The State Cannot Block the Courts and Then Claim No Petition Was Filed

By Brian Matambo | Media Director – Tonse Pamodzi Alliance The Tonse Pamodzi Alliance has taken note of the statement attributed to Secretary to the Cabinet, Patrick Kangwa, announcing that no presidential petition had been received within the prescribed period and that the…

By Brian Matambo | Media Director – Tonse Pamodzi Alliance

The Tonse Pamodzi Alliance has taken note of the statement attributed to Secretary to the Cabinet, Patrick Kangwa, announcing that no presidential petition had been received within the prescribed period and that the inauguration of Hakainde Hichilema would therefore proceed.

Kangwa should not pretend to suffer from selective memory. Zambians are not in a trance. They are watching, they remember what happened, and they understand the sequence of events that brought us here.

Less than 24 hours before that announcement, court premises were surrounded by armed security personnel and access to court facilities was blocked at the very time when a presidential election petition was due to be filed.

The question Kangwa must answer is simple: how do you physically obstruct access to the courts and then announce that nobody filed a petition?

The petition was eventually transmitted to the Chief Justice under admittedly irregular circumstances. But those circumstances cannot be separated from what happened at the courts. When citizens are prevented from using the ordinary avenue provided for filing their case, they cannot subsequently be condemned for finding another means of placing their petition before the Judiciary.

Indeed, the Judiciary has now confirmed that Chief Justice Dr Mumba Malila received documents designated as “The People’s Presidential Petition” and has referred them to the Constitutional Court for consideration of the filing issue. The Constitutional Court must therefore be allowed to deal with that question without political or administrative interference.

This latest development must also be understood against the wider sequence of events surrounding the disputed August 13 election. ECZ suspended the results process. Thereafter, we witnessed an extraordinary involvement of the military in an electoral process that should ordinarily be administered by civilian institutions. Results subsequently emerged containing serious inconsistencies which we have already begun placing before the Zambian people, including discrepancies between presidential and parliamentary turnout figures.

Then came the constitutional opportunity to challenge those results. And what happened? The courts were blocked.

This is why we find Kangwa’s rush to pronounce the inauguration more troubling than the irregular manner in which the petition reached the Chief Justice. The fundamental issue before Zambia is not whether an email was conventional. The fundamental issue is whether Zambians will be permitted to exercise their constitutional right to challenge a disputed presidential election.

Kangwa must also understand that his conduct as a senior public officer is being watched and recorded. His role and public pronouncements surrounding the late President Edgar Chagwa Lungu remain fresh in the minds of many Zambians. His comments following the death of Hon. Mutotwe Kafwaya during this election period have also been noted. His present rush to pronounce the presidential transition concluded, while the Judiciary itself says the Constitutional Court will consider the petition’s filing, raises further serious questions.

We therefore repeat the question we have asked before: if Hakainde Hichilema genuinely believes that he won the August 13 election freely and fairly, why should anybody be afraid of a petition?

A petition is not an insurrection. It is not terrorism. It is not an attack on the State. It is a constitutional process through which disputed elections are tested before a court of law. If the declared results are genuine, let them withstand judicial scrutiny.

Zambia desperately needs the truth. Zambia needs healing. That healing will not come from soldiers outside courtrooms, administrative pronouncements or attempts to shut down legitimate constitutional questions. It will come when every democratic process is allowed to reach its lawful conclusion and every institution is permitted to perform its constitutional duty.

The Constitutional Court must therefore be allowed to determine the question now placed before it. No public officer should attempt to prejudge that process.

And when all this is over, everyone who exercised public power during this extraordinary period must be prepared to account for his or her decisions in accordance with the law. That includes those commanding the military and police, those administering the electoral process, and senior officials within the Executive and Judiciary. Public office does not extinguish personal responsibility for unlawful conduct.

Let the petition be heard. Let the evidence be examined. Let the truth come out. That is not too much to demand in a constitutional democracy.

Brian Matambo
Media Director, Tonse Pamodzi Alliance