So there has been the question going round as to whether FAZ has committed contempt by not halting the FAZ provincial elections and indeed the whole election process following a court process. There are two schools of thought here and I will quote authorities on either side when I can.
In the red corner we have the lawyers representing the Zambian icon Great Kalu himself i.e. Mr. Gilbert Phiri of PNP Advocates in Lusaka and Mr. Lewis Mosho of Lewis Nathan Advocates in Lusaka. The lawyers, on behalf of Damiano Mutale and Patson Lusaka, have reported the FAZ Secretary General to the Inspector General of Police suggesting “disobedience of court order”.
In a letter dated 13th March 2020, the lawyers wrote a letter to the Inspector General of Police which reads: “Our clients commenced an action in the High Court for Zambia against the Football Association of Zambia (FAZ) on the 11th March, 2020 wherein the High Court for Zambia made an Order staying the FAZ elections scheduled to run from 7th March to the 28th March, 2020. This High Court Order as served on the FAZ elections Chairperson Ronald Hatoongo. Our clients have instructed [us] to notify you that notwithstanding service of the Court Order aforesaid, FAZ has decided to avoid compliance with and has failed and or neglected to obey the said Court Order and continued to hold elections in Ndola and intend to continue holding elections on Saturday the 14th March, 2020 in Mansa, Luapula Province and so on thereby undermining the course of justice. Our clients also noted this morning that FAZ deliberately decided to close their offices on Friday the 13th March, 2020 at Football House in its continued deliberate conduct to avoid receipt or service of all documents in the Court action to frustrate the course of Justice. Our clients note, as you will agree with them, that the FAZ conduct to avoid and to refuse compliance with the Court Order is a CRIME under the Penal Code (see, inter alia, section 116- contempt of court, and section 127 – disobedience of lawful orders0 as it amounts to disobedience towards a Judge or Courts and undermines Judicial Proceedings. Our clients are also of the view (and you will also agree with them) that it is a statutory duty of our Police Service to prevent the commission of offences, to detect and bring offenders to justice and to apprehend all persons for whose such apprehension sufficient grounds exist as it is in this case. We therefore have instructions to request our (as we now do) Police service to sercure compliance with this Court Order by ensuring that no FAZ elections are or continue to be held until a contrary or further Order of Court. We advise that we have strong instructions to pursue other methods of securing compliance with the Court Order including private prosecution of offenders under the Criminal Procedure Code. [Signed by Lewis Mosho]”
The interesting thing in this letter is that it suggests that the order was served on FAZ elections Chairperson Ronald Hatoongo.
Let us remind ourselves on how events unfolded. On 11th March, 2020 around 18:00hrs, new spread online that the Ndola High Court had issued an ExParte Order, directing that the FAZ elections, which started in the provinces around 7th March 2020 and are expected to end on 28th March 2020 when they culminate into the presidential elections be halted until the substantive matter is heard and determined. The same night I reported that the Football Association of Zambia has made an application to set aside the ExParte Order made by the Ndola High Court staying the FAZ Annual General meeting (AGM) and the FAZ electoral Process (including the Presidential Elections). And the following day, the provincial elections on the Copperbelt went ahead. At the time I posited that: “… when you post an Ex-Parte Court Order on Facebook, even if the respondent sees it, it doesn’t amount to the respondent being served the self-same order. Consequently, its relief effect cannot be enjoyed as enforcement of the order only follows service.”
I was later to gather that when Damiano Mutale and Patson Lusaka got the court order, they decided rather to play to the gallery by publishing the order on Facebook forgetting that they had not yet served it on FAZ. Further they miscalculated that the following day was a holiday and FAZ offices would be closed. It was better to hide the fact that there was a court order and just show up at FAZ to serve it. In the end on 12th March, Damiano, in the company of Elijah “Shenko” Chileshe, the suspended FAZ Committee member and Gift Chaipa, the NAPSA team manager, arrived at Levy Mwanawasa to serve the Court Order on Adrian Kashala the FAZ Secretary General. Kashala, who had been there earlier that day, had just left minutes before the trio arrived with a clutch of police officers. I understand Kashala had just left for another province to start preparing for the elections that would take place on Saturday.
So Damiano decided to serve Hatoongo the Electoral Committee Chairperson.
On Friday 13th, the FAZ secretariat was closed as staff where given a day off following the various holidays during the week when staff had to work. Monday was a holiday being a day following Women’s Day which fell on a Sunday but FAZ staff worked as they prepared for the Shepolopolo a.k.a. Copper Queens game against Cameroun on Tuesday. On Thursday, it was Youth Day but FAZ staff worked because there was a friendly match with Malawi. The secretariat was closed on Friday. Secretariat staff told me at the time that the decision to close the offices had nothing to do with the court order but it was arrived us earlier in the week because staff had been over-worked. More work was already scheduled over this weekend with some staff contending with provincial cup finals like in Kabwe with today while some more staff where in Johannesburg where the Under-17 girls were playing a world cup qualifier yesterday. Friday was strategically chosen to be the rest day.
Interestingly, the letter from Mosho says: “Our clients also noted this morning that FAZ deliberately decided to close their offices on Friday the 13th March, 2020 at Football House in its continued deliberate conduct to avoid receipt or service of all documents in the Court action to frustrate the course of Justice.” Why would the lawyers say FAZ “avoided receipt” if they believe that the order was regularly and correctly served?
The question is: Is the Electoral Committee part of FAZ and can it be served on behalf of FAZ? A casual perusal of the ExParte Order shows that the plaintiffs identified the General Secretary as the representative of FAZ being the CEO. It would seem that to properly serve FAZ one had to serve the GS or at least leave it with his officer which includes the registry. It didn’t have to be face to face with the GS.
I feel that it was wrong to serve the Electoral Committee because it is not part of FAZ despite the title of the position. It’s like suggesting that our good leader FAZ Patron President Edgar Chagwa Lungu is part of FAZ just because his title is FAZ Patron. Serving the Court Order to President Lungu because he is FAZ Patron doesn’t amount to serving FAZ. Similarly serving Hatoongo does not amount to that. So for me the service is irregular and there should be contempt. But the final say will be by the courts when the parties meet for inter-parte hearing or if the plaintiffs start contempt proceedings, as he case may be.
The police have not issued a statement on this matter. So we don’t know what they make of this issue raised by Damiano’s lawyers.
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TRIVIA: Did you know that Damiano Academy, which Damiano Mutale says he is Secretary General of attended the elections at Levy Mwanawasa Stadium and voted? Should the academy also be cited for contempt for defying its leader and owner by attending a meeting he was trying to stop? What does it say about the strength of Damianos case of councilors are attending the elections and ignoring court orders and letters to FIFA and NSCZ? Is the tide against Damiano and with FAZ?
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The other school of thought is more in line with my personal opinion. In the blue corner we have FAZ and FIFA who believe that there is no contempt of court. FAZ believes that there is no contempt because they have not been served the order. But FIFA believes that there is no contempt because the court appearance shouldn’t there in the first place.
I will discuss the letter from FIFA which Mosho responded to in my next article. Until later today I will stop here on this Contempt issue.
Meanwhile, it is my view that, so far, Mosho and Phiri have done a great job for their clients and they will be worth every coin that they will charge. There letters and arguments are what I would want my lawyers to put across. Sometimes cases are lost on the strength of the case not on the effort by the lawyers. As for Kalusha, the failure of the case may end up being more of strategy in the period between the time FIFA reduced his sentence to end of last year. It wont be because of what he has done between the day of nominations to now. The men have fought. His lawyers have fought. His communication could do with a little more boost and force especially on the nitty-gritty on issues. Propaganda will excite already decided supporters but won’t win the undecided voters and the general public.
In ending I want to repeat that I am not a lawyer, I have not formally studied law and I hold no monopoly to wisdom, knowledge or opinions. So there is no need to insult me or call me Facebook Lawyer. Hahahaha I am only enjoying the gift of the garb which God gave me. This writing is simply an attempt at understanding whats happening. All opinions in here are mine. Further, I have chosen not to join either the Kalusha Bwalya camp or the Kamanga camp because I am a leader in my own right and given a chance I should also have been standing as a committee member. But it is not yet time for that. So its not time to be behind others but to show leadership. My way is to elucidate matters to the masses and make my own opinions best on what I have seen, read and what I know.
