By Sinkamba Peter
SIMPLIFYING THE DILEMMAS SURROUNDING THE REJECTION BY ECZ OF MALANJE & LUSAMBO’S NOMINATION PAPERS
Yesterday, 25 August 2022, ECZ rejected the nomination papers for Hon Joe Malanje and Bowman Lusambo for election to office of Member of Parliament for Kwacha and Kabushi constituencies following the declaration of the seats vacant by the Constitutional Court earlier in the year.
From the outset, let me clarify that in relation to elections and any other interpretations provided for in Article 266, the Constitution of Zambia Amendment 2016 has no such term as “nullification”. So, I will not use this term.
The terms recognized by Constitution in relation to elections of Members of Parliament are “reject nomination papers”, “qualified or eligible for election as Member of Parliament”, “disqualified from election as Member of Parliament”, “valid nomination” and “vacancy of office of Member of Parliament.”
Furthermore, always remember that according to Article 1(1) of the Constitution, the Constitution is the supreme law of the Republic of Zambia and any other written law, customary law and customary practice that is inconsistent with its provisions is void to the extent of the inconsistency.
Additionally, remember that according to Articles 1(2) and 1(3), an act or omission that contravenes the Constitution is illegal, and that the Constitution binds all persons in Zambia, State organs and State institutions, including ECZ and the Constitutional Court.
The above entails that no one, including the Concourt should, in its interpretation of the Constitution import words to replace words provided for in the Constitution.
Having provided the above background, let me address the Constitutional dilemmas the Nation is confronted with following the rejection by ECZ of the nomination papers presented by Malanje and Lusambo at yesterday’s nominations.
According to the Constitution, rejection could only be done by ECZ pursuant to Article 52(2) which provides that a returning officer shall, immediately on the filing of a nomination paper, in accordance with clause (1), duly reject the nomination paper if the candidate does not meet the qualifications or procedural requirements specified for election to that office.
Put simply, according to Article 52(2), there are only two lawful grounds that ECZ may reject a nomination paper. The first one is when a candidate does not QUALIFY to be elected as a Member of Parliament. In this regard, the Constitution has provided qualifications for election as Member of Parliament in Article 70(1). According to Article 70(1), a person is eligible to be elected as a Member of Parliament, if that person is a citizen of Zambia; is 21 years old and above; is a registered voter; has obtained Grade 12 certificate; and has declared assets and liabilities.
However, Article 70(1) has a proviso in clause (2) which provides for DISQUALIFICATION of persons for election as a Member of Parliament. According to the proviso, a person is disqualified to be elected to the office of Member of Parliament if that person is nominated as presidential candidate in a presidential election; is a public officer or Constitution office holder; is a judge or judicial officer; has a mental disability; is undischarged bankrupt; has in the immediate 5 years served a prison term exceeding 3 years; has been removed from office for gross misconduct; is an electoral officer.
In relation to Malanje and Lusambo, are they, according to Article 70(1) cited above qualified or eligible for election to the office of Member of Parliament? Put differently, are they citizens of Zambia? Yes they are. Are they 21 years and above? Yes they are. Are they registered voters? Yes they are. Did they present Grade 12 certificates? Yes they did. Did they declare their assets and liabilities? Yes they did. So, according to Article 70(1) both are qualified or eligible for election as Member of Parliament.
Coming to the proviso, which provides for disqualifications for election to the office of Member of Parliament, are Malanje and Lusambo nominated for election as president? No, they aren’t. Is there currently a presidential election taking place? No there isn’t. Are Malanje and Lusambo public officers or Constitution office holders? No they aren’t. Are they judges or judicial officers? No they aren’t. Do they have a mental disability? No they don’t. Are they declared bankrupt by any court of law? No they aren’t. Have they served a prison sentence of 3 years and above in the last 5 years? No they haven’t. Have they been removed from office for gross misconduct as interpreted in Article 266 of the Constitution? No they haven’t. Are they electoral or election officers? No they aren’t.
From the above analysis, it is clear that pursuant to Article 70(1) and (2), Malanje and Lusambo are qualified for election to the office of Member of Parliament.
Moving to the next point, since both Malanje and Lusambo duly submitted their nomination papers to ECZ, but were rejected by ECZ allegedly on account of Article 72(4), is Article 72(4) a PROCEDURAL requirement contemplated in Article 52(2)? No, Article 72(4) is not, and can never be a procedural requirement contemplated in Article 52(2).
In view of the foregoing, the next question that begs an answer, which actually confronts the Constitutional Court in addressing the Constitutional predicament of Malanje and Lusambo in relation to the September 15 elections in Kwacha and Kabushi is whether or not the nomination papers presented by the two at yesterday’s nominations sessions are valid.
This question brings us to Article 71 of the Constitution which deals with the validity of nominations. Article 71 provides that a nomination for election to the National Assembly is valid if the candidate—
(a) has paid a prescribed election fee to the Electoral Commission; and
(b) is supported by at least fifteen persons registered as voters in the constituency in which the candidate is standing for election.
In relation to Article 71, the questions that beg answers are: did Malanje and Lusambo pay the prescribed election fees? Yes they did. Were they supported by 15 registered voters? Yes they were. Thus, pursuant to Article 71, are their nominations for election to the office of Member of Parliament valid? Yes they are.
The next and probably the most intricate question to confront⁸ the Constitutional Court relates to Article 72(4). This Article provides that a person who causes a vacancy in the National Assembly due to the reasons specified under clause (2) (a), (b), (c), (d), (g) and (h) shall not, during the term of that Parliament— (a) be eligible to contest an election; or (b) hold public office.
In relation to Malanje and Lusambo, the provision which is highly contested is Article 72(4)(h). This Article provides that a person who has been “disqualified” as a result of a decision of the Constitutional Court shall not be eligible to contest in an election during the term of that Parliament.
The dilemma the Constitutional Court is facing is whether in declaring the office of Member of Parliament for Kwacha and Kabushi vacant by the Court at the same disqualified Malanje and Lusambo to contest the election as Member of Parliament in the life of this Parliament. Did the Constitutional Court explicitly declare that Malanje and Lusambo are DISQUALIFIED or ineligible to contest the election during the term of this Parliament? The answer is no. The Constitutional Court did not make such a declaration.
The next question is: if the Constitutional Court did not explicitly disqualify Malanje and Lusambo in its judgements, are their nominations valid? Yes, the nominations are valid.
The final dilemma concerns the matter that has been taken to the Constitutional Court by Malanje and Lusambo. I will not dwell on the merits of the application for obvious reasons. My interest is on whether a fresh nomination ought to take place in the unlikely event that Malanje and Lusambo’s application is not successful.
From the analysis above, it is clear that the nominations of Malanje and Lusambo are, according to the Constitution, are valid, and can only be invalidated by the Constitutional Court.
However, if the Constitutional Court decides to disqualify the duo, will the election proceed as scheduled without PF being represented in Kwacha and Kabushi?
This question brings me to Article 52(6) which provides that where a candidate dies, resigns or becomes disqualified in accordance with Article 70, 100 or 153 or a court disqualifies a candidate for corruption or malpractice, after the close of nominations and before the election date, the Electoral Commission shall cancel the election and require the filing of fresh nominations by eligible candidates and elections shall be held within thirty days of the filing of the fresh nominations.
From the above citation, it is clear that a candidate can only be disqualified from an election pursuant to Articles 70, 100 or 153. Or otherwise by the decision of the court on grounds of CORRUPTION and MALPRACTICE AFTER CLOSE OF NOMINATIONS BUT BEFORE ELECTION DATE. So, the period for disqualificatication on grounds of corruption and malpractice is clearly stipulated. In relation to this election, it is for corruption and malpractice from yesterday 15.00hrs when nominations closed up to 06.00hrs on 15th September. Did Malanje and Lusambo involve themselves in corruption and malpractice in this election? No they didn’t.
In view of the forgoing, in the unlikely event that Malanje and Lusambo are not disqualified pursuant to Article 52(6) as explained above, the Constitutional Court is compelled, by the Constitution, to cancel the election and order fresh nominations and election within 30 days of the cancellation.
Meantime, the Constitutional Court has set 6 September for hearing of the application by Malanji and Lusambo, and 7 September for delivery of the abridged judgement.
Let’s wait and see what happens
I don’t agree with you when you tie the text of a court ruling to decide the legibility of a candidate beyond that Court ruling. Rather talk about the implications of the ruling and not how it was worded. Don’t mislead the nation.
You allege that: “Have they been removed from office for gross misconduct as interpreted in Article 266 of the Constitution? No they haven’t”.
That’s where your biased interpretation of the statutes betrays you.
If not for gross misconduct, on what basis did the high court nullify the elections of the two PF uneducated hooligans, a decision unequivocally upheld by the constitutional court?
The constitutional court, had no basis to disqualify the duo because that wasn’t the matter brought before it. Moreover, the court had no evidence before it the duo actually filed in nominations to recontest the seats, which action would’ve warranted disqualifications.
Now that the two PF miscreants have moved to recontest, the court can rule to stop them in their tracks.
The ECZ is on firm ground and cannot be faulted for rejecting the squalid nominations.
Aspirino you replied well to this VERY USELESS AUTHOR . Lusambo and Malanji misconducted themselves during 2021 elections. The was TOO MUCH MALPRACTICE especially by lusambo. The reason they are DISQUALIFIED…!! NO all that hitting about the bush.
Pf lawyers have got that cheap strategy of splitting up the constitution and their reference to it(constitution) is always flimsy
Bow and mulanje’s debacle is really frustrating to all law abiding and we’ll informed Zambians
A lot to read through. A bit too desperate to defend the dual in question in my opinion.
Maybe to make this simple as some one as stated, if someone is holding a job as a lawyer in a law firm is found guilty of a criminal offence and is dismissed right after following through court proceedings, Can he / she re-apply for the same position when it is advertised?
This simple example above carries within it a logical and reasonable solution to the current easy case before us.The legal jargon expressed only seeks to manipulate us. The answer is no, he / she is stained with a criminal record. Intergrity and Honesty is needed first. Therefore the shareholders of the company will simply tell that individual that he is disqualified due to the criminal record. This principle applies to a house worker, a doctor, teacher, President or in this case a politician. I leave it to the legal experts to legally explain it from their perspective.
Similarly, we the shareholders through the prescribed systems and processes of law to guide us, have established that the dual are guilty of criminal offenses which are grave to allow them to qualify to manage our assets.
Why is it so difficult to make the simple decision to reject criminals from participating in a noble process. Are we afraid to call them criminals? This is the judgement from the Courts of Law. They are not even trying to refute their verdict. Who are we to ignore this fact.
Question is are they criminals by the definition of the verdict. If yes then we must not allow them any where near the corridors of power it’s the logical and honorable thing to do.
I realise after all that explanation given you still can not even discuss with us regarding the guilt status. That is because you know the boat sinks in this territory. So you are avoiding this obvious position and concentrating on terminologies which is a waste of time in our humble opinion.
State your case which defends their innocence of criminal engagement. If you can not. Please sit down. You are actually wasting our previous time and resources. As long as the judgement and verdict pronunced on them as criminals stands they are forever known as criminals who should serve the jail sentence.
The only why to change this status is to appeal the case and win the matter. This as seen has failed. If this is not possible, they remain disqualified regardless of how many statutory clauses you quote. Simply put they are pronunced criminals. That’s it.
Mr Sinkamba says “This Article provides that a person who has been “disqualified” as a result of a decision of the Constitutional Court shall not be eligible to contest in an election during the term of that Parliament.THEN HE GOES AND SAYS “The dilemma the Constitutional Court is facing is whether in declaring the office of Member of Parliament for Kwacha and Kabushi vacant by the Court at the same disqualified Malanje and Lusambo to contest the election as Member of Parliament in the life of this Parliament. Did the Constitutional Court explicitly declare that Malanje and Lusambo are DISQUALIFIED?” THE DISQUALIFICATION ARISES FROM THE FACT THAT THEY CAUSED A VACANCY IN PARLIAMENT. Article 72(4) provides that a person who causes a vacancy in the National Assembly due to the reasons specified under clause (2) (a), (b), (c), (d), (g) and (h) shall not, during the term of that Parliament— (a) be eligible to contest an election; or (b) hold public office. WANVESESA! WA-BELIEVER?
Chizungu is very difficult!
It’s down to Semantics!
Whoever wrote our Constitution does not understand English!
These grammatical errors and poor sentence construction have created too many lacunae in the Supreme Law.
How do you have a Constitution that is so vague on most important issues?
How on Earth do you have a Constitution that does not deter terrorists and bandits from contesting future elections?
Maybe we need to use Vernacular for our Constitution.
English has failed us!
John Sangwa SC fought hard about the ill qualified Constitutional court judges being appointed. This is the result, confusion in its judgement wording leaving a lot of different interpretations. What happened to clarity for avoidance of doubt populary used by lawyers?
I’m beginning to doubt the capability of our lawyers in drafting a constitution. Did the drafters of the constitution rearly understand why we the people wanted those who win an election fraudulently to be disgualified.
You are a thief but the court did not declare you a thief, such nonsense