By Mwaka Ndawa
LUSAKA lawyer Lewis Mosho has been joined as an interested party to the petition brought by John Sangwa seeking an order that the Electoral Commission of Zambia includes the paragraph which states that a presidential candidate has not served for two terms in the affidavit for presidential and running mates.
And Mosho has asked the Constitutional Court to strike out the matter because it does not disclose which provision of the law has been abrogated by ECZ.
In this case, Sangwa has petitioned the Electoral Commission of Zambia for eliminating the part which requires a presidential candidate to state the number of times they have held office as President in Form no. Gen 4 to be sworn by presidential candidates when filing in nomination papers.
He is seeking an order that the Constitutional Court commands ECZ to amend the affidavit for presidential candidates and running mates and include another paragraph which is in compliance with Article 106(3) of the constitution which must read “I have not twice held office as President”.
In the alternative, Sangwa wants ECZ to include another paragraph in the judgment of the court which shall satisfy Article 106(3) of the constitution.
In an affidavit in support of notice of motion to raise preliminary issue, Mosho claimed that there is no constitutional question that arises from Sangwa’s petition.
He said Sangwa, by his petition, is inviting the court to embark on re-writing the affidavit for presidential and running mates made pursuant to section 11(4) of statutory instrument no. 63 of 2016 when the Electoral Process (General) Regulations, 2016 Act does not fall within the jurisdiction of the court.
“This is a fit and proper case for the court to dismiss the petition,” Mosho argued.
Mosho wants a determination on whether the court had the authority to hear and determine Sangwa’s petition which lacks any disclosure of constitutional issue or breach as alleged.
According to his list of authorities and skeleton arguments in support of the interested party’s notice of motion, Mosho stated that the affidavit in question satisfied the requirements of Article 52 of the constitution.
He claimed that ECZ complied with Article 52 of the constitution in prescribing the affidavit in question as it directly speaks to the requirements of Article 52 of the constitution.
“There is no requirement under Article 52 of the constitution to the effect that the contents of the affidavit in question should speak or disclose to each individual provision of the constitution relating to the qualifications for one to stand or be nominated as presidential candidate,” Mosho said.
He argued that the petitioner could not anchor his petition on Article 128(3) of the constitution of Zambia and allege that ECZ had contravened Article 52 of the constitution of Zambia for allegedly omitting a paragraph which specifically speaks to Article 106(3) of the constitution of Zambia which have been taken care of by the affidavit in question.
“The alleged violation of the constitution arising from the purported inadequacy of the affidavit for presidential candidates and running mates does not rise at all,” said Mosho. “This is essentially because the affidavit in question specifically responds or fulfills the obligation as imposed by the constitution of Zambia particularly Article 52. We, therefore, pray that this court dismisses this petition for lack of disclosure of any constitutional violation.”