Justice Chulu refuses to join Emily Sikazwe’s petition against ECZ
By Mwaka Ndawa
FORMER Electoral Commission of Zambia (ECZ) chairperson Essau Chulu has opposed being joined to the proceedings in which his former vice Emily Sikazwe has petitioned the State in the Constitutional Court over her untimely dismissal from employment by President Hakainde Hichilema.
Justice Chulu contends that he will suffer injustice if he is joined to the proceedings in his personal capacity for signing Sikazwe’s contract of employment which was undertaken in his official capacity as chairperson of the Commission.
In this matter, Sikazwe is seeking an order that the decision by the President to prematurely terminate her contract of employment which was scheduled to come to an end in 2027 is null and void and lacks merit.
She wants an order that the President contravened Article 216 and Article 242 of the Constitution as read with Section 5 (3) and 6(1) of Act No. 25 of 2016 as amended by Act No. 5 of 2019 of the Electoral Commission Act.
Sikazwe is demanding damages against the State for the President’s wrongful conduct in public office.
Solicitor General Marshal Muchende asked the court to join justice Chulu to the proceedings as an intended second respondent for the reason that there was sufficient interest for him to be a party to the proceedings because he signed Sikazwe’s contract of employment for the position of vice-chairperson.
He said justice Chulu is likely to be affected by the outcome of the matter being the signatory of the contract.
In its answer to the petition, the State said judge Chulu had no authority and constitutional power to communicate the conditions of service for Sikazwe and extend the contract for an extra five years.
The State said the President did not contravene the provisions of Article 216 and 243 of the Constitution as well as Section 5(30) and 6(1) Act No .25 of 2016 as amended by Act No. 5 of 2019 of the Electoral Commission Act, as the President was acting within the law by not renewing her contract.
The State added that Sikazwe is not entitled to any of the reliefs sought as the Head of State acted within the law.
But in an affidavit in opposition to summons for joinder of a party to proceedings, justice Chulu explained that he signed Sikazwe’s contract of employment in his capacity as then chairperson of the ECZ.
“I do not have any personal interest in the current proceedings. The petition does not disclose any claim against me. I will not be affected by the outcome of the petition,” justice Chulu said. “The respondent’s application for joinder is predicated upon the fact that the intended second respondent was a signatory to the petitioner’s contract of employment. We submit that the mere signing of the contract of employment is not sufficient to warrant the joinder of the intended second respondent.”
He said the law protects him from being joined as a party to these proceedings.
“There is an allegation made by the respondent that the intended second respondent was on a frolic of his own, when he gave the petitioner, a contract of employment more than the period made by the President who is the appointing authority. Be that as it may, there is nothing more to suggest that when the intended second respondent signed the petitioner’s contract of employment, he did not do so in good faith,” said judge Chulu. “We submit that the respondent has not demonstrated to the court that the intended second respondent has sufficient interest in the proceedings to warrant the joinder. No claim has been made against the intended second respondent and we cannot therefore, fathom how the intended second respondent will be affected by the outcome of these proceedings. We submit that there is no nexus between the petition and intended second respondent. The respondent’s application is destitute of merit and should be dismissed with costs payable forthwith.”