NO POSSIBILITY OF KWACHA, KAFUBU BY ELECTIONS – AG
Attorney General MULILO KABESHA has ruled out the possibility of by-elections in KABUSHI and KWACHA constituencies following the recent Constitutional Court’s majority Judgement that the nullification of election results does not entail disqualification of the person whose seat was nullified.
Mr. KABESHA says the Judgement has been overtaken by events as the by-elections in the two Constituencies already took place in October last year.
The Attorney General has stated that the Petition of BOWMAN LUSAMBO Of KABUSHI Constituency and JOSEPH MALANJI of Kwacha constituency against the said elections was already dismissed by the High Court and now awaits the judgment of the Constitutional Court on appeal.
He says the by-elections took place on the strength of article 52 sub-articles four of the Constitution that required Mr. LUSAMBO and Mr. MALANJI of the PF to conclude their petitions to recontest within 21 days.
Mr. KABESHA says the requirements to conclude the petition in the High Court within 21 days as stipulated by 52 sub-article four was affirmed in the Case of BERNARD KANENGO versus the Attorney General and Electoral Commission of Zambia.
He says Mr. KANENGO of the UPND who is the incumbent KABUSHI Member of Parliament consolidated his case by referring to the precedence of HAKAINDE HICHILEMA verses the Attorney of 2016 where the Presidential Petition could not be stretched beyond 14 days.
He adds that the comprehensive majority and minority judgments delivered by the Constitutional Court on March,10,2023 are not a new version of the abridged judgments of September 7,2022 on Mr. LUSAMBO and Mr. MALANJI’s case.
This is according to a statement released in LUSAKA by the Attorney’s Office.
This is in a matter where Mr. LUSAMBO and Mr. MALANJI challenged the decision of the Electoral Commission of Zambia to reject their nomination papers for the October 2022-KABUSHI and KWACHA parliament by-elections.
The majority Judgement underlined that those whose election results have been nullified as was the case with Mr.LUSAMBO and Mr.MALANJI cannot be disqualified from re-contesting an election on the basis of article 72 sub-article four of the Constitution.
The majority Judgement was delivered by Judges PALAN MULONDA,MUGENI MULENGA,MATHEW CHISUNKA and JUDY MULONGOTI.
On the other hand in the dissent judgement Deputy President Constitutional Court President MARGARET MUNALULA has held that individuals whose election results have been nullified cannot recontest the by-elections.
Judge MUNALULA held that the case of Law Association of ZAMBIA verse Attorney General that states that nullification is not disqualification does not under undermine article 72 sub-article four of the Constitution.
She stated that her interpretation of article 72 sub-article two and article 72 sub-article four is that an individual who causes a vacancy in the National Assembly is not eligible to recontest the bye-elections.
CREDIT: ZNBC
But why are the majority judges insisting on “nullification is not disqualification”?
What is their interpretation of article 72(4) which disqualifies anyone who causes a bye-election?
It is hard to understand the reasoning of these Constitutional Court Judges.
Anyone who causes a by election on his or her own not by nullification,simple and straight forward explanation ,nefili simple.If I resign then I can not stand coz I have triggered a by election
Ba Zamzam, are you saying that if the culprit engages in violence and corruption, the elections can be nullified again and again with the offender maintaining the right to stand?
This one is not a lawyer but a small scale farmer. Bye elections will be held in Kabushi and Kwacha whether you like it or not. How can learned lawyer compare with Hichilema’s 14 days in the presidential petition, that’s very different from this. Lusambo and Malanji now have to sue the ECZ for wrongly not accepting their nominations and holding of fresh nominations and elections. And Upnd will be trounced! After that Hichilema will be sued for wilfully waisting huge government resources by going ahead with illegal elections in Kabushi and Kwacha. This Kabesha is not even shy to come out like like to the public. It’s very embarrassing to Hichilema and his Upnd!
Why is the Attorney General taking sides. He should wait for his office’s time if and when called upon by the Courts or when Government decides to appeal to whatever other Courts may decide. Otherwise the learned Counsel may attract insinuations of being partisan which is the last thing anyone in that office should avoid. There are a lot of ways to skin an animal
The Kabushi and Kwacha by Elections will be held. Let PF constitute a team of powerful lawyers and sue ECZ. The government prevented the Lusaka High Court to make a judgement by going to the Court of Appeals. Why go to the Court of Appeals when the high court hadn’t made any judgement?
Those illegal Elections should be annulled.. Fresh nominations conducted, and legal Elections held. Period.
ECZ were also within the law to hold legal elections within the legal ninety days as required by the supreme law of the land, the constitution. That’s why this matter is subjudice.