LEGALITIES OR ILLEGALITIES OF KABUSHI AND KWACHA BY-ELECTIONS: WHAT IS THE TRUTH
The just-ended by-elections in KABUSHI AND KWACHA have attracted mixed reactions from mainly political and social comentators not contestants.
With others calling the by-elections as a sham, others, an illegal while others arguing that they were exclusive
The by-elections legally and constitutionally held under Art 57(1) triggered legal challenges in accordance to Art 57(4) but unfortunately, the end results of these legal battles was failure to stop the election process in Kabushi and Kwacha.
Legally, some of the principles of an electoral process include that elections are free and fair and that elections are free from violence, intimidation and corruption (Art 45) while Electoral Process Act 3 (q) and (s) further talks impartial handling of election complaints and timely resolution of electoral disputes* among others.
By free election it denotes freedom of the contesting parties and candidates to freely campaign, associate, express and assemble while a fair election means an election the rules of the game i.e the provisions of the code of conduct, electoral laws and constitution are respected
It is agreed that the Kabushi and Kwacha by-elections were heavily contested legally which legal battle was aimed to timeous resolve electoral disputes.
Lawyers for ECZ, Attorney General’s Chambers and those for duly nominated and duly rejected candidates trotted from one courtroom to another in an effort to exercise their right to electoral justice.
However, apathy characterised the two by-elections, causes factors I will discuss in my next article.
Having visited and exhausted all legal options, the Kabushi and Kwacha parliamentary elections had to proceed legally and constitutionally.
The illegalities, in my view, were committed by the Court which uniterally declared its power to stop the time which decision was unconstitutional and the decsion to stay the by-elections beyond the 21 days meant for the Court’s judication on any nomination matter which was illegal and unconstitutional.
Coming to the stay by the High Court as rightly observed by the CONCOURT, it elapsed IMMEDIATELY the 21 days fell due as per specification under Art 52(1-5) which only awards 30 day maximum (Art 52(5) to complete the process of nomination from nomination challenge to the determination.
In this regard, the nomination happened on 25 August and aggried candidates were given 7 days to challenge the nominations which 7 days expired on 31 August and the nomination challenge by Joe Malanji and Bowman Lusambo were done on 30 August.
As per dictates of Art 52(4), the 21 days started ticking immediately the nomination challenge’s lodgement was filed in court on 30 August, 2022.
The 21st day after the nomination challenge lodgement was 21 September 2022. This date was way outside the date the ECZ announced the decision to set a new date which on 11 October.
This was 20 days after the collapse of the High Court stay on the by-elections due to want of time. This makes the decision of the ECZ not only legal but Constitutional correct and right as per guidance of Art 57(3).
However, on 12 and 13 September respectively, two independent candidates each from Kabushi and Kwacha respectively “resigned” from the election process triggering the possibility of ECZ calling for new nominations and the hold for fresh election as per guidance under Art 52(6).
On the 9 Sept, Malanji and Lusambo filed in a lawsuit in the High Court to stay the by-elections which was granted on the 13 Sept, 2022, three days later the independent candidate for Kabushi resigned i.e. 12 Sept and a day after the one for Kwacha [i.e 13 September] also “resigned” on the very day the High Court actually granted a stay on the two by-elections.
As can be seen in the chronological of events, the purported “resignations” of the independent duo happened after the lodgement of a lawsuit to stay the elections by Malanji and Bowman Lusambo tying the ECZ from canceling the election as a result of the “resignation” of the duo as there was no election to cancel at the time.
On 6 Oct the two resignees rescinded their decision to “resign” while the High Court “stay” on the by-elections was seemingly not yet discharged though already expired on 21 September 2022 by the operation of law
Consequently, because the High Court was stop by the Court of Appeal to rule on the by-elections which would have lifted the stay, the illegal stay remained but without force of law on time prescribed in the Constitution
From the foregoing, it is clear that the elections in Kabushi and Kwacha were NOT a sham nor were they illegal but legally and constitutionally constructed
Instead the illegalities and unconstitutionalities were/are visibly seen in the various decisions of the various courts trotted to and these are the institutions that might have committed the illegalities in their various decisions due to seemingly failure to properly interpret the Constitution on time and also on appeal.
However, this was redeemed by the CONCOURT’s last ruling on 20 October, 2022 admitting that the High Court Stay on the Kabushi and Kwacha parliamentary elections was annulled by time lapse and that the Court of Appeal was wrong to have handled the appeal on elections instead of the CONCOURT and also that Court of Appeal was wrong to claim to fixate time specified in the Constitution and also to Stay the stay from the High Court
To this end, the truth is that the Kabushi and Kwacha parliamentary elections, despite the low voter turnout, were legally and constitutionally constructed, held and properly conducted by the ECZ and the electoral disputes resolved within 90 days by the Courts enough time for the holding of the by-elections as specified under Art 57(1)
Therefore, the truth is that the claims of illegalities, exclusiveness and shamness are dismissed with the contempt they deserved.
The truth is that the newly elected duo were properly and duly elected and any question on their legitimacy can only be done by dragging the provisions of Art 73(1-4) of the Constitution and as per specification under Section 96 of the electoral process Act.
Court Rise
I submit
Mcdonald Chipenzi
and the election results had already been certified