Hichilema and Another v Lungu and Another (2016/CC/0031) [2016] ZMCC 4 (5 September 2016), Minority Judgement

On September 5th 2016, there was tension in the packed Constitutional Court. Three out of five Constitutional Court judges (i.e., Anne Mwewa-Sitali, Mugeni Mulenga and Palan Mulonda) dismissed the election petition of Presidential candidate Hakainde Hichilema and his running mate Geoffrey Mwamba, on the grounds that the time for hearing the petition had lapsed. The President of the Court Justice Hildah Chibomba, and Justice Margaret Munalula dissented. Dividing the Court was the interpretation and effect of Articles 101(5) and 103(2) of the Constitution of Zambia. Articles 101 (5) and 103 (2) provide that the Constitutional Court must hear a Presidential election petition within 14 days of the filing of the petition. The Constitution is silent as to what happens when the hearing of a petition exceeds the 14-day period. While the majority of the Court dismissed the petition on the grounds that the 14-day period had elapsed, the minority dissented, and held that maintaining the time frame was unworkable, and that the petitioners had a right to be, and therefore should have been, heard. This comment discusses the dissenting opinion of the judgment. It focuses primarily on Justice Munalula’s dissent since Justice Chibomba’s judgement largely echoed Justice Munalaula’s dissenting opinion