THE Constitutional Court yesterday threw out preliminary issues raised by former President Edgar Lungu in a petition in which his eligibility to contest future elections is being challenged.
Following the dismissal of the preliminary issues in which he wanted the petition to be quashed, it means the petition will be heard.
This is in a case activist Michelo Chizombe seeks to challenge Mr Lungu’s participation as Patriotic Front (PF) presidential candidate in the August 12, 2021 general elections and also his eligibility to participate in future elections.
Mr Chizombe argues that Mr Lungu already served two terms of office and therefore ineligible to contest future elections.
In the petition, he has cited Mr Lungu as first respondent while Electoral Commission of Zambia (ECZ) and Attorney General Mulilo Kabesha are second and third.
The petitioner contends that Mr Lungu first took part in elections as President first under the 1991 Constitution and secondly under the Constitution of Zambia as amended under Act number 2 of 2016.
Mr Chizombe seeks a declaration that ECZ’s inclusion of Mr Lungu on the 2021 ballot and his subsequent participation in the poll was unconstitutional.
He also wants a declaration that the former head of State is disqualified to contest a presidential election under the current Constitution as read with the repealed Constitution as amended.
Mr Chizombe further wants the court to order that Mr Lungu is ineligible to seek presidential office for a third term.
But in Mr Lungu argued that the same court already pronounced itself on the issue raised by the petitioner and that he will say at trial that he has not serve two terms as alleged.
He contended that Mr Chizombe had an opportunity to raise the contents of his petition when the matter was before the same court in three different petitions but never did so.
ECZ denied breaching the Constitution as alleged and that it abided by requisite laws for processing nomination for presidential candidates.
But Mr Lungu later raised preliminary issues on a point of law urging the court to dismiss the petition for being Res judicata, which means that a lawsuit may not be litigated once it has been judged on the merits.
The lawyer contended in his notice of mission to raise preliminary issues that the court had no jurisdiction to rehear the same issue because previous judgements concluded the issue of his eligibility.
But the court dismissed the preliminary issues and ordered that the petition be heard on its merits because the questions of law to be determined in the matter are highly contested.
“The issues raised in the petition must therefore be allowed to be addressed on the merits at trial,”.
Judge Mudford Mwandenga, who read the judgement on behalf of the full bench, said the preliminary issues are dismissed because there were contending positions taken by the parties in the petition which need to be heard.
He said the issues raised in the petition are not suitable for determination on a point of law [as requested by Mr Lungu] under the procedure set out in that order 14A.
”For that reason, the notice of motion is dismissed. The matter is sent back to the single judge to schedule the petition for hearing,” Judge Mwandenga said.
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