UPP CANDIDATE RESIGNS FROM THE PARTY IN LINE WITH ARTICLE 52(6) TRIGGERING THE CANCELLATION OF AND REQUIRE NEW NOMINATIONS FOR THE KABWATA BY-ELECTION
LIKE I stated in my earlier post today that the only way ECZ would have power to cancel the Kabwata by-election was for the UPP candidate to resign from the party than just withdrawing his candidature.
He has done it and within the expectation of the law to cancelled the election and call for fresh nominations and set a new election date when a candidate resigns after the close of nominations.
Now that it is clear that the Kabwata By-election is not going ahead and campaigns halted until fresh nominations and new date set, the question is whether or not the ECZ will be within the 90 days required by law to fill in a vacancy created within 90 days.
Article 57(1) commands that where a vacancy occurs in an office of a Member of Parliament, a by-election shall be held within 90 days of the occurrence of the vacancy.
I Think the ECZ has more than enough time to hold the Kabwata by-election within the 90 days required by the Constitution.
This is why i think it is very possible;
Late Levy Mkandawire died on 18 November, 2021 and by law, the Speaker of the National Assembly must, within 7 days of the occurrence of the vacancy, informs the Commission of the vacancy.
Article 72(😎 is instructive on the above thus:
*Where a vacancy occurs in the National Assembly, the Speaker Shall, within 7 days of the occurrence of the vacancy, inform the Electoral Commission of the vacancy, in writing, and a by-election shall be held in accordance with Article 57.
Assuming the Speaker took exactly 7 days to inform the Commission of the existence of a vacancy in the National Assembly after she officially informed the National Assembly of the demise of late Mr. Mkandawire on Nov 18, 2021, it meant that the ECZ officially received the Speaker’s communication of the Kabwata seat being vacant on Nov 25.
From Nov 25 to January 25, this translates to 60 days and 90 days are due only on February 25. This means that ECZ has 45 days within the 90 day deadline.
Therefore, even if ECZ delays the setting of another Kabwata by-election date up to January 25, it will still have 30 days within which to hold the by-election as guided by Article 52(6)
…the Electoral Commission shall cancel the election and require the filing of fresh nominations by eligible candidates and elections shall be held within 30 days of the filing of fresh nominations
Constitutional reforms urgently needed to mend these lacunaes.