ConCourt refuses to stop ECZ from conducting Kabushi, Kwacha parliamentary nominations
By Mwaka Ndawa
THE Constitutional Court has declined an application by Joseph Malanji and Bowman Lusambo to stay ECZ’s decision to prevent them from filing in their nomination papers to re-contest the Kwacha and Kabushi parliamentary by-elections respectively because their election was declared invalid by the same court.
Constitutional Court judge Palan Mulonda who delivered an extempore ruling at 17:40 hours on Thursday ruled that no injustice will be occasioned to Malanji and Lusambo if ECZ’s decision is not hated and the court is competent to determine the matter before the scheduled date for elections.
“This court is alive to the fact that their apprehensions stem from the fact that both applicants who are potential candidates in the September 15 by-election will be politically ruined in that even if they were successful in the main matter nominations would have passed and elections would have been held, rendering the whole matter academic,” judge Mulonda said. “The matter at hand is capable of being determined and concluded way before the said election, a scenario that has not in any way prejudiced the applicants. I dismiss the applicants’ application for stay of execution.”
Judge Mulonda ruled that the court will on September 6 this year proceed to determine whether the Electoral Commission of Zambia (ECZ) has the powers to interpret the Constitution and declare the duo ineligible to re-contest the Kwacha and Kabushi parliamentary by-election after the Constitutional Court endorsed the nullification of their election in the August 12, 2021general election by the High Court for engaging in electoral fraud and malpractices.
On August 24, 2022 the electoral body through it’s corporate affairs manager, issued a press statement indicating that it would not accept nomination of candidates who caused a vacancy in the national assembly as stipulated by Article 72(4) of the Constitution.
However, Malanji and Lusambo commenced a law suit against the State and the ECZ, seeking a determination on whether the decision of the electoral body datedAugust 24, 2022 was illegal, null and void.
They wanted the court to determine whether they were eligible to contest the parliamentary by-elections slated for September 15, 2022.
The two were also seeking a determination on whether fresh nominations should be conducted to allow them participate in the by-elections.
Lusambo and Malanji wabted the court to clarify what is meant by causing a vacancy in the National Assembly as stated in Article 72 of the Constitution.
In their affidavit in support of originating summons the two argued that ‘causing a vacancy’ does not mean ‘nullification’ and that ‘nullification’ is not causing a vacancy as interpreted by the ECZ because only the Constitutional Court can interpret the provisions of Article 72(4) referred to.
“Unless stayed by this court the decision of the ECZ may be carried out and the applicants may be blocked from participating in the elections and may not only be discriminated but disenfranchised,” the duo said. “The decision is illegal on the face of it, this court can stay the execution of the said decision pending final determination of the matter before the court. Unless the power to interpret the Constition is expressly given to them, the respondents have no jurisdiction to interprete the law to disqualify a candidate who has lost a seat in an election.”
They said the ECZ had exceeded its constitutional mandate and authority by interpreting the provisions of Article 72 (4) of the Constitution.
“The respondents have no mandate to interpret the Constitution and they cannot on their own disqualify a candidate who lost a seat through an election petition,” Malanji and Lusambo insisted. “The Consitution is very clear in that it has prescribed the powers of the Constitutional Court as well as the mandate of the ECZ.”
They added that the court did not disquality them from contesting in the by-election and the ECZ in its press statement has acted in excess of its mandate.
“The Constitutional Court has jurisdiction to determine the matter as it is the only institution mandated by law to either disqualify a candidate at the time of nullification of his parliamentary seat or to interpret the provisions of the Constifution,” said Malanji and Lusambo.
Judge Mulonda ordered the respondents to file their response by Monday and further indicate that the court will render an abridged judgement on September 7.