Some legal minds have questioned the delay by the Chief Justice in Certifying a matter in which the DPP is seeking the nullification of the fresh presidential poll following the High Court ruling that declared the appointment of some MEC Commissioners as invalid.
Judge Dingiswayo Madise ruled that the matter as filed by DPP lawyers was raising constitutional questions especially section 75 that deals with composition of MEC Commissioners and their legality to preside over electoral matters, therefore the matter be sent to the Chief Justice for Certification.
According to Order 19, rule 3 and 4 of the High Court Procedure Rules 2017, “the certification by the Chief Justice SHALL be made within 7 days from the date a proceeding is filed before or a referral to him, for such certification”.
However, after the elapse of the 7 days some few weeks ago, legal experts have questioned the delay by the Chief Justice to certify and appoint judges to hear the matter as a constitutional court.
“The ‘shall’ in rule 3 means its mandatory, and rule 4 says it is an administrative action not judicial. If it was judicial he could have had powers to overule the high court judge on the certification”, argued one private practice lawyer.
Another law expert from the faculty of law at the Catholic University argues; “A court has referred it to him as an administrative officer, he has no choice but do it. Now look how selectively he has chosen to apply the law like the way he did with the nullification of the 2019 presidential poll results
“As to whether the Chief Justice might be found to be in contempt of court he argues that “whether he is in contempt or not depends on whether a referral is an order or not, thus far this is subject for further debate on its implications”.
The Chief Justice is expected certify and appoint Judges to sit as a Constitution Court on the matter.