Alot has been talked about regarding this subject following a spate of resignations and withdrawals of resignations letters by some UPND Councilors in Western and Southern Province respectively.
In as much as the withdrawal of the resignations from these councilors is morally right as it saves the country, the Commission and other electoral stakeholders the much needed resources such as money, time and energy and mateials to engage in a by-election, there is no law, currently, that support a withdraw of a resignation letter or decision once put in writing to relevant authorities, from them.
Many people have inquiried from me whether the law, as it stands today, allows a resignee to rescind his/her decision once made and submitted to the relevant authorities.
My honest response is that the Constitution does only allow a resignee to tender his/her resignation letter, in writing within 30 days, to the Mayor/Chairperson and the Town Clerk or Council Secretary is mandated by law to, within 7 days, in writing, inform the Commission of the existence of the vacancy.
Just like in the case of the Speaker of the National Assembly, his/her role is to inform the Commission, in writing within 7 days, of the existence of a vacancy in the National Assembly for the purposes of the Commission to set up a date, time and place to fill in the vacancy within 90 days of its due in accordance with the law.
The Commission does not wait for the possibility of a resignee to change his/her mind and or rescind his/her decision to resign for it to set the dates for holding of such a by-election or does the Commission engage in negotiations with the resignees.
The mandate of the Commission (Art 57(2) and (3) is to fill in the communicated vacancies to it by the Speaker and or the Council through the Town Clerk or Council Secretary (Art 158), period while the Speaker and/or Mayors/Council Chairpersons’ roles are to receive the resignations (Art 157(2b) pass them on to the Town Clerks or Council Secretaries whose mandates are inform the Commission within 7 days of the existence of a vacancy in the National Assembly and or the Council.
There is no such law/clause/section in Zambia, either in the Constitution or in the electoral laws that gives power to the Commission or the Mayor/Council Chairperson or Town Clerk/Council Secretary to accept or reject a withdraw of a resignation letter or decision from the resignee submitted in writing but the law mandates that that vacancy be filled within 90 days of its due, period.
However, only resignations made verbally like it was made by the Kanyama ward 10 UPND councilor during the mayoral by-election held about 2 years ago in Lusaka or those resignation letters that don’t reach the Commission, can be ignored or can’t be filled up meaning there were no resignations.
But the guidance from the Commission that resignnees can still change their mind and rescind their resignations within the 30 days notification period has created not only a constitution debate but further confusions in the electoral process and has cretaed the casualisation of these resignations .
This is because one day, the Commision will find itself receiving a withdrawal letter at a time it least expects or in a state of indecision as resignees do a “resign and withdrawal and resign again tricks” on it as is the case with Nangweshi ward councilor in Sioma Constituency of Western Province.
With this confusion already emerging and without a legal challenge yet from stakeholders against the Commission’s guidance that resignees can rescind their decisions within the 30 days notification period, it is a “wait and see” how this guidance outside the law will perform.
I submit!
McDonald Chipenzi, Electoral Expert.