The Law with Moses Yamishi

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The Constitution is the Supreme Law of the Land in this Republic. It has on many instances trumped other laws and given ...
07/08/2022

The Constitution is the Supreme Law of the Land in this Republic. It has on many instances trumped other laws and given absolute jurisdiction to its provisions.

The Main issue to look at is the Power vested on The President and to be specific I am talking about The Prerogative of Mercy prescribed in Article 97 of Part VII of Chapter One of the Laws of Zambia.

97. (1) The President may, on the advice of the Advisory Committee:-
(a) conditionally or unconditionally, pardon a person convicted of an offence;
(b) substitute a less severe form of punishment imposed on a person by a court; or
(c) remit the whole or part of a fine, penalty or forfeiture.
(2) A person who is sentenced to death may request the President, either directly or through a representative, for a pardon or commutation of the sentence

This in the normal context is a little unfair as justice is concerned to the grieved families and people of those victimized in instances of murder to be precise but the Law is what it is and not what its ought to be so we proceed with it.

According to section 200 and section 201 subsection 1 (a) and (b)

Any person who of malice aforethought causes the death of another person
by an unlawful act or omission is guilty of murder.

(1) Any person convicted of murder shall be sentenced-
(a) to death; or
(b) where there are extenuating circumstances, to any sentence other than
death:

It is for this reason that I opine the restructuring of the Presidential Prerogative of mercy as it infringes justice to the deeply hurt society.

The Principles of Sentencing as can be seen in the case of R. v. EDWARD NSOKOLO.

The principles referred to are:
(1) Intrinsic value of the subject matter.
(2) Antecedents of the accused.
(3) Youth of the accused.
(4) Conduct of the accused at the trial, particularly with regard to
his plea.
(5) Prevalence of the particular crime in this neighbourhood.

The Ratio decidendi in the case of TRINITY SIABEENZU V THE PEOPLE 2014 gave direction as below.

"One of the principles of sentencing is for the purpose of deterring other would be wrongdoers from commiting similar offences, and it is perfectly proper to refer to the prevalence of an offence and to use that prevalence as a basis for imposing a deterrent sentence."

But then in a similar scenario of the 2021 presidential Prerogative of mercy, it is clearly questionable that Chapter 87 and Judge made laws were quashed. However Justitia nemini neganda est – Justice is to be denied to nobody and this should be thought of as the President uses that power vested on Him in the interest of the families of victims and the public at large as Salus populi est suprema lex – The welfare of the people is the supreme law.

By Moses Yamishi.

02/07/2021

As the day draws nigh, Let us be encouraged to exercise our Constitutional Rights and vote.
Senior Citizens and the youth, let's ensure we have our voters cards and national registration cards (NRC) ready.

The future of this great nation is in our hands. !

Moses Yamishi (LLB)

21/05/2021

HERE IS WHAT MY COLLEAGUE HAD TO SAY...

ISSUE: WHETHER OR NOT THERE ARE VALID REASONS TO NULLIFY RUNNING MATE NOMINATIONS? by Luckson Chibaye

I have been tempted to render my opinion on this interesting issue at hand though it is not advisable.🤭

It is a notorious fact that most of us are aware about the petition before ConCourt regarding allegation to nullify running mate nominations and the petitioner is alleging that the running mates did not fulfill the qualifications as posited in the Constitution of Zambia Act No. 2 as Amendment in 2016. The most important issues that I have drawn from the petition is the non payment of nomination fees and that the support of 100 registered voters from each province has not been done as well. My opinion is strictly based on what the Constitution provides for.

I must first of all point out that you cannot read the entire Constitution without acknowledging Article 1. Art 1 of the Constitution of Zambia provides for the supremacy of the Constitution and that any law that is inconsistent with its Provisions is void to the extent of the inconsistency.

With the forgoing issue at hand, Article 110(2) states that: The qualifications and disqualifications applying to a presidential candidate apply to the person selected by the presidential candidate to be the running mate.
What the aforementioned provision simply means is that all the qualifications which apply to the president will also apply to the running mate and that the all the disqualifications of the president apply to the running mate.

Furtherance, the qualifications and disqualifications of the president which must also apply to the running mate have been provided under Article 100(1) and Article 100(2) of the Constitution respectively. The two important qualifications which are in contestation are those found under Art 100(1)(I) and (J).

Pursuant to Article 100(1)(I) a person qualifies to be president or running mate if that person pays the prescribed election fee on or before, the date fixed for delivery of nomination papers and
(J) is supported by atleast one hundred registered voters from each province.

The question which stands out is, did the running mates fulfill the above Constitutional qualifications? The answer is no. Has the Constitution been contravened? Yes, Art 1(2) of the Zambian Constitution provides that an act or omission that contravenes this Constitution is illegal. Therefore, all these omissions that have been done by ECZ during this nomination process are illegal and ought to be corrected.

The rationale for all these qualifications is that a running mate is also considered to be potential president in the event that a vacancy occurs in office of the president and that in the event that the president dies automatically he/she becomes a successor, therefore, it is of Paramount importance that these qualifications are observed.

Some people have expressed sentiments that we do not have enough time, I believe that this process has been done before for Presidential candidates and really this is not a huge task, this can even be done within a period of 5 days.

In summary I would say that there is a valid proposition in the petition which ought to be attended to. Whether or not there was violation of the Constitution is the question which must be respectfully be addressed and answered by the ConCourt.

20/04/2021

He who comes to Equity must come with Clean hands...

14/06/2020

#

It is really a sad development that the government has been so desperate with BILL 10, hence they end up pushing the procedure illegally, by regazetting BILL 10 and its recommendation.

With the aforesaid, when amending the Constitution, the Bill must be gazetted 30 days before the first reading(Art 79(2)(a). From Standing Orders 99 to 125 of 2016, there is no any order which provides for a Constitutional Bill to be regazeted. What this means is that regazetting a Bill after the first reading is illegal, a bill can only be gazetted before and not after the first reading.

It is also surprising that the recommendations from the Nakachinda committee have also been gazetted, of which the Constitution expressly forbids that procedure. Article 79(6) states that nothing should be construed as to require the publication of any amendment to any BILL which have been proposed to be moved in the National Assembly. This implies that any amendments which have been proposed to an already existing BILL must not be published. Hence, publication of the recommendations from Nakachinda Committee is illegal. A Bill must not bill published together with its recommendations.

It is sad that BILL is still the order of the day when we have better issues to discuss on.

By Luckson Chibaye.

09/06/2020

. #

Parliament may have wide Jurisdiction to amend the Constitution, but not where the amendment destroys the basic features (structure) of the Constitution as seen in the Landmark Case of Kesavanada Bharati v State of Kerala

Let's not forget that The Constitution is not a majoritarian document and it wasn't rightfully adopted due to luck of proper consensus.

Rigidity is another issue not being appreciated, hence the desire of manipulation by some people.

05/06/2020

# #

20. [ ]
(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of
expression, that is to say, freedom to hold opinions without interference, freedom to receive ideas
and information without interference, freedom to impart and communicate ideas and information
without interference, whether the communication be to the public generally or to any person or
class of persons, and freedom from interference with his correspondence.
(2) Subject to the provisions of this Constitution no law shall make any provision that derogates
from freedom of the press.
(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent
with or in contravention of this Article to the extent that it is shown that the law in question makes
provision --
13
(a) that is reasonably required in the interests of defence, public safety, public order, public
morality or public health; or
(b) that is reasonably required for the purpose of protecting the reputations, rights and freedoms
of other persons or the private lives of persons concerned in legal proceedings, preventing the
disclosure of information received in confidence, maintaining the authority and independence of
the courts, regulating educational institutions in the interests of persons receiving instruction
therein, or the registration of, or regulating the technical administration or the technical operation
of, newspapers and other publications, telephony, telegraphy, posts, wireless broadcasting or
television; or
(c) that imposes restrictions on public officers;
and except so far as that provision or, the thing done under the authority thereof as the case may
be, is shown not to be reasonably justifiable in a democratic society.

Let us not be intimidated by expressing ourselves rightfully.

YOUTHS FOR ZAMBIA

M. Yamishi.

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Lusaka Street, Tembisa,, South Africa
Lusaka
1632

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+260975450931

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