 103 (2) of the Constitution limit the period within which a presidential election petition must be heard by this Court to fourteen days after the filing of the election petition, the Court cannot competently hear a petition outside this period. The last issue to be considered is the status of the Petition after the time limited for its hearing expired on Friday 2nd September, 2016. It should be noted that the Petitioners needed to present evidence in support of their allegations against the Respondents which they RlS • failed to do. In the absence of the evidence to support the (1218) allegations, the Court could not make any findings of fact or make a determination 1n accordance with Article 101 (6) of the Constitution. 1st September, As rightly held by the single Judge in her Ruling of 2016, election petitions proceedings are sui generis and have to be determined within the statutqry prescribed period. Our position, therefore, is that the Petition stood dismissed for want of prosecution when the time limited for its hearing lapsed and, therefore, failed by reason of that technicality. This is because the failed Petitioners to prosecution their case within fourteen days of its being filed. That being the case, there is no petition to be heard before this Court as at today. A. M. SITALI, CONSTITUTIONAL COURT JUDGE ···.•············································ <t) �� P. MULONDA, CONSTITUTIONAL COURT JUDGE R16 IN THE CONSTITUTIONAL COURT OF ZAMBIA AT THE CONSTITUTIONAL COURT REGISTRY HOLDEN AT LUSAKA (CONSTITUTIONAL JURISDICTION) 2016/CC/0031 SEP 2075 BETWEEN: IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER: AND IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER OF: THE PRESIDENTIAL PETITION FOR THE PRESIDENTIAL ELECTIONS HELD ON 11th AUGUST, 2016 THE CONSTITUTION OF ZAMBIA, THE ACT, OF CONSTITUTION CHAPTER 1, VOLUME 1 OF THE LAWS OF ZAMBIA ZAMBIA 91, ARTICLES 1, 2, 5, 8, 9, 45, 47, 48, 49, 50, 54, 93 OF THE 92, AND 60, 90, THE OF CONSTITUTION ACT, OF CONSTITUTION CHAPTER 1, VOLUME 1 OF THE LAWS OF ZAMBIA ZAMBIA, ZAMBIA ARTICLES CONSTITUTION CONSTITUTION CHAPTER 1, VOLUME 1 ZAMBIA (D OF OF OF (C) ZAMBIA, ZAMBIA THE THE ACT, OF THE LAWS OF (1) SECTION 8 (D) OF THE CONSTITUTION THE CONSTITUTION ACT, CHAPTER 1, VOLUME 1 OF THE LAWS OF ZAMBIA (C) AND OF OF ZAMBIA, ZAMBIA SECTIONS 29, 37, 38, 51, 52, 58, 59, 60, 66, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 81, 82, 83, 84, 86, 87, 89, AND 91 OF ELECTORAL PROCESS ACT NO. 35 OF 2016 OF THE LAWS OF ZAMBIA SECTIONS 110 OF ELECTORAL PROCESS ACT (ELECTORAL CODE OF CONDUCT) NO. 35 OF 2016 OF THE LAWS OF ZAMBIA J1 AND AND IN THE MATTER OF: BETWEEN: HAKAINDE HICHILEMA GEOFFREY BWALYA MWAMBA AND EDGAR CHAGWA LUNGU INONGE WINA SECTIONS 110 OF THE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT NO. 21 OF 2009 OF THE LAWS OF ZAMBIA 1ST PETITIONER 2nd PETITIONER 1st RESPONDENT 2nd RESPONDENT ELECTORAL COMMISION OF ZAMBIA 3rd RESPONDENT ATTORNEY-GENERAL 4th RESPONDENT Before Chibomba, PC, Sitali, Mulenga, Mulonda and Munalula, JJC in Open Court on 5thSeptember, 2016 For the Petitioners: In Person For the 1st and 2ndRespondent: Mr. B. C. Mutale, SC, of Ellis & Company Mr. E. S. Silwamba, SC, Mr. J. Jalasi and Mr. L. Linyama of Silwamba, Linyama and Jalasi Legal Practitioners Prof. P. Mvunga, SC, of Mvunga Associates Mr. S. Sikota of Central Chambers Mr. N. Mubonda of D. H. Kemp and Company Mrs. Suba of Suba Tafeni and Associates Mr. N. Simwanza of Noel Simwanza Legal Practitioners J2 For the 3rd Respondent: Mr. A. Shonga, SC, and Mr. S. Lungu of Shamwana and Company For the 4th Respondent: Mr. L. Kalaluka, SC, Attorney-General Mr. A. Mwansa, SC, Solicitor-General DISSENTING JUDGMENT I hold a different view and will therefore read my own judgment. This matter was scheduled for hearing on Friday 2nd September 2016 following direction given by a single judge of this Court on Thursday 1st September 2016. The direction was based on a literal interpretation of Article 101(5) of the Constitution. The Article provides as follows: "The C o n stitu tio n a l C o urt s h a ll hear an election p e titio n file d in accordance w ith clause (4) w ith in fourteen days o f the filin g o f the p e titio n ." According to the literal interpretation the period in which to exchange pleadings and other pre-trial process, hear witnesses and if we follow the logic of this approach to its conclusion, deliver judgment, began on 20th August 2016, the day after the petition was filed and ended on Friday 2nd September 2016. Is this feasible? Familiarity with the trial process not only in generic terms but in the Zambian context will not support the position. As soon as the direction to hear witnesses and conclude the hearing on 2nd J3 September was given, the parties should have moved the full Court seeking an interpretation of Article 101(5). They did not do so. On 2nd September 2016, the Court proceeded on the assumption that the parties would expedite the prosecution of the matter in order to fulfill the letter of the law. The Court began proceedings in that light. What followed was shocking. The Court was bombarded with motions from the petitioners’ lawyers that took up most of the day. None of the motions however asked for an interpretation of Article 101(5). By early evening, it was clear that the petitioners’ lawyers had no intention of presenting their witnesses and when instructed by the Court to begin calling their witnesses, they excused themselves from the proceedings abandoning the petitioners. The petitioners, representing themselves in person sought time to engage fresh counsel and the fulfillment of their cardinal right to be heard by the Court. Although the application was opposed by counsel for the respondents, the Court granted the application and set Monday 5th September to Thursday 8th September as the dates for continued trial. The decision of the Court needs explanation. J4 I wish to begin from the cardinal principle that the Constitution must be read as a whole. No one word or phrase in a provision, no one clause and certainly no one provision should be read in a manner that alienates it from the rest of the provisions or the rest of the Constitution. The common and ordinary meaning of words is the starting point to bringing life to a clause, provision and indeed Constitution as a whole. However an unrelieved focus on the words "within fourteen days of the filing of the petition" cannot give us the correct and sensible meaning of the Article in which the words are embedded. Literal and conservative interpretation of Article 101(5) is tenable in an abstraction that un-shackles the Court from the normal rigor of procedural justice. It also entails interpreting the said provision in isolation and without primary regard for the need to fulfill the purpose of the provision. Under the general provisions of the Constitution, are two provisions that cannot be ignored. Firstly Article 271 sets out the implied powers of an office by stating that a power given to a person or an authority to do or enforce the doing of an act includes the necessary and ancillary powers to enable that person or authority to do or enforce the doing of an act. This Court enjoys implied powers to fulfill Article 101(5). Secondly Article 267 J5 states that the Constitution shall be interpreted in accordance with the Bill of Rights and in a manner that promotes its purposes, values and principles; in a manner that permits the development of the law and in a manner that contributes to good governance. Among the values set out in Article 8 are national unity and democracy. The application of the values and principles is by virtue of Article 9, mandatory. Article 118(1) further states that judicial authority derives from the people of Zambia and shall be exercised in a just manner and such exercise shall promote accountability. Article 118(2) states that in exercising judicial authority the courts shall be guided by principles which include: (e) Ju stice s h a ll be adm inistered w ith o u t undue "118 technicalities". regard to procedural I am fully aware that the framers of the Constitution were faced with a history of endemic delays in the disposal of presidential election petitions that made a mockery of the process. They wanted a speedy resolution to any future petitions. They were fortified in taking this approach by the other provisions in the Constitution that limit the powers of the incumbent, even if he or she is the president-elect, and of anyone else acting as caretaker, until a presidential election petition is resolved. This period of uncertainty should be minimal. J6 However that need for speedy resolution must be tempered by a need to actually have a hearing. The primary purpose of Article 101(5) is to hear a petition and make one of the pronouncements set out in Article 101(6) based on a solid finding of both fact and law. If the process of hearing has not been concluded, the stated purpose has not been achieved and complying to a deadline without the intended event having taken place is an absurdity. This view is supported by a purposive interpretation of Article 101(5) and it is the position I would have supported. In my view therefore the parties to this case working with this Court would have helped this country by allowing a hearing to take place rather than make a pronouncement based on a technicality. The Court’s decision to take a route that would have this matter heard on the merits made on Friday was intended to allow an informed decision and reiterate our independence. The issue of a presidential election petition is too heavy for a mechanical response by the Court and a well reasoned decision would have helped to heal this nation. At the same time I must acknowledge the difficulty that this Court has faced in handling this matter because neither party trusted us to do the right J7 thing. If we as a country want to develop constitutionalism in this country we need to begin to trust the institutions and the persons in those institutions. This concludes my dissenting opinion. Prof Justice Mulela Margaret Munalula J8 J1 IN THE CONSTITUTIONAL COURT OF ZAMBIA AT THE CONSTITUTIONAL COURT REGISTRY HOLDEN AT LUSAKA (CONSTITUTIONAL JURISDICTION) 2016/CC/0031 OSSEp 2018 BETWEEN: IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER: AND IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER OF: AND THE PRESIDENTIAL PETITION FOR THE PRESIDENTIAL ELECTIONS HELD ON 11th AUGUST, 2016 THE CONSTITUTION OF ZAMBIA, THE CONSTITUTION OF ZAMBIA ACT, CHAPTER 1, VOLUME 1 OF THE LAWS OF ZAMBIA ARTICLES 1, 2, 5, 8, 9, 45, 47, 48, 49, 50, 54, 60, 90, 91, 92, AND 93 OF THE ZAMBIA, CONSTITUTION OF THE CONSTITUTION OF ZAMBIA ACT, CHAPTER 1, VOLUME 1 OF THE LAWS OF ZAMBIA (1) ARTICLES (C) OF THE CONSTITUION OF THE ACT, CONSTITUION OF CHAPTER 1, VOLUME 1 OF THE LAWS OF ZAMBIA ZAMBIA, ZAMBIA SECTION 8 (1) (C) AND (D) OF THE ZAMBIA, CONSTITUTION OF THE CONSTITUTION OF ZAMBIA ACT, CHAPTER 1, VOLUME 1 OF THE LAWS OF ZAMBIA SECTIONS 29, 37, 38, 51, 52, 58, 59, 60, 66, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 81, 82, 83, 84, 86, 87, 89, AND 91 OF ELECTORAL PROCESS ACT NO. 35 OF 2016 OF THE LAWS OF ZAMBIA SECTIONS ELECTORAL PROCESS ACT (ELECTORAL CODE OF CONDUCT) NO. 35 OF 2016 OF 2016 OF THE LAWS OF ZAMBIA OF AND IN THE MATTER OF: BETWEEN: HAKAINDE HICHILEMA GEOFFREY BWALYA MWAMBA AND EDGAR CHAGWA LUNGU INONGE WINA ELECTORAL COMMISION OF ZAMBIA ATTORNEY-GENERAL J2 SECTIONS 110 OF THE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT NO. 21 OF 2009 OF THE LAWS OF ZAMBIA 1st PETITIONER 2nd PETITIONER 1st RESPONDENT 2nd RESPONDENT 3rd RESPONDENT 4th RESPONDENT Before Chibomba, PC, Sitali, Mulenga, Mulonda and Munalula, JJC in open Court on 5th September, 2016 For the Petitioners: In Person. For the 1st and 2nd Respondents: For the 3rd Respondents: Mr. E. S. Silwamba, SC, Mr. J. Jalasi and Mr. L. Linyama of Eric Silwamba, Jalasi and Linyama Legal Practitioners, Mr. B. C. Mutale, SC of Ellis and Company, Lisimba and Jalasi, Prof. P. Mvunga of Mvunga Associates, Mr. S. Sikota, SC, of Central Chambers, Mr. K. Mubonda of D. H. Kemp and Company, Mrs. Suba of Suba Tafeni and Associates and Mr. N. Simwanza of Noel Legal Practitioners. Mr. A. shonga, SC and Mr. S. Lungu of Shamwana and Company. For the 4th Respondents: Mr. L. Kaialuka, SC, Attorney-General. Mr. A. Mwansa, SC, Solicitor-General. D I S S E N T I N G J U D G M E N T J3 I have also looked at the dissenting Judgment by Judge Munalula, I totally agree with the comments therein. I must also say from the outset that I have had very little time to read through the majority Judgment which I was given this morning after 08.00 hours together with the Judgment by Justice Munalula. This left me with very little time to put down my thoughts in an elaborate manner. Therefore, my comments are as follows:- I totally agree with the decision of the majority in so far as it relates to the conduct of the learned Counsel for the Petitioners in attacking and using abusive language against the court and in singling out the single judge of the court. It is not what we expect to see or hear in our courts no matter the difference of opinion Counsel may have from that of the Court. Whilst recognizing that the Constitution stipulates 14 days within which a Presidential Petition should be heard, that time frame does not take into account the fact that the matter must be prepared and set down for trial. After the petition is filed, the Respondents must have time to answer and the Petitioners must have time to Reply. This system which is founded on the adversarial system has proved impossible to achieve going by the experience we have had in this matter as a greater part of the 14 days was taken up in setting down J4 the Petition for trial thereby leaving us with only one day for the hearing of witnesses. It also did not allow the court to hear issues arising from the single Judge’s decisions during the setting down of the matter for trial before trial could begin. The result was that the day set for hearing of witnesses was taken up by hearing and determining issues arising out of the single Judge’s decisions. At the same time the court was faced with the issue of ordering the closure of the case so as to comply with the time frame stipulated. This resulted into it being impossible for us to hear any evidence from all the parties. The time frame given in Article 101 (5) is not workable or practical and needs to be looked into so that the intention of the people of Zambia of giving parties a fair hearing and adequate time to be heard which is a fundamental Human Right upon which our Justice system is based could be achieved. Reading Article 101 (5) and 103 (2) in isolation in my view, leads to absurdity as the Constitution in terms of Article 267 and Article 271 require the court in interpreting the Constitution to take into account the Bill of rights and the principles and values of the Constitution enunciated in Articles 8 and 9 of the Constitution. This is what swayed us to extend the time to allow for the hearing of witnesses so that the case could be decided on its merit and I was requested to read this. I still stand by that position as the right to be J5 heard is fundamental and is one of the cardinal principles upon which our justice system is founded. I would have allowed the hearing of the evidence to proceed but the majority carry the day. i i H. Chibomba PRESIDENT CONSTITUTIONAL COURT