Malanji attempted to avoid topic touching on his Grade 12 certificate, submits petitioner’s lawyer
By Mwaka Ndawa
LAWYER representing losing UPND candidate for Kwacha Constituency, Machayi Kasaji has submitted that it is unfair for Joseph Malanji’s lawyers to suggest that the High Court should have taken up the responsibility of calling for evidence to supplement their client’s assertions that he possessed the requisite academic qualifications to contest elections.
Machayi said Malanji attempted to avoid the topic touching on his Grade 12 certificate when it was raised by Charles Mulenga.
In this matter, Malanji has appealed the decision of High Court judge Kazimbe Chenda to nullify his election as Kwacha PF member of parliament on November 19, 2021 due to lack of a Grade 12 certificate and electoral misconduct.
This was in a matter where UPND candidate Charles Mulenga petitioned Malanji’s re-election citing bribery and electoral misconduct, among other reasons.
Mulenga also cited the Electoral Commission of Zambia as the second respondent in the matter.
When the matter came up for hearing before judges Ann Sitali, Mungeni Mulenga, Palan Mulonda, Margaret Munalula, and Judy Mulongoti, Malanji’s lawyer Joseph Chirwa submitted that the High Court led itself in grave error when it entertained the issue of Malanji’s eligibility to contest elections at petition stage.
“It is our submission that the trial court was in want of jurisdiction. Article 52 and 73 of the Electoral Process Act, the trial court had no jurisdiction to pronounce itself on Malanji’s eligibility to contest elections,” Chirwa said.
“The trial court relied on section 97(2) of the Electoral Process Act when the said provision has a caveat that an allegation must be proved to the satisfaction of the court.”
Chirwa said during hearing of the petition, Malanji had informed the court that he possessed a Grade 12 certificate but the court ruled that he did not have it.
He said the trial court failed to execute its duty by not allowing Malanji to produce the certificate.
“The trial court should have subpoenaed the chairperson of the Examinations Council of Zambia (ECZ) to attest its (school certificate) authenticity and availability,” Chirwa said.
Malanji’s other lawyer Benjamin Mwelwa said if the court did not reverse the holding of the High Court it would cause confusion in the country as far as election petitions were concerned, as there would be another pattern away from the well-established manner of proving petitions.
“There will be another paradigm to prove election petitions can be annulled on a simple balance of probability. Further confusion is that as long as the petitioner alleges anything but does not produce evidence, the petitioner will still carry the day in the petition on that aspect,” Mwelwa said.
“The lower court shifted the burden of proof on Malanji to prove that he possessed a Grade 12 certificate when Mulenga did not prove his allegations. We pray that the court reverses the holding of the lower court.”
In reply, Kasaji said the trial court was on firm ground when it held that Malanji did not meet the requirements of Article 70(1)(d) at the time he was re-elected.
“Malanji attempted to traverse the allegation in his answer instead of buttressing the allegation, he tried to mount a legal technicality to the effect that the issue of eligibility was statute barred. Malanji said he possessed the school certificate but he could not produce it because he was not requested to do so,” Kasaji argued. “The returning officer who was Malanji’s witness did not confirm that the appellant produced a Grade 12 certificate, neither did he produce nomination papers that were given to him by Malanji. The returning officer instead adopted Malanji’s arguments that the issue of eligibility was statute barred.”
He said Malanji did not exercise his evidential burden to prove that he possessed a Grade 12 certificate.
“It is unfair by Malanji’s lawyers to suggest that the High Court should have taken up the responsibility of calling for evidence. It does not matter whether the candidate was successful at nomination stage. The court can determine matters bordering on eligibility at petition stage,” Kasaji said. “It is not correct to say eligibility can only be challenged within seven days after nomination. The trial court was right when he (judge Chenda) arrived at the conclusion that Malanji was not qualified to contest the August 12, 2021 general elections.”
He prayed that the appeal be dismissed for lacking merit.
In reply, Chirwa said the Electoral Commission of Zambia accepted Malanji’s nomination because he met the requisite academic qualifications.
“The court below was in want of jurisdiction and the decision was a nullity,” said Chirwa.
Mwelwa added that the eligibility process of Article 52(4) and the electoral process should be distinct from one another in an election petition.
Judgement has been reserved for May 5, 2022.