Isaac Mwanza
WHO HAS MANDATE TO HEAR MATTERS AND APPEALS ABOUT CANDIDATES?
Today, I want to address one key issue about who has mandate to hear elections petitions for Members of Parliament and which Court should hear any appeal but before I do that let me state that the current discourse on the constitution and elections is very good for our constitutional democracy and citizens should continue to be encouraged to freely debate these issues, especially citizens who take time to understand their Constitution. Article 43 (2)(a) of the Constitution of Zambia commands:
“A citizen shall endeavour to acquire basic understanding of this Constitution and promote its ideals and objectives.”
Back to our first question, let’s begin with the first question. Can a person challenge the rejection or acceptance of a nomination of any candidate in an election?
Article 52(4) reads:
(4) A person may challenge, before a court or tribunal, as prescribed, the nomination of a candidate within seven days of the close of nomination and the court shall hear the case within twenty-one days of its lodgement.
Article 264 defines the word person to mean “an individual, a company or an association of persons, whether corporate or unincorporate.”
No doubt any individual, whether candidate or non-candidate, including companies or associations can challenge the decision of a Returning Officer to accept or reject, to declare the nomination valid or not valid, to determine that a candidate is eligible or not eligible.
Second question is which court will hear such challenges? Can a candidate file a local government petition or an before any court that he so wishes? Who role does the Supreme Court and Court have in election related matters?
1. The nomination and election petition for President are can only be heard and determined by the Constitutional Court. There are no appeals from the decision of the
Constitutional Court.
2. The nomination and election for Members of Parliament can only be heard by the High Court. All appeals against decisions of the High Court and Tribunal lie directly to the Constitutional Court.
3. The nomination and election for Mayors, Council Chairperson and Councillors can only be heard by the Local Government Elections Tribunal. And all appeals against decisions of the High Court lie directly to the Constitutional Court.
What role does the Court of Appeal and Supreme Court have in election petitions? None. Just like the Court cannot hear an appeal against the decision of the Local Government Tribunal, the Court of Appeal has no role in hearing any appeals on elections. What about the Supreme Court? Equally, the Supreme Court has no role in an election petition.
Elections are matters to do with the Constitution. And Article 1(5) of the Constitution states that “A matter relating to this Constitution shall be heard by the Constitutional Court.” See less