By Dickson Jere
One of the parliamentary candidates for Mandevu constituency has died ahead of the August 12 general elections. The death has triggered the operation of Article 52 (6) of the Constitution of Zambia as amended in 2016. This means the parliamentary election in Mandevu constituency “SHALL” be canceled and facilitate for fresh nominations. This is what the Constitution provides. For the avoidance of doubt, let me quote Article 52(6) ipsissima verba.
“Where a candidate dies, resigns or become disqualified in accordance with Article 70, 100 or 153 or a court disqualifies a candidate for corruption or malpractice, after the close of nominations and before the election date, the Electoral Commission shall cancel the election and require the filing of fresh nominations by eligible candidates and elections shall be held within thirty-days of the filing of the fresh elections.”
The Article is clear and couched in mandatory terms. ECZ “shall cancel the election” and call for fresh nominations. We are still far away from the August 12 election, therefore, ECZ can still do the fresh nomination and hold Mandevu constituency elections by the 12th August since that election day falls within the required thirty-days stipulated by the Constitution for holding elections after fresh nominations. The Article uses “shall” which means that the ECZ has no discretion in the matter. Further, the Article does not say that only those candidates who participated in earlier nomination are eligible. It says “eligible candidates”, which means any new entrants in the race can join at this stage as long as they qualify! I am not sure what the framers of the Constitution had in mind on this one but is it law for the time being. In future – maybe – only the affected political party should be allowed to field a replacement candidate after death while the rest of the nominations should remain valid.
I was alarmed when I read a story in the Diggers Newspaper of 22nd June 2021 in which ECZ is quoted to have said that the opposition Zambians United for Sustainable Development Party (ZUSD) will be allowed to field another person following death of its candidate. The story further quotes the ECZ spokesperson as saying ZUSD has been asked whether it will be fielding another candidate or not. This interpretation of the Constitution by ECZ is wrong, in my humble opinion, as that approach is not backed by any law. Article 52(6) does not require ECZ to engage an affected party and ask whether it will field another candidate or not. It simply says when there is death, the election is canceled. That is, it!
Whether the party that lost a candidate wishes to field another one or not is immaterial. If that was the spirit of the framers of the Constitution – they would have said so.
Let ECZ do the right thing and call for fresh nominations before time runout to hold the polls on the 12th August 2021 together with the rest of the elections nationwide. No need of inviting legal cases on straight forward matters like this one. The Article maybe problematic but it is what it is! We say the “law is an ass – a idiot”, the saying borrowed from George Chapman, the English dramatist in his 1654 Play called Revenge for Honour.
Cancel Mandevu Constituency elections – I submit!