By E. Munshya wa Munshya
Mr. Terry Musonda, a spokesman for the judiciary of Zambia has issued a statement in which he purports to clarify the issue that has engulfed our nation in recent days. The issue has been whether a respondent in an election petition, whose seat gets nullified, by the High Court should also, by strength of the same judgment, be barred from re-contesting that seat.
Before Mr. Musonda’s press statement, several stakeholders had given their position on the matter. The Law Association of Zambia (LAZ) had issued a statement to the effect that without a report from the High Court instructing the Electoral Commission of Zambia, the ECZ cannot on its own bar any candidate from contesting. The ECZ itself had issued similar statements stating that according s.22 read with ss 104 to 107 of the Electoral Act (2006), the elections body could only act after it receives a report from the High Court specifically addressing these matters. In the absence of such reports the ECZ cannot bar any candidate.
I had written earlier, supporting, the ECZ position. I had also indicated that indeed with regard to s.22, there are two situations under which a candidate could be barred. First, it could be through a conviction for electoral corruption and secondly, through a report from the High Court specifically made for this purpose. The Patriotic Front, however, with their Secretary General Mr. Wynter “One-Party State” Kabimba have piled even more pressure on ECZ to block these candidates from re-contesting their seats.
By raising these issues, the Patriot Front has been targeting MMD’s Dora Siliya, Mtolo Phiri and Maxwell Mwale whose seats where nullified on account of electoral corruption and other illegal activities. Indeed, all these candidates have varied degrees moral culpability with regard to the nullified elections.
The purported statement from the judiciary signed 8 August 2013, by Mr. Terry Musonda makes no legal sense at all. President of the Law Association of Zambia, Mr. James Banda, has been swift to condemn this press statement and to declare that this statement does not have the force of law and as such should be ignored. For the following reasons, I would agree with LAZ.
First, Terry Musonda has overstepped his mandate. The mandate of a spokesman for the judiciary is an honorable one. It includes the duty to run the public relations department of the judiciary. It must be mentioned here that the role of such an officer is to be the support staff to the judiciary in general and specifically to all the players within that system. The judiciary does not just comprise the Supreme Court but rather the whole hierarchy in our court system. The spokesman serves these men and women who serve in the judiciary. Among other things, Mr. Musonda should be looking at ways to interact with the public and with the media. His mandate does not include making pronouncements that border on constitutional and administrative law. In that role of spokesman for the judiciary, his role does not extend to serving as a judge or as a court.
Second, Terry Musonda has a very unbalanced view of the role of the High Court and indeed the Supreme Court with regard to elections. As a support officer, and not a principal judicial officer, Mr. Musonda should have exercised restraint not to bloat out a clear misunderstanding of the High Court’s role. Obviously, he misses a few things over the judiciary he purports to be speaking for. In our system of government the Judges play several roles. Their primary role is that of being judges or adjudicators. Their courts have inherent jurisdiction to resolve legal matters brought before them. Additionally, judges have a statutory legal role as well.
However, in addition to this judicial role, several judges do have an administrative role to play within our democracy. For example, when the Chief Justice serves as the returning officer for presidential elections, he is not doing so in his judicial capacity (constitutional law) but in his administrative capacity (administrative law). In the same way, the Electoral Act 2006 grants the High Court some administrative duties to make a report on illegal practices it finds during a petition and send that report to ECZ for further action. Terry Musonda cannot say that this administrative role has been overtaken or superseded by the judgment of the Supreme Court. When the Supreme Court hears an appeal of a petition, it is doing in its judicial capacity. However, it still remains within the administrative capacity of the High Court to make the report to the Electoral Commission of Zambia if the High Court deems so.
If Terry Musonda meant that the Supreme Court rulings did in fact, curtail the administrative role of the High Court in delivering these reports, then he is insolently mistaken. Just where he got the idea that Supreme Court ruling invalidates the power of the High Court to issue these reports is a mystery perhaps that can only be resolved by asking midnight oil he burnt when he crafted this badly written statement.
Third, Terry Musonda then goes for the overkill by stating the obvious. It is true that the Supreme Court rulings are binding on all. But it is not only the Supreme Court rulings which are binding. In fact, strictly speaking it is the rulings of the High Court which are binding unless challenged by the Supreme Court. The issue here was not that any one had been disputing the ruling of the Supreme Court. There was no such thing. Mr. Musonda dreamt up this matter and decided to include it in his statement at midnight.
A very senior member of the Zambian High Court chairs the Electoral Commission of Zambia itself. Deputy Chief Justice Ireen Mambilima as chairman of the ECZ is very aware of the nuances that Terry Musonda seems to be instigating in his press statement. The thought that a commission chaired by his boss could not understand its true mandate is indeed scandalous.
Fourth, Terry Musonda, is commenting on some issues that are subject of a court action. This does not appear too well that a non-judicial officer is making pronouncements on some matters that are before a competent judge. Musonda need reminding that while the judiciary is an institution, the legally binding declarations of the judiciary are not press statements, but rulings of a competent court. Regardless of how Musonda thinks of himself, he is not a court and in fact, the judiciary he is claiming to represent is not the court of law. There is nowhere where anyone refers to the ruling of the judiciary. We always refer to the rulings of the courts. And so Musonda is wrong to the extent that he thinks that speaking for the institution of the judiciary gives him license to comment on matters that can only be handled by the competent court.
That being the case, Mr. Terry Musonda and officers like him do have a role in our institutions. These institutions can only run effectively if support staff are raising good standards in administration. As for this particular episode, Mr. Terry Musonda should be ruled offside. Or may be we should say his boss the honorable acting retired Chief Justice has gone beyond offside and what she really needs is red card. Her game should be over.
(c) 2013 – Elias Munshya, LLB (Hons), MA, Mdiv., is not a member of the Zambian Bar. For specific legal opinion readers are advised to consult members of the Zambian Bar.