PETITIONING THE KABUSHI AND KWACHA BY-ELECTIONS OUTCOMES: BY LAW, WHO IS ELIGIBLE TO PETITION AN ELECTION?
IT has been reported that Peter Sinkamba, Isaac Mwanza and Institute of Law, Policy Research and Human Rights have petitioned the ConCourt to declare the election held on 21st October, 2022 in Kwacha and Kabushi as unconstitutional, illegal and null and void.
In as much as I agree with petitioners exercising their constitutional right enshrined under Art 73 of the Constitution and section 96 of the electoral process Act to petition an election and its outcome and seek those reliefs, I feel, the trio suffers from the lack the electoral legal locus standi on this matter.
It would make sense if it was Joseph MALANJI, Bowman Lusambo, any voter registered or who voted in these constituencies or indeed the Attorney General to have questioned through an election petition the election of Abel Mulenga and Benard Kanengo for Kwacha and Kabushi respectively.
I will not delve much into the nitty-gritties of the petition and its merits as that will be the job of the petitioned court to digest and discharge.
My article will mainly dwell on the legal legitimacy and eligibility of the petitioners who, I believe, are all Lusaka based who were neither voters, candidates, Attorney Generals nor elected, during the Kabushi and Kwacha parliamentary elections.
May be if it was a nomination petition under Art 52(4) it would have made sense as it empowers any person to challenge a nomination of a candidate while an election petition has owners prescribed in the subsidiary law-electoral process Act Sec 96 and 98 with reliefs outlined in Sec. 99.
To support my argument, Section 96 (1) aggressively advises that a question that may arise on the election of Member of Parliament may be heard and determined by the High Court upon an application made by any person to whom the question relates; or the Attorney General
Further, Sec. 98 of the Act illustratively guides that an election petition may be presented to the High Court by one or more of the following persons
(a) a person who lawfully voted or had a right to vote at the election to which the election petition relates [I doubt if Isaac Mwanza and the institute guys and Peter Sikamba are voters and voted in the just ended Kwacha or Kabushi by-elections]
(b) a person claiming to have had a right to be nominated as a candidate or elected at the election to which the election petition relates [I am very sure that all the petitioners had no right to be nominated as and were not candidates or elected in the just-ended Kabushi and Kwacha parliamentary elections];
(c) a person claiming to have been a candidate at the election to which the election petition relates [none of them was a candidate in Kabushi and Kwacha parliamentary elections respectively]; and
(d) the AttorneyGeneral [none of them was the Attorney General during the by-elections to assume the locus standi to petition out of 4 scenarios presented above].
Effectively, section 96(3) argues that, Subject to any rules of court, the powers, practice and procedure of the High Court in respect of the trial of an election petition shall apply, with the necessary modifications, to the hearing and determination of such applications
Sec 97(1) instructs that An election of a candidate as a Member of Parliament shall not be questioned except by an election petition presented under this Part-which is through the High Court not the CONCOURT.
Also the grounds for nullifying an election for a member of Parliament are well spelt out in sec 97(2) of the Act.
These include proven at trial stage to the satisfaction of the High Court, that a corrupt practice, illegal practice or other misconduct were committed in connection with the election by a candidate; or with the knowledge and consent or approval of a candidate or of that candidate’s election agent or polling agent; and the majority of voters in a constituency were or may have been prevented from electing the candidate in that constituency whom they preferred; and also
non-compliance with the provisions of this Act relating to the conduct of elections, and appears to the High Court that the election was not conducted in accordance with the principles laid down in such provision and that such non-compliance affected the result of the election; or the candidate was at the time of the election a person not qualified or a person disqualified for election
Clearly, sec 97(4) puts a caveat against nullifying an election based on commission and omissions by the Electoral commission of Zambia (ECZ) and its officers which seems to be one of the prayers of the petitioners.
The section states that An election shall not be declared void by reason of any act or omission by an election officer in breach of that officer’s official duty in connection with an election if it appears to the High Court that the election was so conducted as to be substantially in accordance with the provisions of this Act, and that such act or omission did not affect the result of that election
Apart from the technicality that may be arise in the face of the petitioners for by-passing the High Court to want their case heard and determined direct by the CONCOURT despite it being the first court of instance on election related petitions, the petitioners suffer from lack of legitimacy to undertake the exercise they have embarked on.
In addition, the grounds being advanced by the “petitioners” are far from being the grounds outlined in the enabling Act to warrant a trigger of a nullification of an election of an elected member of parliament by the High Court.
Further, questioning the power of the the ECZ to make regulations for better management of any election in this country is being naive to the fact that the law e.g. Constitution Art 57(3) and the Electoral Act Sec 125 empowers the ECZ to do so and trying to gag the ECZ not to make regulations it is supposed to do by any person is an illegality in itself and an abrogation of the Constitution and enabling Act
May i be allowed to refer the petitioners to Section 125 of the Act regarding the wide-ranging powers of ECZ to make regulations.
It guides that Subject to the provisions of the Constitution and this Act, the Commission may, by statutory instrument, make regulations providing for the procedure and manner of conducting elections
So how does one fault the ECZ for undertaking its constitutional and legal mandates. Let us not flood the Courts with straightforward things that need no court interpretation.
I see this petition highly likey being tossed out as brought in dead (BID) before the Concourt and for being in the right court at the wrong time or luckily, being referred back to the High Court for trial before heading to the Concourt on appeal and hope that the petitioners and their supporters will not accuse and call the Court names afterwards.
I submit
Mcdonald Chipenzi