Presidential tenure: Lawyers present arguments

President Lungu
President Lungu

LAWYERS representing the Law Association of Zambia (LAZ) in the case of four people seeking the High Court’s determination of the tenure of office for the January 20, 2015 presidential election submitted on Tuesday that the court does not have jurisdiction to expunge provisions of the constitution.


But lawyer presenting the petitioner, Robson Malipenga said the application by LAZ should be dismissed because the association did not comply with the first requirement of giving notice of intention to defend the case.


Landilani Banda told High Court judge Florence Lengalenga that the petition to alter the constitution by the four petitioners should be rejected because powers to change the constitution are a preserve of Parliament.


Richard Mumba, Simemeza Syachoke, Wright Musoma and Kaluba Simuyemba have sued LAZ, the Electoral Commission of Zambia (ECZ), Attorney-General Likando Kalaluka and all political party candidates who participated in the January 20, 2015 presidential election.


“Despite the wide jurisdiction of the court, it does not have the jurisdiction or powers to grant the relief being sought vis-a-vis to expunge or remove provisions of the constitution from the constitution.


“My lady, this is so because this honourable court is a creation of the constitution and is bound by the provisions of the constitution,” Mr Banda said.
He reiterated the position that the jurisdiction of the High Court does not extend to making declaration that will have the effect of altering the “complexion” of the constitution.


Another lawyer, James Banda said the petitioners do not have sufficient standing or locus standi.
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case.
Mr Banda said the petitioners have not disclosed how they have been discriminated against or are likely to be discriminated against.


Mr Malipenga said the issues raised by LAZ cannot be brought up at preliminary stage unless at full hearing of the petition.
He said the court has constitutional powers to expunge any provision, in particular where there is conflict with fundamental rights.


“It was argued that this court has no such powers. However, we would like to rely on Article 94(1) of the Constitution which states in part that the High Court shall have unlimited jurisdiction to hear and determine any cause,” Mr Malipenga said.


The petition is for determination of tenure of office for the January 20, 2015 presidential election and interpretation of Articles 23 (1), (3) 28 (a), 38 (1), 34, 35 (1) and (4) (c), 67 (1), 88 (6) (a) and nullification of Articles 35 (4) (c) and 88 (6) (a) for being discriminatory for an elected president through death or resignation of the incumbent, among others.