NOMINATION CLAUSE VS IMMUNITY CLAUSE: APPENDING CONSTITUTION CHALLENGE AND DEBATE AHEAD OF 2021 PRESIDENTIAL ELECTION
WHEN we say our Constitution has so many manipulative gaps in favour of the incumbent and that NDF was a kids’ play, others call us names.
If truly NDF was there to refine the 2016 Constitution and not to incorporate and insulate their interests, such glaring and observable lacunae would not have been left unattended to.
Our Constitution seems to suggest that it is easier to challenge a non sitting president’s nomination than a sitting President who remains President and enjoys immunity even during the nomination period.
For instance Art 52 (4) allows “a person to challenge, before a court the nomination of a candidate within seven days of the close of nominations and the court shall hear the case within 21 days of its lodgement”.
This means that any presidential candidate who files in his/her nominations papers before the Returning Officer can be challenged/sued in the courts of law should any person feel that their nomination is undesirable or the nominee does qualify.
However, Art 98 (1) seems to exempt a sitting/incumbent President from this court challenge.
It guides that ” a person shall not institute civil proceedings against the President or person performing executive functions, as provided in Art 109, in respect anything done or omitted to be done by the President or that person in their private capacity during the tenure of Office as President”.
This is so because Art 106 (2) dictates that “a President (incumbent) shall hold office from the date the President-elect is sworn into office and ending on the date the next President-elect is sworn into office.”
Art 106(2) suggests that the incumbent President continues to be President and enjoys immunity against any lawsuit be it civil or criminal and any court case against him/her triggers the provisions of Art 98 (1).
With the pending nomination challenge against the incumbent President over his eligibility question, isn’t this another area of debate in our country?
To worsen the matters, Bill 10, which intends to repeal Art 52 and remove the nomination challenge clause, is not the panacea to this pending Constitution confusion.
Zambia therefore needs a constitution overhaul to reposition our constitution again.
Let us wait and see how the legal minds will lockhorns at the right time over this issue. This is food for thought for all Zambians.
I submit
By McDonald Chipenzi
Electoral Expert