*Implications of the Constitutional Court Judgement on 90 days*
The Judgement has just guided how the future vacancies must be treated and also rendering the “stay” obtained by the 9 expelled MPs otiose.
Art 72(8) of the constitution demands that where a vacancy occurs in the National Assembly, the Speaker SHALL, within seven (7) days of the occurrence of the vacancy, inform the Electoral Commission of the vacancy, in writing, and a by-election shall be held in accordance with Art 57.
When the 9 MPs were expelled, they went to the Constitutional Court, not to challenge their expulsion but the legitimacy of Expeller (Miles Sampa and team) leading to the dismissal of the case by the Constitutional Court for want of jurisdiction.
Their action was not in line with the provisions of Art 72(5) which guides an expelled MP to challenge the expulsion in court so that the court can either confirm or not his/her expulsion. Since they did not do that, the provisions of Art 72 (5) that says “where a member of Parliament is expelled as provided in clause 2 (e) [of art 72], the member shall not lose the seat until the expulsion is confirmed by a court, *except that where the member does not challenge the expulsion in court and the period prescribed for challenge lapses, the member shall vacate the seat in the National Assembly*
This is the dilemma the 9 MPs found themselves in. They did not challenge the expulsion as per demands of Art 72(5) hence the dismissal of their case.
This meant that in line with Art 72(5), they vacated their seats and we’re vacant hence the speaker’s declaration of these seats as vacant.
Within 7 days the Speaker informed ECZ in writing of the existence of 9 vacancies in the National Assembly.
At the time ECZ was preparing to conduct the by-elections the 9 expelled MPs went obtained a stay against the decision of the Speaker pending leave for judicial review.
In the absence of the recent court judgement, the “stay” stopped the clock from ticking and 90 days in which to hold the 9 by-elections was frozen.
Armed with the recent judgement from constitutional Court, it goes without saying that the day the High Court will vacate the stay will.be the day 90 days will start ticking again.
In this regard, any future declared vacancy to which the ECZ is informed in writing by the speaker or council secretaries/town clerks will not be stopped by court “stays” or judicial reviews.
The High Court judge who stayed the conduct of elections should be reported to JCC for incompetence and gross misconduct in line with Article 144 for violating the constitution.
Therefore, the by-elections will be held immediately the judge who stayed the election lifts the stay. So the lapse of time does not arise as the judgement which has guided now was not there.
Zikomo!