If the drama that was Hakainde Hichilema v Edgar Chagwa Lungu (2016/CC/0031) has any lessons for the continent, it is how not to adjudicate upon a presidential election petition. Three judges of the court effectively succeeded in making an unfortunate mockery of their bench and risking the otherwise good image Zambia’s electoral process has enjoyed for a few decades now. We should, however, not be too quick to cast aspersions on the court and the learned judges. In order to understand what transpired in the Constitutional Court of Zambia, we have to look at the relevant legal provisions guiding presidential election petitions.
The Constitution of Zambia (as amended in 2016) provides at article 101(2) that a candidate must garner more than 50% of the valid votes cast to be declared president in the first round of voting. Article 103(2) provides that, ‘[t]he Constitutional Court shall hear an election petition relating to the president-elect within fourteen days of the filing of the petition’. In a well-meaning attempt to rectify a mischief that has plagued many an African nation, Zambians introduced this 14-day amendment in January 2016. Prior to this amendment, such petitions would languish before the courts for years and by the time decisions were handed down, the person whose election was challenged was well into his/her term of office. The effect was that either too much uncertainty was created by the pending petition that the president could not fully perform the important functions of the office, or the petition was so overtaken by events altogether that the court’s decision was more or less predetermined. Conventional wisdom therefore required some degree of certainty to be legislated. Zambia borrowed heavily in this regard from Kenya which had only five years earlier constitutionalised a strict 14-day timeline for its Supreme Court to hear and determine presidential election petitions.
Fast-forward to August 2016 and the re-election of Edgar Lungu by 1,860,877 votes against Hakainde Hichilema’s 1,760,347 votes was challenged by Hakainde at the Constitutional Court. The petitioner and the court seem to have been oblivious of the Rules of the Constitutional Court which appear to have either been mischievously drafted or were simply the result of bad legislative drafting. The rules require the respondent to file an answer to the petition within 5 days of service and the petitioner to reply within five days of being served with the answer. Thereafter, a process of discovery is done which is followed by a status conference before the hearing can commence. These preliminary processes even if rushed consume a better part of, if not the entire, 14 days.
The above constitutional provision read together with the rules of the court presented an uncomfortable dilemma for the court and the petitioner. By the time the preliminary processes were dispensed with, it was 2 September 2016, the last day of the 14 days. Had the court anticipated this dilemma, and it should have by all reasonable expectations, then perhaps it would have suo motto overruled or ignored its own rules in favour of the supremacy of the constitution and set shorter timelines for the preliminary processes in order to leave a few days out of the 14 days for the hearing. Better still, the petitioners should have anticipated this scenario and moved the court to interpret the rules in light of article 103(2). The petitioners neither moved nor did the court volunteer. Both failed to anticipate the awkward position they would find themselves in.
When this dilemma was apparent, the court took the easy but controversial way out. Majority of the court held on Monday 5 September 2016 that since the constitutional 14-day timeline had lapsed on Friday 2 September 2016 before the petitioners presented their case, there was no petition to be heard. The petition was dismissed for want of prosecution. Interestingly though, the court did not deliver this decision on 2 September when the time supposedly lapsed, but on Monday 5 September after adjourning proceedings to allow the petitioner to engage new legal representation. The court therefore staged an unprofessional and unfair ambush on the petitioner because he was neither given an opportunity to present his case nor asked to show cause why the petition should not be dismissed on 2 September 2016.
While computation and interpretation of time is arguably best done literally to give some degree of certainty and finality in legal matters, presidential election petitions are not per se legal in the strict sense of the word. They traverse the realms of the legal and the political and as such care should be taken when adjudicating upon them as the political consequences can be unpredictably unpleasant.
The court would have done its reputation and the people of Zambia a favour by adopting an expansive and generous interpretation of article 103(2). The article provides that ‘The Constitutional Court shall hear an election petition relating to the President-elect within fourteen days of the filing of the petition’. The ‘devil or angel’ herein is in both what it says and what it does not say. The provision only requires the court to ‘hear’ the petition within fourteen days. The provision does not require the court to determine the petition within fourteen days, but only to hear it. Therefore, it is submitted that the constitutional requirement is met if the court commences ‘hearing’ of the petition within fourteen days of its filing. Further, no timeline is set for the court to finish hearing the petition so this process can continue for as long as the court deems fit as long as it commences within fourteen days of filing. Since the provision is silent on the time for ‘determining’ the petition, the court’s judgment could be issued anytime after the hearing is completed as there is no deadline for this. To cure the danger this interpretation poses of a prolonged process, the court ought to read the provision in light of the spirit of the constitution which is to ensure justice. Justice can neither be ensured by rigid reliance on technical provisions nor unreasonably prolonged processes, but rather by a process that enables the court to fully but expeditiously interrogate the law and the facts. Indeed, Munalula J strongly argued for such purposive interpretation in her dissenting opinion. Unfortunately, however, for the petitioner and the Zambian electorate, minority had its say while the majority had its way.
Even if the conservatives on the bench were still inclined towards a literal reading as they indeed were, one other option was still available to them. The ‘fourteen days’ as provided in the provision could have been interpreted as referring to working days of the court. As such, only week days would be computed and weekends would not form part of the computation. The final day for the court to render judgment would therefore have been 8 September 2016, that being 14 working days from the date of filing. While still grossly insufficient, it would have afforded the court a few days to at least hear the parties’ arguments even if just to give the illusion of a hearing.
The Constitution of Kenya 2010 from which Zambia supposedly drew inspiration when drafting the above provision also provides at article 140(2) that, ‘[w]ithin fourteen days after the filing of a petition … the Supreme Court shall hear and determine the petition… .’ This provision also caused almost similar tension in Raila Odinga v Independent Electoral and Boundaries Commission (2013) when the narrow electoral victory of Uhuru Kenyatta was challenged by Raila Odinga. The Supreme Court interpreted the above provision to the effect that the petitioner is not expected or entitled to reply to the respondents answer to the petition in the interest of time. While the court cannot be faulted for limiting the preliminary procedures to ensure ‘ample’ time is left within the fourteen days to ‘hear’ the petition and make a determination, this again draws attention to the gross inadequacy of the fourteen days.
These two presidential election petitions highlight the counterproductive effect of otherwise well-meaning constitutional provisions. While the mischief of unreasonably prolonged election petitions has been cured by these constitutional provisions, the flip-side has been to rob the judiciary of sufficient time to hear petitions, evaluate evidence and render judicious decisions that uphold the integrity of the electoral process and promote democracy. What the Kenya and Zambia scenarios have shown is that courts have no option but to hold what amounts to formality hearings, if at all, and make obligatory pronouncements without having the benefit of properly hearing and deliberating upon all the evidence. While these processes may be legal in the strict sense of textual law, they raise serious questions as to whether they are just and moral to the extent that politics is moral. Considering the nature of presidential election petitions and the potential implications for a country, it is indeed in the public interest for the court to have sufficient time to hear the petition, properly consider rival arguments and render its decision. This is a decision that the court should not render lightly. Perhaps it is time to reconsider our judicial approach to presidential election petitions and the legal frameworks governing them.
By Rodger Owiso