Constitutional law expert Prof Cephas Lumina has warned that the Constitutional Court’s failure to issue a reasoned decision on whether the so-called “People’s Presidential Petition” was validly or timeously submitted risks repeating the damaging situation of 2016 in Zambia. His concerns stem from events surrounding a petition purportedly challenging the outcome of last month’s presidential […]
Constitutional law expert Prof Cephas Lumina has warned that the Constitutional Court’s failure to issue a reasoned decision on whether the so-called “People’s Presidential Petition” was validly or timeously submitted risks repeating the damaging situation of 2016 in Zambia.
His concerns stem from events surrounding a petition purportedly challenging the outcome of last month’s presidential election in Zambia. On 25 August, the Judiciary confirmed that Chief Justice Dr Mumba Malila had received documents designated as “The People’s Presidential Petition” through his private email address. He himself described that mode of transmission as “highly irregular.”
The Chief Justice did not, however, state that the irregular transmission had legally invalidated the petition. In what the Judiciary called an exceptional exercise of his administrative powers, he instead forwarded the documents to the Constitutional Court for consideration of the filing question, telling the parties concerned they would hear from the court in due course regarding the situation in Zambia.
That promised judicial decision has yet to be publicly disclosed, according to Lumina. The following day, the Judiciary’s communications office announced there was “no Presidential petition before the Constitutional Court” because none had been received by the Registry. President Hakainde Hichilema was subsequently inaugurated for his second term on 1 September.
An administrative statement, Lumina argued, cannot substitute for the judicial decision to which the Chief Justice had specifically referred.
Constitutional courts exist precisely for difficult moments of this kind, he said, tasked with safeguarding the supremacy of the Constitution and providing definitive answers where disagreement between institutions or persons might endanger legal or political stability. Zambia’s Constitution assigns the court both original and final authority over interpretation of the Constitution, presidential election disputes, and questions of its own jurisdiction. Lumina described this responsibility as especially significant given Article 45’s requirement that electoral disputes be resolved not merely quickly, but fairly.
Drawing a direct line to history, he recalled that in Hichilema and Another v Lungu and Others, the 2016 presidential petition was terminated after a majority of the court held that the constitutionally prescribed period had expired, without the substantive allegations ever being adjudicated. The political consequences of that unresolved petition endured well beyond the litigation itself. At the time, the UPND refused to recognise then-President Edgar Lungu’s presidency and boycotted presidential appearances for months.
Parliament itself later recognised the problem. A 2025 constitutional amendment inserted the words “and determine” into Article 103(2), making it a requirement that the Constitutional Court “hear and determine” a presidential election petition within fourteen days, rather than allowing disputes to vanish into procedural limbo as happened in 2016.
Turning to the current matter, Lumina examined the Chief Justice’s response to the emailed petition. The 2026 Rules establish a structured filing system in which electronic filing is expressly permitted, but documents are normally processed, reviewed and stamped through the Registry’s system. Petitioners cannot simply claim that sending an email amounts to valid filing, he said, but equally the Judiciary cannot say that an empty Registry record means there is no legal question at all.
He raised particular concern about the role played by the Chief Administrator, whose letter of 25 August reported that no petition had been filed in the Registry as at a stated time. Under the Judiciary Administration Act, Lumina noted, the Chief Administrator’s functions do not extend to any matter assigned by law to a judge or judicial officer. This, he said, raises the question of what legal authority permitted an administrative statement to effectively supersede the Chief Justice’s own referral of the matter to the Constitutional Court.
Procedural rules matter, Lumina acknowledged, and election petitions require discipline, certainty and speed. He cited the Kenyan Supreme Court’s insistence that constitutional election timelines are not negotiable. But Zambia’s own Constitution, in Article 118, states that judicial power comes from the people and that justice must be done to all without undue regard to procedural technicalities. Article 267, he added, requires constitutional interpretation to promote the Constitution’s purposes and help achieve good governance.
An unresolved question over computation of time under the 2026 Rules also remains, he said, given that Article 269 excludes the day of an event when calculating short deadlines. Lumina questioned whether the Constitution’s seven-day right for election petitions had been properly computed against the Judiciary’s holiday-filing provisions.
Comparisons with Kenya and Malawi were instructive, in his view. Both countries’ courts have weighed the principle of substantive justice against procedural technicality by issuing reasoned judgments on what requirements are jurisdictional and what defects can be cured, rather than remaining silent. In Malawi’s landmark 2019 presidential election litigation, the courts did not avoid an intensely political dispute, ultimately nullifying the presidential result and ordering a new election. The significance of that outcome, Lumina said, lay not in which candidate benefited, but in the fact that the dispute was settled by the courts.
His own optimism about Zambia’s judicial preparedness, built during his participation in the Judiciary’s Electoral Dispute Resolution training programme ahead of the August elections, is now being tested, he said
President Hichilema’s inauguration is a legal and political fact, Lumina was careful to note, and no court has established that allegations against his election are true. Legitimacy, however, has both legal and public dimensions. A President who emerges from an independent judicial examination of serious electoral complaints emerges stronger, not weaker, he argued, whereas unresolved doubt over access to the courts can turn into lasting grievance, as it did after 2016.
The Constitutional Court’s silence answers none of the outstanding questions, Lumina concluded. The country deserves an official and reasoned explanation of what became of the Chief Justice’s referral, whether the court considers itself to have jurisdiction, and the legal reasoning behind its position, rather than unresolved suspicion being left to invite competing political narratives.
By Prof Cephas Lumina
Source: The Mast
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