Can An Election be Postponed?
O’Brien Kaaba
President Hichilema addressed the National Assembly on 13 September, 2024, and of the many things he discussed, one peripheral issue (and over which the government has shown least interest), has sparked national debate: constitutional reform. His rationalization of constitutional reform premised, inter alia, on the possibility of deferral of scheduled elections seems to have awakened the ghost of the infamous Bill 10. Perhaps this is a good thing as it shows that citizens are awake and would not want to be deceived into believing that narrow, partisan and short-term political interests can ground genuine constitutional reforms.
The debate has particularly centered around the import of article 52(6) of the Constitution. When all the clutter is put aside, the question seems to be, can a scheduled election (in the context of a general election) be deferred beyond the set date of the general election as fixed by article 56 of the Constitution? For ease of reference, article 52(6) provides: “Where a candidate dies, resigns or becomes disqualified in accordance with Article 70, 100 or 153 or a court disqualifies a candidate for corruption or malpractice, after the close of nominations and before the election date, the Electoral Commission shall cancel the election and require the filing of fresh nominations by eligible candidates and elections shall be held within thirty days of the filing of the fresh nominations.” Although the article gives three potential triggers, that is, death, resignation or disqualification, it is resignation that is the centre of controversy because of the ease with which it can be done.
Although the article seems to have caught popular imagination following the presidential speech, it has been the subject of debate for many years for those working in the electoral field and has already generated a sizeable amount of jurisprudence from the Constitutional Court. The concern has always been its potential to trigger uncertainty about when an election can be held, the cost of reprinting ballot papers and concomitant logistics, as well as potential instability if this were to happen at the presidential level where elections are a zero-sum game.
Several cases, trying either to get clarity or to enforce the provision ended up in the Constitutional Court. Initially, the Constitutional Court took a simplistic view and considered even the withdraw of an independent candidate from the race, after filing of nominations, as constituting resignation and hence necessitating the cancellation of an election.
However, in the case of Governance Elections Advocacy Research Services Initiative Zambia Limited v Attorney General and Electoral Commission of Zambia 2022/CCZ/0020, the Constitutional Court tried to narrow down the scope of the article and water down some uncertainty created by its earlier decisions. It held that a candidate could only withdraw from the election before the close of the nomination period. If a candidate withdraws after nominations, the Electoral Commission was not obligated to cancel the election. This was a significant point in clarifying the law and bringing certainty.
However, as the Court noted, another strand of article 52(6) could still cause the cancellation of an election. That is, where a candidate sponsored by a political party resigns after the close of nominations but before the holding of an election. The Court noted: “For the avoidance of doubt, we wish to state that in terms of Article 52(6) of the Constitution, where a political party sponsored candidate for election as a Member of Parliament resigns after the close of nominations but before the election date, the Electoral Commission is obligated to cancel the election and call for fresh nominations from eligible candidates and call for fresh elections in accordance with Article 52(6).” From the judgment of the Constitutional Court, it is clear that an election can be deferred where a party sponsored candidate resigns. The law does not set any limit of how many times a party sponsored candidate can resign, theoretically leaving the election at the mercy of party candidates.
The concern about article 52(6) from this angle, then, is not just an abstract or speculative issue but has materialized several times, at least at the level of local government and parliamentary elections. Although this has not happened at the presidential level, there is nothing immunizing presidential elections from the potential uncertainty of the clause.
The article has also been the subject of several recommendations for reform by many local and international election observers.
In 2021, for the example, the European Union Election Observation report noted: “If a candidate in any constituency dies, resigns or becomes disqualified before the election date, the ECZ is obliged by law to cancel that election and restart the entire process. This entails uncertainty for the holding of elections and unnecessary additional costs for both candidates and the ECZ.” To avoid this uncertainty, the EU report recommended amendment of the clause.
Based on article 52(6) of the Constitution and its interpretation by the Constitutional Court, it is clear that the Electoral Commission is under a duty to cancel an election where any of the three circumstances in the clause are met, regardless of the date for the general election.
[The author teaches law at the University of Zambia]
At last someone writing some sense on the matter unlike Sangwa and others being ignorant and talking rubbish.
Exactly.
This is what was expected of Mr. Sangwa, given that he boasted of having LLB attached to his name. His reaction, however, was not different from what is expected of a political carder.
Fantastic and simplified explanation Dr. Kaaba sir. Am just wondering John Sangwa’s brain function.
Iwe lacuna lover supporting this wamuyayaya nonsense from your uncle. Zambia does not belong to him. He has done too much damage to our country. Apa so, my phone is on 1% battery. You are very lucky I was going to tell you off properly but phone is about to die
Vote wisely in….damn. phone yazima.
SoBitch just shut up with your Defunct TuPF criminals what do you know when zayellow Lubinda condemned the same article as Minister of Justice then?
Vote wisely vote for HH7 in 2027/31
This is a sober argument compared to one lawyer ‘s narrative of dreaming.
The argument is devoid of innuendo,name calling and patronage.
When you earn a name don’t spoil it by making unresearched pronouncements. We know HH does his rear h before saying anything. Sangwa is riding on his past glory.
To show Zambians how bad the PF intentions were, let HH for instance, bring back bill ten and say to Zambians; “I WILL SIGN IT WITH MY EYES CLOSED”! Watch how PF will react.
Praise singers awe mwandi.
Iwe naiwe Musonda belenga and go to the actual judgement bachitile cite ba kafindi Kaaba. Limbi chisungu chayafya ba translator epo baba ku ma court kuti waposa ko ka ngwee ba chita transcribe Judgement muchibemba so that waufukisha.
“However, as the Court noted, another strand of article 52(6) could still cause the cancellation of an election. That is, where a candidate sponsored by a political party resigns after the close of nominations but before the holding of an election. The Court noted: “For the avoidance of doubt, we wish to state that in terms of Article 52(6) of the Constitution, where a political party sponsored candidate for election as a Member of Parliament resigns after the close of nominations but before the election date, the Electoral Commission is obligated to cancel the election and call for fresh nominations from eligible candidates and call for fresh elections in accordance with Article 52(6).” From the judgment of the Constitutional Court, it is clear that an election can be deferred where a party sponsored candidate resigns. The law does not set any limit of how many times a party sponsored candidate can resign, theoretically leaving the election at the mercy of party candidates.”
This is what lawyers call legal opinion. Facts predicated on law. Well articulated.
Kaaba seems to be agreeing with HH and his narrow UPND partisan agenda of doing the very things that UPND stubbornly refused to do under Bill 10. But he is forgetting that no responsible country, its courts and election agents like ECZ can allow for an election to be postponed for as many times as to allow one individual to rule for as many as 8 or 9 years, as HH was suggesting. Kaaba, just like HH, need to be responsible enough.
Please where you are wise. Open your ears. The man has cited court cases that bring out what the President Suggests. He even states inhis opinion the crooks of where he thinks the Concourt fails.
This is a legal opinion by a lawyer at least.