By PERPETUAL SICHIKWENKWE –
LAWYERS representing President–elect Edgar Lungu and Vice-President-elect Inonge Wina have insisted that the application by the United Party for National Development (UPND) to have ballot papers and other election materials in the custody of the court should be thrown out for lack of merit.
The lawyers have argued that the application by the UPND was problematic as it was not physically possible to move the materials to court and it was not legally tenable.
One of the lawyers, Abyud Shonga argued that the Electoral Commission of Zambia (ECZ) was by law mandated to not only have custody of the materials but also to preserve them.
This is in a matter where UPND presidential candidate Hakainde Hichilema and his running mate Geoffrey Mwamba are demanding for the nullification of the declaration that Mr Lungu and Ms Wina were duly elected as President and Vice-President, respectively.
Mr Hichilema and Mr Mwamba also sought an interim injunction that during the hearing of the petition, ballot papers and other materials used in the August 11, 2016 elections be preserved and should be in the custody of the court.
When the matter came up for hearing of the application before Constitutional Court judge Annie Sitali yesterday, one of the lawyers for the petitioners Mulambo Haimbe said the court should take custody of the election materials to ensure a fair and transparent process.
He said the issue was not about the physical location where custody was to be taken, but rather about the court gaining control of the materials.
Mr Haimbe argued that the term ‘custody’ used in the application did not necessarily mean that the materials ought to be physically brought to court and detained there, but rather for the court to take control over the subject materials even if such control was taken at premises outside the court premises.
He said it was for this reason that the issue of the Judiciary having no space could not be the basis for the court to refuse the application.
Mr Haimbe also argued that the third respondent, the ECZ, was undertaking a verification exercise by its own admission which should be stopped as there was a petition in progress.
He said the court should grant the application to avoid further meddling with election materials by the ECZ.
But defence lawyer Sakwiba Sikota argued that the summons filed by Mr Hichilema and Mr Mwamba entail the delivery of materials to the registrar of the court.
Mr Sikota said there was need for clarity as to which place, which town and whose building the materials should be taken to and not just saying to some place.
On the verification of the ballots, Mr Sikota said the UPND could not fault the ECZ for doing its statutory duty.
Ms Justice Sitali adjourned ruling on the application to tomorrow.
Meanwhile, the Constitutional Court is this morning expected to hear an application by Mr Hichilema and Mr Mwamba to have their initial petition amended.
Mr Lungu and Ms Wina’s lawyers are, however, opposed to the application on grounds that the petitioners should stick to the initial content of the petition.
Meanwhile, the Constitutional Court has set today as the date for the inter parte hearing of an application by Mr Hichilema and Mr Mwamba seeking an order that Speaker of the National Assembly Patrick Matibini acts as president pending the determination of the petition.
The UPND leaders on Friday filed a separate motion asking the court to order Mr Lungu to hand over the presidency to the Speaker pending the outcome of their petition.
But Constitutional Court president Hildah Chibomba has set this afternoon as the date she will hear from Mr Hichilema, Mr Lungu and the Speaker’s sides before making an order.