Zambia's Constitutional collision - or collusion?

Zambia may be heading towards a constitutional confrontation of its own making.

On September 1, President Hakainde Hichilema is expected to be sworn in for a second term following his victory in the August 13 presidential election. But before that ceremony takes place, a far more fundamental question remains hanging over the election: was the opposition given a meaningful opportunity to challenge the result in court?

The events surrounding the attempted filing of the presidential election petition raise questions that cannot simply be wished away.

On Tuesday, Chief Justice Dr Mumba Malila confirmed that he had received an electronic copy of what has been described as the "people's presidential petition" at his private email address.

The petition challenges the election result.

Its transmission to the Chief Justice did not happen under normal circumstances. The courts had reportedly been closed indefinitely, opposition lawyers could not access the Constitutional Court Registry and court officials were unavailable to receive the documents.

Faced with those circumstances, the lawyers sent the petition to the Chief Justice.

Dr Malila described the method of filing as "highly irregular", but crucially, he acknowledged receiving the documents and referred them to the Constitutional Court to consider whether they could properly be accepted.

Then came the extraordinary contradiction.

The government maintained that the inauguration would proceed because no presidential election petition had been filed within the constitutionally prescribed seven-day period.

And therein lies the constitutional dilemma.

How can a citizen be told that the law gives them seven days to challenge an election, only for the State to close the institutions through which that right must be exercised before the seven days expire?

A legal deadline cannot sensibly become a trap.

If the courts are open and a litigant simply fails to file within the prescribed period, the consequences are obvious. But where access to the court is obstructed by circumstances beyond the litigant's control, the question becomes entirely different.

The State cannot logically create an obstacle to the exercise of a constitutional right and then rely on the consequences of that obstacle to defeat the right itself.

That would turn the law into a mechanism of procedural entrapment.

There is another uncomfortable question.

If the Chief Justice — the head of the Judiciary — confirms that he received the petition and its accompanying documents and subsequently referred them to the Constitutional Court, on what basis can another arm of government simply declare that no petition was filed?

The Chief Justice has not ruled that the petition was validly filed. Nor has he necessarily ruled that it was invalid.

Instead, he has referred the matter to the Constitutional Court.

That is precisely what should happen in a constitutional democracy: the court should decide whether the unusual method of filing satisfies the law.

Not the Executive.

Not political parties.

Not supporters of the incumbent.

And certainly not commentators on social media.

The Constitutional Court exists precisely because disputes of this nature require judicial determination.

The irony is impossible to miss.

The opposition was told that if it was aggrieved by the election result, it should go to court.

It attempted to do so.

When the ordinary route to court was allegedly unavailable, it found an alternative route to place the documents before the head of the Judiciary.

The Chief Justice acknowledged receiving them and sent them to the Constitutional Court.

Yet the government now says there is no petition.

That is a constitutional collision waiting to happen.

Or, more troublingly, it raises questions about whether different arms of the State are moving in fundamentally different directions.

The issue is bigger than Hichilema.

It is bigger than the opposition.

It is bigger than the August 13 election.

The real issue is whether constitutional rights remain meaningful when exercising them becomes politically inconvenient.

An election petition is not an ordinary commercial dispute. It concerns the legitimacy of the government itself.

That is why the law provides a specific period within which an aggrieved presidential candidate can challenge the result. The purpose is not merely to create a deadline. It is to provide a genuine avenue for judicial scrutiny of an election.

If that avenue is effectively closed on the final day, the constitutional guarantee becomes hollow.

And this is where Zambia's political leadership should exercise restraint.

There is no embarrassment in allowing the Constitutional Court to determine whether the documents received by the Chief Justice constitute a properly filed petition.

If the court concludes that they do not, the matter ends.

If it concludes that they do, then the petition should proceed in accordance with the Constitution.

What would be dangerous is for the Executive to pre-empt that judicial determination by proceeding with an inauguration on the assumption that the petition does not exist.

That would create the appearance that the outcome has been predetermined before the Judiciary has had an opportunity to pronounce itself.

And appearances matter enormously in constitutional democracies.

President Hichilema and his supporters have repeatedly argued that anyone dissatisfied with the election should use the courts.

That is a reasonable position.

But the principle must be applied consistently.

You cannot invite your opponent into the courtroom and then close the doors when he arrives.

Nor can you tell someone that they have seven days to exercise a legal right, prevent them from accessing the prescribed mechanism during that period, and subsequently argue that the right expired because they failed to use it.

That would be an extraordinarily dangerous precedent for Zambia — regardless of who occupies State House.

Today it may benefit an incumbent whom many citizens support. Tomorrow, the same precedent could be used against an incumbent whom those same citizens oppose.

Constitutions are not designed to protect governments from inconvenient litigation. They are designed to protect citizens from arbitrary government power.

That is why the question before Zambia should not be "Who won the election?" alone.

It should also be:

Was the losing side given a genuine and legally meaningful opportunity to have its allegations tested by an independent court?

If the answer is yes, let the court demonstrate it.

If the answer is no, then Zambia has a much bigger problem than an election dispute.

It has a constitutional crisis.

And if the Judiciary is now being asked to determine whether an election petition exists while the Executive simultaneously declares that there is no petition, then the country needs judicial clarity urgently.

The safest course is therefore remarkably simple:

Let the Constitutional Court decide.

If Hichilema's victory is as secure as his supporters insist, allowing the court to determine the filing issue should pose no threat to him.

But proceeding with an inauguration while the Judiciary is still considering whether a presidential election petition was properly placed before it risks creating the perception that the Executive is attempting to outrun the Constitution.

That is not a victory for democracy.

It is a dangerous constitutional precedent.

And Zambia — like every democracy — should be very careful about the precedents it creates when it believes the political stakes are too high to follow the rules.