By Isaac Mwanza
Introduction
Once again, we are in an election year and the requirement of a Grade 12 Certificate or its equivalent to contest either a presidential, parliamentary or local government election has emerged but this time around with a final and decisive 144-page decision delivered on 10th March, 2021 by the Constitutional Court, the highest court of the land on constitutional matters. What are the implications of this judgment on the requirement of a Grade 12 Certificate or its equivalent?
*Brief facts of the case*
Bizwayo Newton Nkunika, a losing parliamentary candidate for Lundazi Central in the elections held on 11th August, 2016, challenged the continued holding of office by the Respondent, Lawrence Nyirenda, as member of Parliament for Lundazi Central on the ground that he did not meet the minimum academic qualifications as prescribed under Article 70(1)(d) of the Constitution of Zambia. He also alleged that the Electoral Commission of Zambia breached the Constitution by allowing Mr. Nyirenda to contest the Lundazi Central Constituency seat without meeting the minimum academic qualification.
Mr Nkunika denied the allegations by stating that he was the holder of qualification equivalent to Grade 12 Certificate. At the time of filing his nomination, he had a General Certificate of Education (G.C.E) Examinations of 2013 from the Examinations Council of Zambia, a Zambia National Service Certificate of Military Training, Computer Course Certificate, Theory of Music Certificate and Theological Tutors Certificate.
The Court held that:
(i) The use of the words “has obtained” in Article 70(1)(d) means a candidate’s minimum qualifications must be in place at the time at the time of nomination and election.
(ii) The term “Grade 12 Certificate” in Article 70(1)(d) of the Constitution is synonymous to the term “School Certificate”, a certificate awarded to persons who pass in a minimum of six (6) subjects including English Language and one of the six subjects should be at a credit level.
(iii) The term “equivalent” to Grade 12 Certificate as envisaged in Article 70(1)(d) of the Constitution relates to qualifications that are comparable in value, amount, meaning and functions and are neither inferior nor superior to a School Certificate. The qualifications may include academic qualifications that have been obtained in other jurisdiction but which are equivalent to a School Certificate in Zambia.
(iv) A Grade 12 Certificate of Education (GCE) as envisaged in under Article 70(1)(d) of the Constitution if the number of subjects passed and grades obtained satisfy the requirement for obtaining a School Certificate; A candidate must have a pass in at least six (6) subjects including English language or at least five (5) subjects one of which must be a credit or better.
(v) A tertiary, vocational, craft, trade or apprenticeship certificate is not equivalent to a Grade 12 Certificate (School Certificate) as it is not comparable in value, amount, meaning and functions to a Grade twelve (12) Certificate.
*Why was Lawrence Nyirenda not disqualified?*
At the time of filing of nominations, there was no clear understanding of what constituted a Grade 12 Certificate or its equivalent. Furthermore, the High Court, in the case of Sibongile Zulu v. Attorney General, had also defined what was considered “equivalent”, the definition which has now been overruled by the Constitutional Court.
In May 2021 elections, the Commission there shall be rigorous requirement to ensure those who have the GCE Certificates ensure that those certificates conform to the equivalent as defined by the Court. What about the other higher qualifications which persons may have obtained, can they be deemed as equivalent to the GCE? The Court was clear that the equivalent was that the qualifications may include academic qualifications that have been obtained in other jurisdiction but which are equivalent to a School Certificate in Zambia, those qualifications must neither be inferior nor superior to a School Certificate issued in Zambia.
Interestingly, even tertiary, vocational, craft, trade or apprenticeship certificate are not equivalent to a Grade 12 Certificate (School Certificate) as they are not comparable in value, amount, meaning and functions to a Grade twelve (12) Certificate