ECZ MUST HOLD FRESH NOMINATIONS AND CONDUCT KABUSHI AND KWACHA BY-ELECTIONS BEFORE 2ND NOVEMBER, 2022. SAMUEL BANDA
Zambia is about to run into a constitutional crisis with ECZ failing to conduct by-elections in both Kwacha and Kabushi Constituency within 90 days provided by the Constitution, Advocates For National Democracy and Develoment (ANDD) has observed.
ANDD Executive Director Samuel Banda notes that this is where the vigilance of our Courts must always come in.
“The Court can emulate their South African counterparts in not waiting for the violation to take place before they can come in” Mr Banda has said.
He said the unpredictability of holding elections has now been surrounded by the resignation of candidates in Kabushi and Kwacha which the Electoral Commission of Zambia accepted and now the alleged retractions of resignations.
“Luckily, the issue of constitutional resignation and retraction was already determined by the Constitutional Court, and there is a fixed principle on this matter. It is not about facts being the same with precedents but the principle” he said.
“In actual sense, the rescinding of resignations has no legal effect based on the principle the Constitutional Court has already set when it comes to constitutional resignations” Mr Banda has further said.
He said Zambia should take a leaf from how South Africa enforce the 90-day period for holding elections as required by the Constitution.
In 2021, the Electoral Commission of South Africa applied for an order postponing the holding of Local Government Elections which section 159(2) of the Constitution required to hold within 90 days at the expiry of the terms of the existing municipal councils.
The Commission argued that, due to the pandemic, it was unable to organise a constitutionally compliant local government election.
The Commission submitted that it was impossible, due to the risks associated with the pandemic, to meet the demands that have been set by the Constitution, namely:
- that the elections must be held within 90 days of the expiry of the terms of the existing municipal councils,
- that the elections must be free and fair,
- that the election must respect, protect, promote and fulfil the rights of the voters to life, bodily integrity and access to healthcare.
The Commission asked the Court for an order to the effect that it could hold the local government election then scheduled for 27 October 2021 in February 2022.
It also sought an alternative remedy: an order declaring that its failure to hold the local government elections on 27 October 2021 was unconstitutional and a suspension of that declaration of invalidity to allow it until 23 February 2022 to correct the constitutional defect.
The ANC suggested that the election should be postponed until April 2022. The IFP asked that the election should be postponed to 26 May 2022. Their submissions are premised on the anticipated fourth wave of the pandemic and time constraints.
The DA, F4SD and OSAM opposed the application on the basis that this Court has no power to postpone the elections because it would amount to a constitutional amendment and that the power to do so is exclusively held by Parliament.
The majority judgment of the Court delivered on 3rd September, 2021 held that the Commission’s constitutional duty in the circumstances of this case was to conduct the elections within the 90-day period, making them as free and fair as circumstances reasonably permitted, and that our courts do not, save in rare and exceptional circumstances, have the power to relieve the Commission of this duty.
The Court also said that a challenge to the freeness and fairness of the elections must take place after the elections have been held, with reference to events as they actually unfolded.