Lewanika and Ors v Attorney General and Ors (Application S.C.Z. 235 of 1995) [1996] ZMSC 49 (14 November 1996)

IN THE SUPREME COURT OF ZAMBIA APPLICATIONS Nos. SCZ/8/235/95 and SCZ/8/236/96 HOLDEN AT LUSAKA (Civil Jurisdiction) IN THE MAHER OF: AN APPLICATION UNDER ARTICLE 41 (2) OF THE CONSTITUTION, and IN THE MATTER OF: THE ELECTORAL ACT 1991 AND SUBSEQUENT AMENDMENTS THEREOF and IN THE MAUER OF: ARTICLE 34 (3) OF THE CONSTITUTION OF ZAMBIA BETWEEN: AKASHAMBATHA MBIKUSITA LEWANIKA HICUUNGA EVARISTO KAMBAILA PETITIONERS SEBASTIAN SAIZI ZULU (Suing as Secretary General of UNIP) JENNIPHER waba PHIRI (Suing as National Secretary of Liberal Progressive Front) AND THE ATTORNEY-GENERAL THE ELECTORAL COMMISSION RESPONDENTS FREDERICK TITUS JACOB CHILUSA Ceram: Ngulube, CJ, Bweupe DCJ, Sakala, Chaila, Chirva, Muzyamba and Lewanika, JJS uth November, 1996 FOR THE PETITIONERS: E. J. Shawana, SC Shamwana & Co M. M. Chona, SC Mahachl Chambers Prof. P. Mvunga, Patrick Mvunga and Associates O. Dzekedzeke, Dzekedzeke A Co S. Sikota, Central Chambers N. K. Mubonda, D. H* Kemp A Co. Hrs. F. Zaloumis, Legal Counsel, UNIP Mrs. Mutti, Lukona Chambers E. C. Lungu, Andrea Masiye A Co. R2/ : R2 : FOR THE RESPONDENTS: S. L. Chisulo, Solidtor-General E. Silwamba, Malambo Silwamba & Co. By Muzyamba, J. S. RULING This is a consolidated petition by Akashambatwa Mbikusita Lewanika Hicuunga Evaristo Kambaila, Sebastian Saizi Zulu and Jennipher Mwaba Phiri against the Attorney-General, the Electoral Commission and Frederick Titus Jacob Chiluba for the following declarations: (a) That the provisions of Article 34 (3) (a), (b) and (e) of the Constitution in respect of Frederick Titus Jacob Chiluba have not been satisfied and therefore that he was not qualified to be nominated as presidential candidate or to be elected as President of the Republic of Zambia. (b) That the said Frederick Titus Jacob Chiluba, in contravention of Section 9 of the Electoral Act 1991 as amended by Act No.23 of 1996 has sworn falsely as to his Citizenship? and that of his parents. (c) That Section 9 (3) of the Electoral Act 1991 as amended by Act No.23 of 1996 is ultra vires Article 41 (2) of the Constitution. (d) That the said Frederick Titus Jacob Chiluba was not a Zambian. (e) For an Order that the 1996 Presidential Elections be stayed until the determination of the issues raised in the petition and such other relief as the court made deem appropriate to enforce Article 41. Before the petition could be heard the court, on its own motion raised a preliminary issue namely whether or not a petition under Article 41 could be brought before the Presidential Elections are held and especially in view of the provisions of Section 9 subsection (3) of the Amendment to the Electoral Act, 1991. R3/... R3 Article 41 (2) (a) and (b) of the Constitution provide: M2 Any question which may arise as to whether: (a) Any provision of the Constitution or any law relating to Election of a Presidet has been complied with; (b) Any person has been validly elected as President under Article 34." And Section 9 (3) of the Amended Electoral Act 1991 reads: "Any question, by any person, which may arise as to whether any provision of the Constitution or any law relating to nomination or Election of President has been compiled with shall be referred by the returning officer or by such person to the full bench of the Supreme Court within 14 days of the person elected as President being sworn in, in accordance with Clause 9 of Article 34 of the Constitution." Leading Counsel for the petitioners Mr. Shamwana argued quite forcefully that Article 41 (2) was In two parts. That the first part In Subarticle (2) (a) relates to compliance with the provisions of the Constitution and any other law that deal with presidential nominations and Subarticle (2) (b) deals with the question of whether or not a person has been validly elected as a president. That under Subarticle 2 (a) any person was at liberty to bring a petition to challenge the nomination of a presidential candidate before an Election is held. That Section 9 (3) of the Amendment to the Electoral Act was ultra, vires the Constitution in that it seeks to postpone the right of a person under Article 41 (2) (a) of the Constitution to bring a petition to a date after a winning candidate has been sworn in as President and not hafnra tha Flort.ion_ : R4 : ihar tne court had jurisdiction to declare such a section unconstitutional and to sever it front the rest of the Act. In support of nis argument he cited the case of The People v Thomas Mumba 1984 Z. R. 3c by Chirwa J, as he then was. For the purposes of this ruling I do not intend to dwell on the question of ch? cost of running the Flections. Nur on the question of subtle invention of a mischief allegedly createo uy Section 9 (3) of the ame'iuiis'ii to the Electoral Act, 1991 referred to ov -’r. Sikot? in nis arguments. For this reason I do not intend to repeat the arguments by Prof. Mvung? Mr. SiKota. For the other side, it was argued by Ar. Cuisulo chat the words of Article 41 were unambiguous and that they should import their natural meaning. That wnereas nun compliance may exist in terms of Article 41 (2) (a) of the Constitution during nomination nevertheless it was not open to anybody to bring jtition relating to that, nomination before Elections. To fortify nis argument he referred the court to Section 9 (3) cited above which, ne again argueu was unamoiquous. On the question of whether or not Section 9 (3) was ultra vires Article 41 nc aruued chat the Section was procedural. lodt it uiu not take away the rights conferred by Article 41 (2) (a) ano cr.erefora that it was intr? vires cii? Cunsli tut ion. Ana i-.r. Silwamba, while conceding that r.ruicle -’1 (2)/wat nut (a) restrictive he concurred with i:r. Chisulo tint tuts suoarcicl? was cauqnt up h*-' *• '.y, of the airFiiument to the El?ctor'l Acc wnich ha said was inti'; vires A:-? duns ci cut ion. he further suumicvco i,huc assuming that it was ultra vires the Constitution this court had no jurisdiction to declare it unconstitutional. That only the :Jijh Court w\s cu■ Jctent co do $<’ under Article 2C. In reply, rtr* Shamwana argued that lais court had jurisdiction to , declare the Section unconstitutional R5 I have considered the arguments on both sides. It Is my finding that Article 41 (2) is in two parts. Subarticle (2) (a) relates to nominations, that is qualifications and disqualifications for presidential candidates and subarticle (2$/relates to the validity of the Election of a President, that is whether or not the Elected President conducted himself in accordance with the Electoral Regulations during the run up to the elections. The pertinent question to ask at this stage is when can one bring a petition under subarticle (2) (a). Is it before or after an Election is held. The answer would appear to lie in Section 9 (3) and as to whether or not it is procedural or a matter of substantive law, that is does it take aware anybody's rights under Article 41 (2) (a). I have closely examined the Section and I am satisfied that it is procedural. It is not a matter of substantive law and dees not in any way diminish anybody's rights under Article 41 (2) (a). It is therefore intra vires the Constitution. For this reason I hold that the petition is premature. It ought not to have been brought at this stage. I would dismiss it. In view of what I have said above I find it unnecessary to decide whether or not this court has original jurisdiction to declare any law unconstitutional. I award the costs to the respondents. SUPREME COURT JUDGE