On September 26th, 2024, the Constitutional Court of Zambia held a critical session in the ongoing petition involving former President Edgar Chagwa Lungu (ECL). The legal team representing Lungu requested an extension to file a recusal application that questions the impartiality of some members of the court. Due to unforeseen delays, including power outages and the complexity of gathering supporting documentation, the court ultimately granted the extension, allowing the application to be filed by September 30th. The court will reconvene to hear arguments on October 3rd, 2024.
The session opened with Justice Munalula noting that the court had not received the expected filing of the recusal application by 13:00 hours as ordered. In response, Lungu’s lead counsel, Makebi Zulu, explained the reasons for the delay. Zulu detailed that the order to file the recusal application was given at 11:40 hours, leaving insufficient time for his team to draft, file, and serve the necessary documents by 13:00 hours. Additionally, Zulu highlighted that his team encountered load-shedding at their office, further complicating their ability to meet the court’s strict deadline.
Zulu went on to emphasize the difficulty of preparing a recusal application in such a short timeframe, noting that the nature of the application required extensive documentation, including evidence of alleged bias between the Vice President of the Constitutional Court and the Republican President, Hakainde Hichilema. This evidence, Zulu argued, could only be obtained through searches at the Patents and Companies Registration Agency (PACRA) and other relevant bodies. He stressed that proving such allegations of bias required careful preparation, making the initial one-hour deadline impossible to meet.
Opposition to the request for an extension was swiftly raised by the second respondent’s counsel and the Attorney General, Mulilo Kabesha. Kabesha argued that Lungu’s legal team had ample time to prepare and should not be granted additional time simply because of a power outage. He accused the first respondent of employing “Fabian tactics” to delay the proceedings, referencing a book by Dr. Mumba Malila, which describes such strategies as deliberate attempts to obstruct the judicial process. Kabesha further contended that the allegations against the court’s Vice President were serious and should have been raised earlier if they were genuine.
Lawyer for the petitioner, Michael Mwape Moono, echoed these concerns, labeling the extension request as an afterthought designed to delay the case. He argued that the first respondent had known the hearing date well in advance and had sufficient time to raise concerns. Moono urged the court to dismiss the application and proceed with the substantive case, emphasizing the importance of maintaining public confidence in the judicial process.
Despite the objections, Justice Munalula ruled that the application to file out of time would be granted. The court acknowledged the seriousness of the allegations raised by Lungu’s team and recognized that denying the extension could compromise the interest of justice. The court ordered that the recusal application and supporting arguments be filed by September 30th, 2024, with responses from the petitioners and other respondents to be filed by October 2nd. The court will hear the recusal application on October 3rd, 2024.
The ruling marks a critical moment in the ongoing legal battle, as the recusal application, if granted, could have significant implications for the composition of the bench hearing the case. Both sides remain firmly entrenched in their positions, with the petitioner’s counsel pushing for the case to proceed without further delays, while Lungu’s team insists that the court must first address the perceived bias within the judiciary. The upcoming hearing on October 3rd is expected to be a pivotal moment in the case, as the court will determine whether the allegations of bias warrant the recusal of any of the judges involved belowis the full verbatim
Court resumes sitting; 14:00hrs
Justice Munalula – We had given orders for the application to be filed by 13:00hrs today. We have not received anything.
Makebi Zulu – My Lord and My Lady, the application to file was not made for the following reasons: When the order was given to file, it was at 11:40hrs. It takes half an hour to drive to the office. At the office, we found that there was no power as Roma was being load-shedded.
My Lady, even assuming that there was no load-shedding, fulfilling the condition to file within an hour was impossible. Without even beginning to draft the application, we had lost more than an hour. My Lady, this court is fully aware of the time that motions take. That we have to file summons, accompanying affidavits, and arguments, and we may not need to emphasize that arguments require research.
It is impossible for an application such as this to be done within an hour, as to prepare, file, and serve within an hour is practically impossible. The nature of the application requires the attachment of evidence, for example, the first respondent alleges that a close attachment exists between the Vice President of this Court and the Republican President, Mr. Hakainde Hichilema.
The allegation of bias or perception thereof will have to be proven as a matter of fact. His proximity to President Hichilema as Secretary or Director of companies associated with President Hichilema or ordinary closeness requires documentary evidence, through a search at PACRA and relevant bodies.
The allegations against the President of this court…
Lawyer for the petitioner, Michael Mwape Moono – Objection, My Lady. I’m troubled by the information Counsel is alluding to. It is not before this court. Or, to put the facts in the manner he is putting, he is giving evidentiary submission.
It is enough to say there is a fact requiring evidence, what I strongly object to is to find this material in the court’s records. Because of this, there is no room or opportunity to interrogate or examine such allegations as are being put before this court. These issues Counsel has raised on behalf of the first respondent must not come from the bar. I therefore request that the facts he has alluded to be expunged from the record.
Makebi Zulu – My Lord and my Ladies…
Justice Munalula – Just a moment… Ok, proceed.
Makebi Zulu – I’m glad that Mr. Moono understands the predicament I’m in too. It’s an exercise in futility to file such an application within an hour. I would like to believe that it is not the intention of the Court.
Justice Munalula – What’s your answer on the issue raised, whether those remarks can be or cannot be expunged from the record?
Makebi Zulu – My Lady, I gave these facts as an example to demonstrate how difficult it is for us to have complied with the Court’s order of filing the application within an hour.
Justice Munalula – Thank you, Mr. Zulu.
Justice Munalula – Ruling: Our ruling is that we will not expunge from the records the examples given so far to illustrate a point.
Makebi Zulu – My Lady, My Lord, we wish to make an application that we be allowed to file the application out-of-time. Our proposal is that we be allowed to file by Monday mid-day, 30th September 2024. This will enable us to diligently represent our client and deliver a professional service. The one hour that was given has proved prejudicial.
Response from the Second Respondent – We recognize that the first respondent has not complied with the court order. This matter has been active since 2023. We are ready to proceed. We object to the application.
Attorney General, Mulilo Kabesha – When we come to court, we should always be ready. The stand that adjournments will be given willy-nilly should not be our cup of tea. We were last before this court in June 2024. The judges who are being cited today were part of the bench. This is why we say someone has come to court with an agenda in the armpit. Hearing from the first respondent in the morning, we thought they were ready. We therefore proceed. We do not agree that the matter should not proceed.
My Lord, I have been alerted that the Solicitor General wishes to say something.
Justice Munalula – Solicitor General, Please go ahead.
Solicitor General, Marshal Muchende – Much obliged, My Lady. In refusing to take umbrage, I wish to refer to the book authored by Dr. Mumba Malila SC, Delatory Tactics, Judicial Leadership and the Quest to Reform the Judiciary, page 86, which calls what appears to be on display here “Fabian tactics” – Fabian tactics designed to derail what should otherwise be straightforward proceedings.
In the book, the author states as follows: “What is safe evidence today, is what some lawyers, labouring under an erroneous view that they are hot stuff, become culprits in the systematic delay in concluding matters. They choose to bring intricate mesh, and the substantive issues before court become blurred, turning proceedings into highly legalistic and costly affairs.
As the State, we are concerned. The first respondent had all the time to prepare himself, to form material of his allegation, but opted to sleep on his rights until the very last minute or date of the hearing appointed lapsed. We submit that this is a delatory and Fabian tactic to delay what should be a straightforward matter.
It is our prayer that this court will not entertain this matter and will dismiss the application so that we can proceed with the substantive matter. It cannot come to be that after the first respondent raised serious issues this morning against men and women appointed by meeting the qualifications of the Constitution to be judges, that he would make his allegations without evidence worn on his holster.
Counsel for the first respondent stated that some facts require digging. It is clear that the evidence may not be ready. We therefore request that the court dismiss this application with the contempt it deserves.
Lawyer for Petitioner, Michael Mwape Moono – The petitioner joins the second respondent in objecting to this application before the court. Without repeating the same reasons as advanced by the second and third respondent, it is clear that this application is an afterthought.
If indeed these concerns of bias were real, the first respondent would have raised them for the first time when the court sat as a full bench on this matter. But to want to raise these issues as done, to deliberately delay until the moment of hearing, suggests that there could be other considerations he hopes to achieve by delaying the commencement of the hearing of this petition.
My Ladies and My Lords, to therefore indulge the first respondent would be to voluntarily give him the reins to these proceedings to dictate when we go and when we stop. This cannot be allowed. These proceedings are important to the public and national duties and this court must be seen to do its duty without swaying to the caprices of one of the parties.
The records will show that even at the commencement of proceedings, the order…
Justice Munalula – Response?
Makebi Zulu – My Lord, our application is very clear. It is for us to apply out of time, outside the time the court had given us. However, the arguments emanating from my colleagues now show that counsels are responding to the application for recusal, which matter is not yet before this court.
Lawyer for the Petitioner, Michael Moono – The application is seeking to be made out of the time. The lawyer for the first respondent is asking for more time, to delay this case, to file the request for recusal application out of time. My argument is that he must NOT be given more time as he has demonstrated that he is delatory in his conduct.
Makebi Zulu – My Lord and My Ladies, I object to the language being used here. It is insolent and therefore, it is imperative that we must observe the decorum of this court.
Justice Munalula – Let me respond and rule on the first objection. Counsel must give his submission and state that the remarks are focused and to the point. On the second objection, the language was earlier used by the Solicitor General, and it is not objectionable.
Lawyer for the Petitioner, Michael Moono – Thank you, My Lord. Furthermore, as was argued and emphasized by the Attorney General, we have come to court for the hearing. The respondent has known about this date of hearing since August 7th, 2024. In the interest of time, we must proceed to hear the petitioner’s petition while the first respondent remains deciding when and how to file the petition.
Justice Munalula – Reply?
Makebi Zulu – My Lady, this court saw it fit to grant leave to hear this application and was doing so in the interest of justice. Nothing has changed since 11:40hrs. To suggest that the application is not urgent is not true. My colleagues suggest that threshold issues that go to the very core of this matter cannot be ignored.
It is important to state that the determination of these concerns must be dealt with before the matter is heard. This being a procedural court, we are obliged to conform and adhere to the procedures and processes stipulated in the rules. We are saying that you have granted us leave, and we are grateful, but the time was not sufficient. To suggest that because we didn’t comply within an hour, the application must fail, would be a mockery and unjust.
The reasons we have made now are because we expected the power to return within a reasonable time, but it did not. Therefore, the leave must be granted out of time, and we request that it be filed by 12:00hrs on Monday, September 30th, 2024. The matter has already taken long; it is better to address it once and for all.
Justice Munalula – Thank you, Mr. Zulu.
RULING ON APPLICATION FOR RECUSAL TO BE FILED OUT OF TIME
Justice Munalula – Here is the court’s ruling. An application by the first respondent to be made out of time is hereby granted. This is because the nature of the allegations against the judges is serious. We are therefore constrained NOT to grant this application.
ORDERS
The first respondent should file an application and skeleton argument by Monday, 30th September 2024, by 14:00hrs. This must be done without fail. They must serve on the other parties too. We further order that the petitioners and other respondents file their responses by Wednesday, 2nd October 2024. We will hear the application on Thursday, 3rd October 2024.
Court adjourned.
There goes the game of cat and mouse! But it’s good the court has granted time extension. That way, no one will cry foul in the final analysis.
I agree. It is good that they have been given enough time. Perhaps a case of being given enough rope to hang oneself? They have made serious, sensational claims. If they can’t back this up with evidence beyond tribe and loose associations, this will back fire very badly on them. If they do have such evidence, whether they are granted the recusal or not, this will cast a long, dark shadow on the Judiciary. Thursday isn’t far. We’ll wait to hear.
I said it before in Zambia now its courts…arrests….courts….arrests…Politics…Politics…meanwhile loadsheding is has now been normalized…..just like throwing garbage on the streets and unsanitary living conditions have been normalized
Imagine amending the constitution to spite someone like FTJ did to KK, that is so low. You will not win, pipo will NEVER let you continue to ruin the already backward nation, you freaks!!!!!! Just get out of ZED already!!!!! upnd muyopa chani? You are the most disgraced party ever!!!!!!!
Now we have the load shedding in the Law books
By the way… where is that PILATO chap? Gagged right, you replace long-serving permanent secretaries professionals who all they know is civil service & put your cadres/ sympathizers like that fat celebrity wannabe Kangawa tv series boy & pilato, no wonder ZED is so backward
I travel a lot around the globe and African nations & i always end so depressed when i visit ZED, so poor, worse than the colonial masters left it, for example the 2 water fountains at the 2 roundabouts on so called the best famous Cairo road do NOT EXIST, i am told they keep on stealing the water pumps.. imagine!!! No water fountains, who bewitched you?????
That FINDECO house can collapse any time, i do NOT even go to the CBD any more when i am in ZED, ifiko everywhere, iloba in the pavements, drainage systems are non-existent, i can mention more, so sad & all you do is to arrest one another, Zambia i give up!!!! Muleyenda mwebantu, go just closer to your nation ( RSA ), even Harare & see how progressive they are, copy & paste you *****s like KK used to say!!!!
It is even now worse, you clever deceived ZEDIANS voted villagers in power ooooh my God