UNDERSTANDING ART 72(4) INVOKED BY ECZ TO REJECT MALANJI & BOWMAN’S ATTEMPTED NOMINATION
Debate has raged whether or not the ECZ’s invocation of Art 72(4) to REJECT nomination papers from Joe Malanji and Bowman Lusambo was the right clause of the law to have been applied and whether it had that mandate.
My answer is that ECZ’s REJECTION of the duo’s nomination papers was deeprooted in the Constitution esp Art 52(2) driven by the demands in Art 72(4).
Varying interpretation of Art 71(4) have been advanced from both lawyers and non lawyers
Art 72(4) illustratively states that a person who causes a vacancy in the National Assembly due to the reasons specified under clause (2) (a)(resignation), (b)(disqualification) , (c)(violation of prescribed Code), (d) (party crossing), (g) (independent joining a party) and (h) (decision of the Court) shall not, during the term of that Parliament be eligible to contest an election
By a person we mean an individual, a company, or an Association of persons, whether corporate or unincorporated (Art 266)
From the above cited Art 72(4), the debate on disqualification or qualification of the duo does not arise and is not an issue at all.
Whether someone resigned, disqualified as a result of the decision of the Concourt or violated a prescribed code of Conduct is not an issue.
The issue is whether or not any of the above actions or reasons caused a vacancy in the office of the MP.
For instance, we must ask this question, did the *decision of the Concourt to uphold the High Court ruling to nullify Mala and Lusambo’s election caused a vacancy in the office of the MP in Kabushi and Kwacha?
If the answer is yes, then, Art 72(4) comes into motion and makes them ineligible to contest an election during the term of this parliament.
So, when ECZ is accepting nominations, the provisions of Art 72(4) will be on the sides as reference as they become one of the reasons to consider on whether any of the aspiring candidates did not cause a vacancy in the office of the MP as such a person is not ineligible to contest an election during the life of that parliament.
In this Art 72(4) the interest is in seeing that any person who caused a vacancy in the office of the MP does not contest.
It is *not on whether or not one has Grade 12 or disqualification under Art 72(2) but whether or one caused a vacancy in the office of the MP.
Therefore, Art 72(4) becomes a disqualification clause for a person who caused a vacancy in the office of the MP to contest subsequent by-elections during the life of that parliament.
It is for this reason that ECZ is on firm legal and Constitutional grounds to do what it did yesterday to REJECTthe nomination papers for MALANJI and Bowman.
In this regard, Cde MALANJI and Bowman were/are ineligible to contest the Kwacha and Kabushi by-elections respectively by the operation of Art 72(4) because they caused a vacancy in their offices of the Member of Parliament.
Had ECZ accepted their nomination papers, it would have been in breach of the Constitution of Zambia.
I submit
McDonald Chipenzi