MMD LEADERSHIP WRANGLES: Complying with Constitution

By Isaac Mwanza

In its judgment, the Supreme Court of Zambia sitting at Kabwe on Tuesday 10th April, 2018 in the matter regarding the leadership wrangles in the former ruling party the Movement for Multi-Party Democracy, the court handed down its decision whose effect has been interpreted differently by both the media and members of the legal fraternity. These interpretations reflect the political views of persons either in favour of the putative current president of the MMD, Mr. Felix Mutati or the applicant in the matter and former leader of the MMD, Mr. Nevers Mumba.

I personally subscribe to the view that the judgment neither confirmed Mr. Mumba as president, nor did it annul Mr. Mutati’s claim as MMD President. I wish to offer my views as to why I have taken this position.

In this Article we shall look at the MMD leadership wrangles and also extend the discussion to other political parties that have not held internal party elections.

Origin of MMD legal battles

The origin of this matter is that on the May 27, 2016, Winnie Zaloumis (suing in her capacity as the Acting National Secretary for the Movement of Multi-Party Democracy) filed an amended Writ of Summons and Statement of Claim in the High Court for Zambia in which she sued Felix Mutati and 3 others.

On December 9, 2016, the defendants (Mutati and 3 others) filed their Defence and Counter-Claimed that the decision by the National Executive Committee (NEC) made on January, 30 2016 not to hold the convention is contrary to the provisions of Article 60 of the Constitution of Zambia, Chapter 1 of the Laws of Zambia and Article 14(1) of the constitution of the  Movement for Multi-Party Democracy (MMD) and sought a declaration, among others, that the tenure of the MMD Presidency and of NEC members who are elected at a regular convention is co-terminus and as such the convention should be held on or before April 11, 2016.

Later on February 3, 2017, the Mutati group filed Summons for an Order to Refer the matter to the Constitutional Court on the basis that their counter-claim made specific reference to Article 60 of the Constitution of Zambia and that the Statement of Claim raised Constitutional issues with respect to intra Political Party Democracy, which reference was rejected by Hon. Judge J. M. Siavwapa on February 10th, 2017. The refusal was later appealed to the Court of Appeal which also dismissed the appeal on June 13, 2017 by holding that the Appeal from the High Court decisions to refer a matter to the Constitutional Court lies with the Constitutional Court of Zambia and not the Court of Appeal of Zambia.

At this point the Mutati legal team should have surely appealed to the Constitutional Court if they wanted to be heard by the Constitutional Court, but in their wisdom, sought leave to appeal the decision of the June 13, 2017 to the Supreme Court of Zambia.

In the Supreme Court, among other grounds advanced for the appeal were that the Court of Appeal of Zambia erred in law when it held that an Appeal from the decision of the High Court refusing to refer a matter to the Constitutional Court lies with the Constitutional Court of Zambia and not the Court of Appeal of Zambia.

That the Court of Appeal of Zambia erred in law when it held that the decision of the High Court of Judicature for Zambia refusing to refer the matter to the Constitutional Court of Zambia is within the definition of “constitutional matters”

In the Order of the Supreme Court of Zambia delivered by Justice E. M. Hamaundu, the Supreme Court of Zambia dismissed the appeal as it was of the view that the counter-claim which the Mutati group had earlier raised should have been commenced or raised in the Constitutional Court of Zambia and not the High Court for Zambia.

The Question of the law

The relevant provisions of the law are Sections 18 of Constitution of Zambia No. 1 of 2016, Articles 1(5), 60 (2) (d), Article 28 (1)(a), Article 128 (2) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia, and Section 23. (1) Constitutional Court No. 8 of 2016, which read as follows:

Constitution of Zambia No. 1 of 2016
Section 18. (1)
A political party in existence immediately before the effective date shall, within twelve months of the effective date, comply with the Constitution as amended and any legislation enacted by Parliament in accordance with the Constitution as amended.

Section 18. (2)
If on the expiry of the period of twelve months, a political party has not complied with the Constitution as amended and any legislation enacted under subsection (1), the political party shall forthwith cease to exist as a political party.

Constitution of Zambia, Chapter 1 of the Laws of Zambia
Article 1(5)
A matter relating to this Constitution shall be heard by the Constitutional Court.

Article 60 (2) (d)
A political party shall promote and practice democracy through regular, free and fair elections within the party

Article 28. (1) (a) [Enforcement of protective provisions]
Subject to clause (5), if any person alleges that any of the provisions of Articles 11 to 26 inclusive has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply for redress to the High Court which shall hear and determine any such application

Article 128 (2)
Subject to Article 28 (2), where a question relating to this Constitution arises in a court, the person presiding in that court shall refer the question to the Constitutional Court.

Section 23. (1) Constitutional Court No. 8 of 2016
Subject to Article 28 of the Constitution and section twenty-four, an appeal shall lie to the Court from a judgment of the High Court in a constitutional matter.

The Case of the MMD

The first issue I wish to address, is the appeals which were made by the Mutati group. Any layman like me reading Section 23. (1) Constitutional Court No. 8 of 2016 as quoted above, would have known the moment the High Court refused to refer the matter to the Constitutional Court, the appeal lay to the Constitutional Court. The route that had been taken by the Mutati group to go to Court of Appeal and Supreme Court was a waste of time when the courts were simply directing them to go to the Constitutional Court, directly.

The second issue is whether the High Court was on terrace firma, or on firm ground, when it refused to entertain an application to refer the matter to the Constitutional Court in view of Articles 128(2) read together with Articles 60 (2) (d) and Article 1(5), as quoted above.

There is no question about it that the holding of internal party elections within all our political parties is no longer a party issue as a club, a lame excuse being used by political parties to run away from holding internal party elections. Holding internal elections is a constitutional matter, with very grave consequences for those that don’t do it, as I will explain later.

So indeed, the Mutati group raised a good constitutional matter but the question is whether the High Court had the jurisdiction to hear the matter. The High Court has jurisdiction to enforce rights while the Constitutional Court jurisdiction is to interpret the Constitution although its jurisdiction, as per Article 128 (1)(e), extends to whether or not a matter falls within the jurisdiction of the Constitutional Court. In other words, the Constitutional Court can hear any matter if it considers it fit.

In view of the above, the issue raised by the Mutati group where it cited provisions of the Constitution was one, not of interpretation but enforcement of their rights as members of the MMD party, to elect their leaders. On this note, the High Court had jurisdiction to hear that matter of enforcement of that right.

However, the Supreme Court decision that the Counter-Claim which the Mutati group had earlier raised should have been commenced or raised in the Constitutional Court of Zambia and not the High Court for Zambia is also in tandem with the law as Article 1(5) clearly grants the Constitutional Court the jurisdiction to hear a constitutional matter but can also hear matters whether or not a matter falls within the jurisdiction of the Constitutional Court.

In the circumstances above, I cannot fault the Mutati legal team of having opted to raise the matter in the High Court where the main matter was being heard. The Constitutional Court has frowned on litigants who commence parallel litigation over matters which are similar in nature as has been the case in a number of cases commenced by Mr. Hakainde Hichilema and Mr. Geoffrey Bwalya Mwamba. The courts have deemed such duplicity, as amounting to abuse of court process. It was therefore prudent that the matter had been raised in the High Court as opposed to commencing the matter in the Constitutional Court. The Mutati group lost it when they decided to appeal the refusal to other courts apart from the Constitutional Court.

The last question is whether or not the Nevers Mumba group was obliged to conduct Party elections with the enactment of the amended Constitution. It must be noted that the decision by the National Executive Committee (NEC) not to hold the convention was made on 30th January, 2016, 3 weeks after the amended Constitution became law on 5th January, 2016. It must also be noted that Section 18(1) of the Constitution of Zambia, Act No 1 of 2016 granted political parties ‘twelve months from January 5, 2016, within which to comply with the Constitution as amended. However, it is safe to say that the MMD National Executive Committee was fully aware that internal party elections were due that year, the previous election having been held in 2011. The MMD has the distinction of being, up to that point, the only political party to have held its internal leadership elections every five (5) years since its formation in 1991, in compliance with the Party’s own constitution.

The High Court has not determined the main matter which was raised by Dr. Mumba and his group. The matter should go back to the High Court of Zambia to enable that Court determine the matter before it, which is, whether or not Mr. Felix Mutati was legitimately elected President of the Movement of Multi-Party Democracy (MMD) at the Convention held on May 20, 2016. Both sides have a very good case to argue based on both the provisions of the Constitutional of Zambia and the MMD Party Constitution.

Adherence of Political Parties to the Constitution

Unlike the MMD, other political parties have no excuse for failing to comply with the Constitution by holding internal party elections as required by the Constitution. Section 18(2) of the Constitution of Zambia Act No. 1 of 2016 is clear that,

“If on the expiry of the period of twelve months [from January 5, 2016], a political party has not complied with the Constitution as amended and any legislation enacted under subsection (1), the political party shall forthwith cease to exist as a political party.”

There are so many political parties today who are claiming the President is in breach of the Constitution but have not looked into their own eye to determine whether they should even continue to exist as political parties for failure to comply with the Constitution of Zambia. Political parties cannot run like companies where leaders, who themselves assumed power through elections, turn themselves into Managing Directors and appoint party members to elective positions.

Conclusion

The 12 month period given in the Constitution of Zambia, for all political parties to hold holdinga of internal party elections for all political parties, elapsed on January 5, 2017. It is now mandatory that political parties must hold these internal elections in obedience to the Republican Constitution and their own party constitutions.

Since the Registrar has failed to deregister political parties which are in breach of the Constitution by failing to comply with its provisions cited above, I long to see the day when those who seek to defend the Constitution from being breached, will apply to the Constitutional Court to declare parties, especially those with seats in Parliament, that have not complied with provisions of the Constitution as amended, as being in substantial breach and declared to be non-existent for failure to comply with the constitution.

We must not have persons who themselves breach the constitution but seek to hold others to account, for the same alleged breaches.