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