ConCourt removes Lungu from electoral petition
By Staff Reporter
The Constitutional Court has ordered the removal of President Edgar Lungu from the proceedings of a petition which the UPND filed in court in which they were contending that the Head of State breached the law when he occupied the Office before he was sworn in.
Constitutional Court judge Palan Mulonda ordered that President Lungu be misjoined from the proceedings because UPND leader Hakainde Hichilema and vice-president Geoffrey Mwamba wrongly cited him in the case.
Judge Mulonda says President Lungu will be replaced in the proceedings by the Attorney General who represents the State in civil matters to which the government is a party.
The judge says there would be no prejudice occasioned to Hichilema and Mwamba by removing the President because the declarations they are seeking do not affect the direct interests of President Lungu and that they can be ably handled by the Attorney general in any event.
Judge Mulonda added that the Attorney General was the proper party to be sued.
Hichilema and Mwamba petitioned the court and want the court to declare that the President Lungu breached the law for performing functions of the Office of President from August 19 to September 13, 2016.
The petitioners are also seeking a declaration that the Speaker of the National Assembly of Zambia breached the provisions of Article 104 (3) of the Constitution by failing to perform the functions of the Office of President from August 19 to September 14, 2016.
Hichilema and Mwamba sued President Lungu and the Attorney General but the latter asked the court to misjoin the President because he enjoyed immunity from any legal and criminal proceedings in respect of any acts performed in his personal capacity.
According to written submissions filed in court, the State argued that the two petitioners did not disclose any cause of action against President Lungu upon which liability could be attached or which could establish a judgment against him.
And lawyer for Hichilema and Mwamba, J. Chimankhata urged the court not to remove the President from the proceedings, saying the proceedings did not fall within the scope of civil proceedings so as to exempt President Lungu from the proceedings.
He stated that even assuming that the petition did not fall within the scope of civil proceedings, the immunity conferred on a Head of State under Article 98 of the Constitution was not absolute as the immunity was in respect of an act or omission done in the President’s private capacity, praying that the President remains a party to the proceedings.