By Isaac Mwanza
ECZ HAS NO CAPACITY TO INDEPENDENTLY MANAGE ELECTIONS
At the climax of this discussion is a conclusjon that the Electoral Commission of Zambia (ECZ) has reduced capacity to independently manage elections, in its current state. Now we dealing with Kabushi and Kwacha as experimental project and next it will be Lumezi and other constituencies.
But first let us get this clear.
What is the difference between withdrawal and resignation?
Under our Electoral Law, a withdraw is when a nominee (a person who applies to be a candidate), whether sponsored by a political party or independent, decides, before close of nomination withdraws his or her nomination paper [See Section 31 of the Electoral Process Act]. The person is not yet a candidate but has applied to be nominated as a candidate and has actually lodged in the nomination paper.
Under our Constitution, a resignation of a candidate takes place after close of nomination and before the election date. This person surrendering is not a nominee at this point but a candidate. [See Article 52(6) of the Constitution]
The debate has now been on what the word resignation means. The matter of interpreting Article 52(6) was before the Constitutional Court in the case of Michael Mbuyu Mutwena (a lawyer) v. Attorney General [2021/CCZ/0038] decided on 19th January, 2022. There is nothing much in the judgment except the arguments advanced by both the Attorney General and the suing lawyer. The court decided it would not intepret Article 52(6).
The only place we find the Court stating what resignation means can be found in the Judgment between Isaac Mwanza v. Electoral Commission of Zambia and Attorney General [2021/CCZ/0008] in which the Court cited, with approval, the Canadian Court case of Templeton v. RBC Dominion Securities Inc in which the Court said:
“A resignation is the decision to terminate a relationship or, equally, a fact, or circumstances which unequivocally reflects that decision.”
Another definition can be found in Black’s Law Dictionary, 9th Edition, in which a resignation is said to be when one surrender any of these three things: (1) an office or (2) a right or (3) a claim.
There is no doubt that when one becomes a candidate, a relationship exist between the voters and the candidate himself or herself which can be terminated by a candidate surrendering a right to being a candidate or a claim to being a candidate. This is exactly what has happened in Kabushi.
Question now is: do we expect ECZ to act by cancelling that election and calling for fresh nominations? At the moment, ECZ has continued to lose public trust and confidence and I doubt they have the courage to perform their obligations.
ECZ has no substantive chairperson and no CEO but people who are performing duties in an acting capacity. They can’t take bold and independent decisions without being afraid of being fired. The Commission has also, by Gazette Notice No. 1123, been placed under the Office of the Vice President, thereby compromising its independence.
I submit.
Isaac Mwanza
