THERE IS NO LACUNAE WITH RESPECT TO THE DATE FOR HOLDING A GENERAL ELECTION – LAZ URGES HH
The Law Association of Zambia (LAZ) has received numerous queries requesting its position and has equally noted public discourse on the issue of lacunae in the Constitution regarding the holding of a general election. This has arisen in light of the Republican President, His Excellency Mr. Hakainde Hichilema, who during the State of the Nation address to Parliament made on 13th September 2024, opined that the purported lacunae in the Constitution may result in elections being held beyond 8 or 9 years.
It is LAZ’s position that while there might be some lacunae in the Constitution of Zambia (Amendment) Act No. 2 of 2016, the date for holding a general election is cast in stone. The law on holding general elections is very clear, as Article 56(1) of the Constitution states that elections shall be held on the second Thursday of August, every five years after the last general election. Citizens decided that the date for holding a general election be immortalized in the Supreme law of the land, to guarantee the exercise of citizens’ right to elect leaders of their choice on a known and predetermined date.
LAZ is aware of the provisions of Article 52(6) of the Constitution, providing that where a candidate dies, resigns or becomes disqualified 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. This provision may appear to render credence to the Republican President’s concern about its potential impact to cause a postponement of the elections, however, it does not affect the date of a general election.
The Constitution in Article 266 defines ‘general election’ to mean Presidential, National Assembly and Local Government elections when held on the same day, while ‘election’ is defined to mean an election to the office of the President, National Assembly or Council. It becomes evident that it is only an ‘election’ and not a ‘general election’ which can be subject to cancellation by the Electoral Commission of Zambia under Article 52(6), should the prescribed eventualities arise.
There is, therefore, no provision in the Constitution permitting anybody or organ of the State including the Electoral Commission of Zambia to change or cancel the date for the general election.
LAZ, therefore, urges strict adherence to the Constitutional edicts to continue sustaining our robust and functioning democracy, epitomized through the right by citizens to elect their leaders and, if there are any doubts as to the import of its provisions, concerned parties are at liberty to invoke the jurisdiction of the courts of law, who have the final say in the interpretation of Constitutional provisions.
The Press Release on a matter of public interest and constitutionalism as well as the rights and liberties of citizens of universal suffrage, has been issued in furtherance of LAZ’s mandate under Section 4 of the Law Association of Zambia Act No 31 of the Laws of Zambia.
Dated this 14th day of September 2024.
Law Association of Zambia
1 Lagos Road, 10101, Lusaka
This email was sent to alimwamba@gmail.com
This write up from LAZ is not addressing relevant issues at hand. No wonder we have some lacunas in the Zambian constitution. Can LAZ reconcile the provision of Articles 52 and 56. While one Article stipulates when the General Elections shall be held, the other article gives authority to the ECZ to craw back this date of holding the elections in case of any eligible candidate resigning, dying etc. Why is LAZ trying to twist issues using provisions which are not specified in the constitution. So if ECZ can cancel elections of a president ,MPs and councillors then these cancelled elections cannot be held on the date specified in article 56.
distingish between general election and a mare election
Here is an association that is supposed to guide the nation on the Constitution bringing more confusion.
Tell us ba LAZ, According to(Amendment) Act No. 2 of 2016, the date for holding a general election is cast in stone, so what happens then when one of the Presidential candidates dies?
if here dies the constitutional is claer a 30 day period can be given
You just contradited yourself. You said 30 days period can be given in an event of a candidate dying just before elections, isn’t that what article 52(6) says that elections can be canceled for 30 days? Read what you have written if it not in agreement with article 52(6) and those agreeing with what the president said. Now taking what you have said, how would it be possible to keep the election date if a candidate dies just a day before elections? Won’t this mean if the 30 days would be observe then elections would be held after the set date?
@Straight forward. You are 100%RIGHT. This ZANZAM guy is just CONTRADICTING HIMSELF.
He is so confused !!
HH is 100% RIGHT . The constitution needs a parch up. But it’s NOT all that bad!!
What happens to the date that is cast in stone according to LAZ?
The current LAZ is a very big disappointment. Instead of taking time to study matter and give a more clear position to help the general public, they succumed to rushing to respond, thereby making the confusion even worse.
To start with, LAZ says the date when the general election shall be held is cast in stone is not true if we were to stick to strick adherence of the words or terms used where they have differentiated a “general election” and an “election”. The constitution stipulates a second Thursday in August meaning the the day of the week and month have been specified NOT the date. For instance, second Thursday in August 2021 was 12th, second Thursday in August 2026 will be 13th and second Thursday in August 2031 will 14th meaning the dates the elections will be held will be changing but the day of the week and month will be the same. Making the argument of differenting the terms used in the constitution fall apart as the claim by LAZ of the “date” being cast true.
Secondly, to “lock” a part of a law in law regardless of any conflict in other parts, terms like “not notwithstanding any law or provision in conflict with the same, the same shall take precedence over such part in conflict” but that is not the case with article 56(1) in the constitution which creates a lacuna in the law.
Am wondering how you praise singers above, who probably happens to be graduates of cattle breeding from NDC or even worse school drop outs, would come here to punish your hyper proriferated numb thumbs all in support of your ignorant man at community house. Shockingly enough in contra to what the legal experts have advised or rightly pointed out to.
Bane NOT everything is as easy as cattle raring.
Insulting people who have raised valid points about the provisions in the constitution will not solve the problem inherent in the Zambian constitution. You are entitled to blindly adhere to the so called legal experts from LAZ. We also have the right to our opinion on the matter. Instead of addressing issues at hand you continue singing this tired song of calling all people with different views as praise singers. What is shocking is for LAZ to fail to address the contradictions within the constitution based on articles 52 and 56!!
Lungisani is PF aligned cadre nothing good can come over from his mouth.
Top notch lawyer!
One who manipulated the constitution so he could go for a third term, but failed to do justice to the constitution
Even LAZ has joined UKA and PF they are quick to react than studying the matter raised by the President. No wonder it is full of Lacunas. What type of lawyers is UNZA producing or are they from UNLUS or online law graduates?
The President is clear. Not that he wants to go for 8-9 years…aah imwe the country shouting like they have heard the opposite.
The Lacuna on Presidential Elections can only happen if one dies, resigns or withdraw after nominations and election date already set. It means you have to start all over again! Postponed! Meanwhile the incumbent is still holding the instruments of power. Unfortunate situations can happen following neach other there is going to be postponement again…
This is a Lacuna it should be amended.
Any one who attempts to change Constutional provisions should do so with the involvement of all stake holders. The church, civil society, Opposition political parties, and the Zambian people..The cost for this exercise shouldn’t be a hindrance. Money should and will be found. Hakainde can’t be left to his whims to change even a word in the constitution. The so called lacuna he is parading is a bait..just to hoodwink the Zambians. This is a see through President, whose schemes can be seen miles away.
Theres something this man wants to do with our constitution, and he shouldn’t be given an opportunity. Rumour has it he wants to increase the number of Parliamentary seats in his strongholds using a flawed delimitation exercise. We will end up with Choma having 8 parliamentary seats! He also wants to go back to the Provincial Assemblies provisions , a sure route to Federalism. He also wants to ensure ECL is never on the Ballot again..And there are noises on Provisions for a Coalition government thus doing away with the 50+1 provisions, increase in the years for the presidential term in office, and getting rid of the running mate provisions.
The people of Zambia should identify the Lacunae and accordingly advise on the changes..And this should be done after 2026. This has been our approach to constitutional matters. And the Technical committee which drafted the 2016 draft committee is around. It can be reconstituted.
Hakainde has no credibility to be allowed to tamper with our constitution..His record on governance and respect for democratic Institutions leaves much to be desired. …from appointments to ECZ and it’s conduct, appointments to the Constutional Court, High Court Judges, HRC, Police Commissioners, Mopani, KCM transactions, Lusaka Ndola dual Road, issues with the arms of Government,( Executive, Legislature, Judiciary) , the charade at the Registrar of Societies, Bye Elections….and on and on.
I wouldn’t give this man an inch , to even change a comma, or full stop in our constitution. Period.
True to your name you like to hallucinate. President HH never said that he wants to change the constitution on his own but asked us Zambians to correct the gaps in the current constitution but instead you start talkig about imaginary things which only you know about. And it’s funny you say the constitution should be looked at after 2026, what makes you he will not be president after 2026? It seems PF supporters have not learnt anything from the 2021 elections and are still under a misguided belief that they will win the 2026 elections like the claim of handing over power to himself and beating HH by over 500,000 votes but we all know what happened. By the way, article 52(6) in its current form works to the advantage of the incumbent and I would have expected that they would jumped on this opportunity to ensure it can’t be abused but alas they are blinded by hate such that they can’t see that fixing this lacuna would work to their advantage.