EITHER OFFICE OF THE PRESIDENT SPECIAL DIVISION OR ATTORNEY GENERAL MISLED THE PRESIDENT LEADING TO EMBARRASSMENT

Some colleagues are blaming the “bad Constitution” and “incompetent Concourt” for the embarrassment and humiliation that President HH has gone through in the last 24 hours resulting from the stay of the Kabushi and Kwacha by-elections by the High Court.

I disagree with such a narrative. The embarrassment and humiliation is typically a consequence of advisability dysfunction of either the Office of President Special Division or the Attorney General’s Chambers. Otherwise, it could only be a consequence of disregard of advice in the presidency.

The Constitution in Article 1(4) is very clear. Validity or legality of the Constitution is not subject to challenge by or before a State organ or other forum. Attempts by State organs to challenge the validity of the Constitution has been the major problem.

Lets take an example, of what transpired yesterday. Article 52(4) provides that “A person may challenge, before a court or tribunal, as prescribed, the nomination of a candidate within seven days of the
close of nomination and the court shall hear the case within twenty-one days of its lodgement.” In my view, this provision is very clear. It allows any person, regardless that person is candidate or not, to challenge the nomination. This provision does not limit the challenge of the nomination to candidates only, whether successful or not.

Now, the Solicitor General informed the Nation that the State wants to go back to Concourt to seek its interpretation of Article 52(4).

According to the Solicitor General, the
State wants the Concourt to determine whether the High Court has jurisdiction to hear qualification matters connected with Article 54(2), instead of being limited to Articles 70 and 71 only.

The State also wants the Concourt to determine whether the High Court has jurisdiction to hear a nomination petition in the absence of any challenge of the nomination by a candidate whose nomination was successful.

Starting will the last issue, the plain lunguage of the article is very clear. It indicates that “any person” may challenge a nomination. It doesn’t say any successful candidate. According to Articles 266, “ person ” means an individual, a company or an association of persons, whether corporate or unincorporate. So how does one blame the Constitution or the drafters of the Constitution on Article 52(4) which so clear on who can petition a nomination?

Coming to the first question in which the State is challenging whether a nomination petition can be brought under Regulation 19(7) of the Electoral Process (General (Amendment) Regulations 2021, it will be noted that Article 52(4) cited above provides that a person may challenge, before a court or tribunal, “as prescribed”, the nomination of a candidate. According to Article 266, “prescribed ” means provided for in an Act of Parliament”. In this case, it means as provided under the Electoral Process Act 2016, and all regulations promulgated under its authority, including Regulation 19.

How do you And you blame the Constitution or indeed the Concourt on clear cut things like this? Or indeed, why blame draftmanship on clear cut things like this?