LAZ: Judiciary Is In a Mess

LAW Association of Zambia vice president Eddie Mwitwa says the judiciary is currently in a mess and that the court system is confusing to some citizens.

In an interview, Mwitwa said it was possible for the High Court to overrule the Constitutional Court’s decision to dismiss the presidential petition if it found that the rights of the petitioners were infringed upon.

“I have spoken with the [UPND] lawyers and they have told me they are actually filing [a petition] today (yesterday), they didn’t file it yesterday as intended so I have asked for a copy so that I can make an informed comment afterwards. But if I understand what they are doing, they are trying to ask the High Court to determine whether the Constitutional Court did violate their right to have a fair hearing within a reasonable time,” Mwitwa said.

“The problem we have is the Constitution, the problem we have with it now is that any matter that is touching on the Bill of Rights or part three of the Constitution, the only court that has jurisdiction is the High Court, it is a bit of a mess and that is why I was saying that they have a right to go to the High Court because they are grounding their petition on the provisions of Article 28 of the Constitution and Article 18 which are both part of part three. So I will probably only be in a position to comment substantively once I look at the petition.”

He noted that the law seemed to be contradicting itself because of the failure of the Referendum.

“That is the law and that is part of the adverse consequences of the Referendum failing because had the Referendum passed, the Constitutional Court would have been given powers to deal with any violations of the Bill of Rights, which at the moment they don’t have because we have gone back to use the old Bill of Rights to determine all matters relating to the violations of human rights. It is a bit confusing to people,” Mwiitwa said.

Asked if the High Court had powers to overturn the decision made by the Constitutional Court, he said it was possible if it was found that the petitioners were denied their rights to be heard.

“Yes, it is very possible but the only thing is that these are provisions that are being interpreted for the first time. How does the Bill of Rights play with the other provisions that have come in following the amendment to the Constitution? So any decision at the moment is likely to just set precedent for future courts or litigants to follow,” Mwitwa said.

He added that LAZ was observing the developments to assess if the law was being followed.

“It is a matter that we are obviously interested in as LAZ. We want to see whether what is happening is in line with the law and what the potential outcome might be. I am told that they also want to get an injunction to restrain the Chief Justice from inaugurating the president-elect,” said Mwitwa.

“So the law still remains, it provides for anybody who feels that his rights have been violated under the Bill of Rights to go to the High Court under Article 28 of the Constitution and it remains for the court to determine whether that matter is rightly before that particular court or not so we will have to wait and see. From a law development point of view or a jurisprudence point of view, it is worth testing some of these provisions so that precedent is created.”