Nullification of Malanji’s seat unfair and senseless
By Diggers Editor
THE nullification of Honourable Joe Malanji’s election as Kwacha member of parliament is senseless and unfair in many ways. In the English language, there is a naughty expression which states that “The law is an ass”. When we look at the circumstances surrounding the nullification of Honourable Malanji’s seat, it is appropriate to say that in this case, the law has indeed proved to be an ass. Apart from being an affront to justice, this development, in the manner that it has occurred, presents a dilemma on the institution of Electoral Commission of Zambia and exposes serious flaws in its management of elections and the adoption process.
Honourable Malanji is not our darling. There are several areas where we have differences of opinion. In fact, we consider him a criminal suspect because there are a number of financial transactions his companies are involved in which he has not succeeded to explain. It is this newspaper that published the “Turkey Money Heist” headline where we alleged that Honourable Malanji, while serving as Foreign Affairs Minister, flew to Turkey with the Presidential challenger jet to collect money believed to have been sent to the Zambian Mission for purchasing an embassy building in that country. Not long after our story was published, the Drug Enforcement Commission (DEC), in collaboration with the Anti-Corruption Commission (ACC) jointly charged and arrested Malanji and former Secretary to the Treasury Fredson Yamba for influencing the transfer of K154,201,197 to the Zambian mission in Turkey without following the law on Supplementary Expenditure as provided by Article 203 of the Zambian Constitution Act No. 2 of 2016.
Our point is that we are not Honourable Malanji’s praise singers or fanatics. But when the law is applied unfairly on him, we need to stand up and condemn the justice system for circumventing the delivery of justice. If Honourable Malanji’s election was nullified on grounds that he was involved in vote-buying (corruption), violence or any other related malpractice, we would not be saying what we are saying about his removal from parliament. But we have a problem with the way in which he has been treated.
According to the law as prescribed under Article 70(1)(d) of the Constitution, the minimum academic qualifications for a person wishing to contest the position of member of parliament is a grade twelve (12) Certificate. In order for that certificate to be considered valid, the Examinations Council of Zambia Director will write a letter to the Director at the Electoral Commission of Zambia, attesting to the fact that the applicant’s grade 12 certificate has been reviewed and confirmed to be legitimate. The Examinations Council will indicate the name, surname, National Registration Card and Examination number of the applicant to help the Electoral Commission in ascertaining that the individual applying to be on the ballot is the same person whose credentials have been certified.
When we read the ruling in Honourable Malanji’s case, especially from the dissenting position held by Justice Mungeni Mulenga, we see a problem that has been swept under the carpet. Justice Mulenga contends that the petitioner did not prove to the high standard the allegations that Honourable Malanji did not possess a grade 12 certificate. Justice Justice Mulenga did not agree with the high court’s decision to transfer the burden of proof to Mr Malanji when the petitioner was the one with the duty to prove his allegations. She said that in the case of the Electoral Commission of Zambia (ECZ) which was the second respondent, and was expected to tender the documents (grade 12 school certificate) which Honourable Malanji had used to file his nomination, it was unfortunate that this was not done.
This is what we mean when we say that the Electoral Commission of Zambia has sacrificed Honourable Malanji for its own incompetence. It is clear to us that the Commission found itself in an awkward position and was not able to adduce the much needed document because had it been found to be valid, Honourable Malanji’s election would have been upheld, but at the same time, had it been found to be invalid, they would have found themselves guilty of admitting an unqualified candidate.
Our opinion is that an election petition based on qualification credentials should not be a matter for the winning candidate but the institutions charged with the responsibility of scrutinising and validating qualifications. It must be made clear in the law that once the Examinations Council and the Electoral Commission has endorsed your qualifications, you cannot be challenged after elections, otherwise the process of validating qualifications is useless.
It is expected that if the Electoral Commission has examined the documents supporting your qualification to contest the parliamentary seat, or indeed any other position, and validates those documents, then you are allowed to contest elections. If contesting elections after the Commission has validated your qualifications can be against the law, then the law is in fact, a big ass.
What this nullification of election does is that it confirms that the Electoral Commission of Zambia is a porous institution which takes instructions from politicians. It has confirmed that the Commission bends towards the demands of political candidates who have some form of power – political or financial. This is an embarrassing development to the Commission and our brothers and sisters who work there must not walk tall after this. They should be ashamed that they failed to do their job and they have used the court process to punish someone else for their incompetence.
In our view, it is only fair that Honourable Malanji recontests the seat in Kwacha, and wins the election. We say this because the nullification of his election was a waste of time and public resources. This will be a by-election which could have been avoided if the Commission did its job. This would have been avoided if those appointed to manage elections were firm and operated autonomously. Shame on ECZ!