Bwacha North petition ‘survives’, trial on
By Thandizo Banda
THE Kabwe High Court has ordered that trial will proceed in the election petition in which NRPUP Bwacha North candidate Walinase Nyirongo is asking the court to declare him the rightful winner and not UPND’s Percy Chato, citing irregularities in vote tallying.
Nyirongo has cited Chato and the Electoral Commission of Zambia (ECZ) as first and second respondents, respectively.
The matter came up on Monday for the hearing of preliminary issues before Justice Ian Mabbolobbolo.
Lawyers for Chato Sam Mujuda and Mutakela Lisimba asked the court to dismiss the petition with costs for want of jurisdiction and to vacate the ex-parte order.
Mujuda and Lisimba argued that the petition was filed out of time in breach of Rule 17 of the High Court Election Petition Rules and that the petitioner had failed to file a list of authorities and bundle of documents as required by the rules.
They submitted that non-compliance was fatal and the court could not properly assume jurisdiction.
In response, lawyers for Nyirongo, Mehluli Malisa and Praise Nyirongo, opposed the application and asked the court to dismiss it with costs.
They argued that the petition was filed within the time prescribed by the Constitution and the Electoral Process Act, that any procedural lapse was curable and not jurisdictional.
Nyirongo was ready to regularise the record by filing the required list of authorities and documents.
Dismissing the petition at a preliminary stage would deny Nyirongo the right to be heard on the merits, contrary to the interests of justice.
Justice Mabbolobbolo ruled that it was in the best interest of justice that the petition be heard and determined on its merits rather than dismissed on technical grounds.
He dismissed the application to dismiss the petition for want of jurisdiction but vacated the ex-parte order and ordered Nyirongo to ensure all required documents, including the list of authorities and bundle of documents, were properly filed and served before 10:00 hours yesterday, when trial was expected to begin.
