POSTPONEMENT OF THE BY-ELECTIONS DUE TO DEATH OF FORMER HEAD OF STATE HAS NO LEGAL STANDING.
Unless proven to the contrary, the Electoral Commission of Zambia (ECZ)’s decision to postpone the nominations and by-election dates for the set of by-elections scheduled for April 7, 2021 has no legal foundation.
I tried to read the statement issued by ECZ to see whether i would find an citation of the law, regulation or rule that gives it power to postpone the nomination and election once set, i have found none.
Article 57 of the Constitution governs the by-elections in Zambia and clause 3 mandates the ECZ that, by regulation, shall set the place, where, and the date and time when, a by-election is to be held
This, the ECZ did religiously and nomination and by-election dates were set for the three local government by-elections.
The challenge is ECZ has not cited the law, rule and regulation used to postpone the nomination and election dates for the Mongu District chairperson and the other two local government by-elections scheduled for March 15 and April 7 respectively.
ECZ’s postponement of the three by-elections due to the death of the former president, Rupiah Bwezani Banda, has seems to have no backing of the law, rule or regulation but mere application of emotions by the Commission.
For avoidance of doubt, Section 57 of the electoral process Act No. 35 of 2016 advises that the Commission MAY postpone the polling day of a by-election if it is satisfied that
(a) the postponement is necessary for ensuring a free and fair election; and
(b) the polling day for the election shall fall within the period required by the Postponement of by-election.
In as much as “b” is respected, there are no compeling reasons to prove that the nominations and the by-elections would have not been free and fair due to the national mouring being observed to necessitate a postponement.
What would.have affected the free and fair election if the nominations and the by-elections were held as scheduled?
Didnt the Commission already set a precedence last year when it did not suspsend campaigns and the campaigns continued during the mourning period of the founding president Kenneth David Kaunda?
Weren’t the polititical parties on their own volition suspend the campaigns in honor of the founding president Kenneth David Kaunda who died in june at the hilt of the campaigns?
Where has this new realisation and decision come from of postponing an already set nomination and by-elections dates?
Is death of the former president or observance of a National Mourning one of the reasons ECZ can use to postpone nominations or election date?
Ironically, the nominations which were due today were three days away to the burial date and more than three weeks to the set election date?
The only law that mandates the ECZ to shift dates for election nominations and electiion itself is in Article 52(6) on account of death, disqualification and resignation of duly nominated candidate.
And also section 56 of the electoral process Act specifically for a polling station when conditions are not good for free and fair election at that particular station.
ECZ is setting a very bad precedent that will create serious challenges in future management of elections.
ELECTONS are about laws and not emotions.
McDonald Chipenzi
GEARS Initiative
15/03/2022