CONCOURT TO RULE ON JAN. 20 ON PETAUKE CENTRAL BY-ELECTION
THE Constitutional Court has this morning reserved its decision on whether to restrain the Electoral Commission of Zambia (ECZ) from conducting the Petauke Central by-election, with the ruling set for January 20.
The application for an order was filed by Isaac Mwanza, Executive Director of the Zambian Civil Liberties Union (ZCLU), who is challenging the constitutionality of the actions by the National Assembly to determine a vacancy that has triggered a by-election
Mr. Mwanza argues that the National Assembly of Zambia violated and contravened the Constitution by declaring a vacancy in the office of a Member of Parliament for breach of a code of conduct – an action he contends is the exclusive role of the judiciary and tribunals appointed by the Chief Justice.
During the hearing, Mr. Mwanza urged the Court to issue conservatory orders to restrain ECZ from conducting the by-election and argued that such orders are necessary to protect the Court’s jurisdiction to adjudicate on the alleged unconstitutional actions of the National Assembly.
But in response, ECZ argued that in the recent Belemu case, the Constitutional Court guided that ECZ is under an obligation to conduct the by-election within 90 days of receiving notice from the Speaker of the National Assembly regardless and irrespective of any legal challenges.
The ECZ cited a Supreme Court judgment where it was stated that a person can not be prevented from fulfilling its statutory obligations by estoppel.
The ECZ also relied on the recent Constitutional Court judgment in the Michelo Chizombe case, which established that court decisions remain binding unless overturned or expired.
Mr. Mwanza countered by clarifying that his petition does not aim to prevent the ECZ from performing its statutory duties generally but is seeking an order to restrain the ECZ from conducting a by-election arising from a purported vacancy that is unconstitutional and unlawful.
He said the principle of no estoppel against statute is often invoked when a party attempts to prevent a statutory body from exercising its statutory functions by relying on prior representations or conduct but that the Applicant is not relying on any representations or past conduct of the Commission.
He also distinguished the current case before the Court from the Belemu case by arguing that a vacancy in the Belemu case had resulted from a criminal conviction and sentencing by a court while in the present case, no valid vacancy exists and the Speaker’s actions contravene the Constitution.
AND both the Attorney General and the National Assembly argued that Mr. Mwanza should have first addressed his concerns with a parliamentary committee rather than petitioning the court.
They also contended that the Court can not issue an injunction to stop an election.
In his rebuttal, Mr. Mwanza dismissed these arguments, stating that there is no legal requirement for a person to go to a parliamentary committee in matters of constitutional breaches by the National Assembly.
He also emphasised that he is seeking a conservatory order, which is a constitutional remedy and different from an injunction.