By Isaac Mwanza
MPS WITH NULLIFIED SEATS CAN REMAIN IN PARLIAMENT AND LATER RECONTEST IN BY-ELECTION
Following a point of order raised against Hon. Bowman Lusambo remaining in the House, there is growing misinformation suggesting lawmakers whose seats are nullified by the High Court must vacate seats. Others has also suggested that MPs whose seats are nullified by the Courts or cited for malpractice, bribery or violence cannot recontest his seat in an event of by-election.
This above misinformation is going on because of lack of reading and understanding the new law. The law has changed and MPs whose seats are nullified or cited for malpractice can still contest election, regardless of the report issued by the Court.
The point of order raised by that UPND MP is simply meant to test the legal knowledge and impartiality of the Speaker when interpreting the law. Otherwise it serves no purpose other than wanting to embarass the Speaker if she overrules the Constitutional Court and the Constitution on when a vacancy is created in the House. I will not be surprised if she takes that route though
ON VACANCY
The Constitutional has two interesting articles on when the vacancy is created in the House. Article 72(2) (h) reads:
“The office of Member of Parliament becomes vacant if the member is disqualified as a result of a decision of the ConstitutionalCourt”
Article 73 (4) also reads:
“A Member of Parliament whose election is petitioned shallhold the seat in the National Assembly pending the determinationof the election petition.”
The question are:
(a) has the Constitutional Court disqualified the Kabushi lawmaker for the vacancy to be created? The answer is NO.
(b) Has the Constitutional Court, as the Court of final jurisdiction, determined the petition petition of the Kabushi seat? The answer is NO.
It may be argued that Article 73(4) does not talk about the Constitutional Court but it also does not talk about the High Court. What Article 73 talks about is the election petition as can be seen from marginal note. Both the High Court, as Court of first instance, and Constitutional Court, as an appellate Court are mentioned in the Article. The election petition is determined by the High Court where no appeal is made and where an appeal is made the Constitutional Court determines the petition.
The Mwanakatwe ruling by late Constitituonal Court Judge Mulembe was very solid on this matter. If the Speaker rules otherwise, it is because someone may have a game plan to have the matter go to Court again and get the Court to change its position. At least Judge Mulembe would not be part of the embarrassment at that point as he did his job very well.
ON RECONTESTING SEATS
Before 2016, the Constitution and the Electoral law had a provision which stopped MPs who are named, at conclusion of an election petition, for malpractice, bribery, violence, etc from contesting elections. This is no longer law.
The repealed Article 65 (6) read:
“Parliament may provide that a person…reported guilty of such offence by the court trying an election petition shall not be qualified to be elected as a member of the National Assembly for such period, not exceeding five years following…the report of the court, as the case may be, as may be so prescribed.”
The then section 22 (b) of the Electoral Act (now repealed) read as follows:
“22. In addition to the persons disqualified by the Constitution-
(b) any person who is convicted of any corrupt practice or illegal practice or who is reported guilty of any corrupt practice or illegal practice by the High Court upon trial of an election petition under this Act shall not be qualified for election as a member of the National Assembly for a period of five years from the date of the conviction or of the report, as the case may be.
This was further consolidated by Section 104(6) of the repealed Electoral Act.
These provisions, except the provisions of Section 104(6) of the old Electoral Act, 2006, have been repealed are no longer law.
The duty of the Court now is never to pronounce that candidates named for forbidden acts under the law cannot recontest seats. The Court only renders a report, which transmitted to the Director of Public Prosecution for possible prosecution of a person named.
Nothing stops the named person from recontesting the seat and the DPP is not under an obligation to prosecute.
In a nutshell, MPs remain in the House until the election petition is determined by the the Constitutional Court, if appealed. MPs who have been named by the courts of committing breaches can still participate in an election, regardless of them having been named.
GROUNDS AND POSSIBLE MOTIVE FOR NULLIFICATION OF SEATS
There is very excellent precedent from the Constitutional Court and the firm provisions of the law on when to nullify or not nullify an election.
We have some High Courts nullifying seats on the basis of Circular by Secretary to the Cabinet requiring civil/public servants to resign by 30 November 2020 and a Judge deliberately disregarding Article 186 of Constitution which is the Supreme law of the land. Elections being nullified because of an omission to give candidates the GEN 21 Form and another election nullified because the Court has shifted the burden of proof to Respondent. Gaaaad!
In my view, the current nullifications are a way of sending the cases to the Constitutional Court as a means for cadres who don’t read to justify their appetite to abolish the Constitutional Court when the Court refuses to participate the nullification on grounds which ordinarily should not be used to nullify elections or when it determines the law was. Ot followed by the lower courts.