By Mwaka Ndawa
THE Constitutional Court has warned the Electoral Commission of Zambia against processing nominations for candidates who do not have requisite academic qualifications in the August 12 presidential and general elections as well as future elections to avoid violating the Constitution.
The court said so when it dismissed the petition in which losing candidate for Lundazi Constituency Colonel Bizwayo Nkunika petitioned it seeking a declaration that the Lundazi parliamentary seat be declared vacant and ordering the Electoral Commission of Zambia ( ECZ) to hold elections within 90 days.
The majority judges of the court held that Lundazi Central member of parliament Lawrence Nyirenda and the Electoral Commission of Zambia did not breach the Constitution when the electoral body allowed Nyirenda to file in his nomination for the 2016 elections without the requisite grade 12 certificate or its equivalent.
But in their dissenting judgements Constitutional Court President Hildah Chibomba and Palan Mulonda said Nyirenda ought to be disqualified as a member of parliament as he does not have the requisite academic qualifications and contravenes Article 70(1)(d) of the Constitution.
Col Nkunika had cited Lawrence Nyirenda as the first respondent and ECZ as the second respondent in the matter claiming that Nyirenda does not have the minimum academic qualifications as prescribed under Article 70 (1) (d) of the
Constitution of Zambia because he does not hold a grade 12 certificate.
During hearing, the Zambia Qualifications Authority and the Examination Council of Zambia told the Constitutional Court that the General certificate of education and other qualifications which Nyirenda submitted to the Electoral Commission of Zambia when filing in nominations are not equal to a Grade 12 certificate.
This was after they were summoned by the court to explain what constitutes a grade 12 certificate following Nyirenda’s explaination that he did not know that a grade 12 certificate is constituted by five subjects.
According to Examination Council of Zambia director and chief executive officer Dr Michael Chilala, a school certificate was an academic qualification awarded to a person who satisfies two conditions in one and the same examination (i) an individual should obtains a pass in 6 subjects, including English language and atleast one among the six subjects should be credit and (ii) A pass in atleast five subjects including English with atleast two of the five should be credit or better.
However, justices Ann Sitali, Mungeni Mulenga and Martin Musaluke in their majority judgement said a higher qualification includes any qualification awarded by a tertiary institution or a vocational institution offering skills training and is superior to a secondary school certificate.
Justice Musaluke on behalf of others said the Kabwe High Court judgment in the Sibongile Zulu case of 2016 was binding and the ECZ was bound by it therefore a tertiary, vocational or apprenticeship certificate were accepted as equivalents to a grade 12 certificate based on the said judgement.
He said Nyirenda did not breach the Constitution when he presented his General Certificate of Education (GCE) and other qualifications during the nomination for the Lundazi Central Constituency parliamentary seat in 2016.
Justice Musaluke said the electoral body processed nominations for the national assembly for the 2016 general elections based on what constitutes a grade 12 certificate or its equivalent for purposes of Article 70 (1)(d) on the basis of the High Court judgement in the Sibongile case.
“We cannot disregard the central role which the Sibongile Zulu case played in the electoral process of 2016. Nyirenda’s certificates were accepted for nomination based on other qualifications that were deemed equivalent to grade 12 certificate as notified by the ECZ,” judge Musaluke said.
He said the ECZ had an obligation to obey the pronouncement of the Kabwe High Court in the Sibongile Zulu case that a draft vocational or apprenticeship certificate would be equivalent to a grade 12 certificate.
“Nyirenda and ECZ did not contravene the provisions of Article 70 (1)(d) of the Constitution based on the interpretation of what amounted or is equivalent to a grade 12 certificate by the High Court,” he said.
He said the description by the Zambia Qualifications Authority and the Examination Council of Zambia of what constitutes a grade 12 certificate cannot apply to Lawrence Nyirenda because at the time of his nomination and election, there was a binding High Court decision upon which the electoral body acted.
Justice Musaluke said Col Nkunika did not challenge the validity of Nyirenda’s nomination or his election within seven days due to the instructions by ECZ that candidates without grade 12 certificates but had other qualifications should be accepted.
He said during nominations, candidates have been put on alert to challenge a nomination and election before any court or appropriate tribunal during a specific period.
“The constitution does not provide for a provisional nomination for purposes of elections for members of parliament nor does any other law do so by instructing returning officers to accept any candidate without requisite qualifications and indicate the word provisional on their subject of validation, ECZ added an interest depth,” judge Musaluke said
“Its mandate was to accept or reject a nomination based on the qualifications submitted by a candidate we do not expect ECZ to repeat such conduct in future elections.”
He added that Col Nkuinka’s claims regarding the contravention of Article 70 (1)(d) of the Constitution fails and is dismissed.
Judge Musaluke however indicated that the other relief that the electoral body conducts elections for Lundazi Central Constituency within 90 days remains mute.
But justice Chibomba in her dissenting judgement said she did not agree with the findings and conclusion of the majority based on the High Court decision.
She said the Sibongile case should not oust the interpretation of Article 70(1)(d) as the implication of such a decision is that a contravention of the Constitution must not arise until the court declares.
She said any Act that contravenes the constitution after it came into force should be rendered unconstitutional and illegal ab initio.
“The Sibongile Zulu case did not qualify any person in an election or member of parliament. It directed would be candidates to present their qualifications before ECZ in a manner evidencing that he or she has completed the required education programme or its equivalent,” justice Chibomba said.
Judge Chibomba ruled that the High Court shifted the responsibility to ECZ when it directed that the commission in effecting its mandate has the recourse to administratively consult with other relevant agencies, including the Examination Council of Zambia, ZAQA and Zambia police serve to ascertain the authenticity of documents presented.
She said the Sibongile case should not be a basis of allowing a person who was not eligible to contest elections and a person who does not have requisite qualifications to continue in office as member of parliament.
“This Court must be courteous in the manner it interprates the constitution because our interpretation becomes the law. The constitution is the supreme law of the land and the courts must breath life, grow and develop the constitution in order to be the requirements of an ever developing society,” judge Chibomba said.
She said ECZ’s mandate was to either accept or reject the nomination based in the qualifications submitted by candidates.
Judge Chibomba cautioned the electoral body against allowing candidates who do not have a grade 12 certificate or it’s equivalent to file their nominations.
“It has not been shown that ECZ complied with the guidelines given by the High Court in the Sibongile Zulu case. In my view Nyirenda and ECZ contravened Article 70 (1)(d) of the Constitution on grounds that the certificates Nyirenda produced during his nomination were not equivalent to a grade 12 certificate,” said judge Chibomba.
” I would have ordered that since he did not meet the requirements of Article 70 (1)(d) of the Constitution his nomination and election and continued holding of office as member of parliament is contrary to the said Article and should be disqualified from continuing to hold office.”
And justice Mulonda said the Sibongile Zulu case cannot continue to hold in view of the fact that Nyirenda does not possess requisite academic qualifications.
He said the constitution is clear on the consequences of its contravention
He said any contravention of the Constitution is illegal.
Judge Mulonda ruled that according to the evidence by ZAQA and the Examination Council of Zambia, that Nyirenda does not possess requisite academic qualifications, Article 70 (1)(d) of the Constitution disqualifies him from being a member of parliament.
“Nyirenda not being in possession of a grade 12 certificate or its equivalent stands disqualified in terms of Article 70 (1)(d) of the Constitution and cannot continue to sit in Parliament as to do so will not only be illegal under Article 1(2) of the Constitution but a dereliction of duty on our part as a court. I would have ordered that Nyirenda should not have continued to sit as a member of parliament as this goes against Article 70 (1)(d) of the Constitution,” said justice Mulonda.