Hichilema not wrong for renewing Emily Sikazwe’s contract at ECZ – ConCourt
THE Constitutional Court says former ECZ chairperson Esau Chulu and his vice Emily Sikazwe did not have the latitude to extend the latter’s stay in office which was coming to an end on June 17, 2022 to October 5, 2027.
It noted that President Hakainde Hichilema acted within the law when he notified Sikazwe that her contract for the position of vice-chairperson of the Electoral Commission of Zambia (ECZ) would not be renewed and instructed her to proceed until she bowed out of employment on June 17,2022.
In this matter Sikazwe challenged her untimely dismissal from employment by President Hichilema.
She sought an order that the decision by the head of State to terminate her contract of employment lacked merit.
The former vice ECZ chairperson further sought an order that President Hichilema contravened Articles 216 and 242 of the Constitution chapter 1 of the Zambian laws read with Section 5(3) and 6(1) of Act no. 25 of 2016 as Amended by Act no.5 of 2019 of the Electoral Commission Act.
Judge Ann Sitali who delivered the judgement on behalf of Palan Mulonda and Mary Mapani said the provision on which Sikazwe anchored her petition was quoted out of context because her appointment by for president Edgar Lungu was subject to ratification.
“When sections 6(1) and 5(3) are read together, it is evident that the intention of Parliament was that a member of the ECZ be it the chairperson, vice chairperson or an ordinary member, would only serve for a term of seven years in total subject to renewal for another final term,”judge Sitali said.
She ruled that in his letter of appointment Lungu specified that Sikazwe would serve in her new role from the date of ratification by the National Assembly on June 17 2015 to June 17, 2022 making it a period of seven years when she was appointed as a member of the Electoral body.
“Since the former president as the appointing authority, specifically stated that Sikazwe’s appointment would take effect from the date of her ratification and would expire on June 17,2022, Sikazwe and Chulu were not at liberty, in the contract they executed, to alter the tenure of office specified by the president,”judge Sitali said.
“The petitioner’s contention that the tenure of office specified in her appointment letter was an oversight on the part of the former president is not supported by any evidence to that effect.”
Judge Sitali ruled that while Sections 216, 242 and 270 stipulate that while the ECZ is independent in its operations and in the performance of its functions, when the President exercises power to discipline or remove a member of the ECZ from office under Article 270 read with section 5(😎 and (9)(a) of the Act, he cannot be said to interfere with the independence of the ECZ as the Constitution gives him that power.
She said President Hichilema did not remove Sikazwe from office or terminate her contract as ECZ vice chairperson as she alleged, as the contract was not renewed after it expired.
“The incumbent President’s decision not to renew the petitioner’s tenure of office as vice-chairperson of the ECZ was in accordance with the provisions of Section 5(3) of the Act,”judge Sitali said.
She directed the Jury declined to declare President Hichilema’s decision to prematurely terminate her Sikazwe’s employment as vice-chairperson of the ECZ of no legal effect.
“We also decline to grant an order that the President contravenes Articles 216 and 242 of the Constitution as read with sections 5(3) and 6(1) of the Act. The claims for damages and costs similarly fail. In sum ,the petition wholly fails and is dismissed. Each party shall bear own costs,” said Judge Sitali.
By Mwaka Ndawa
Kalemba