WHY DIDN’T THE CONCOURT DISQUALIFY BOWMAN LUSAMBO DESPITE FINDING HIM GUILTY OF ELECTORAL CORRUPTION, VIOLENCE, FRAUD…?
This is the question many are asking now hence the varying argument that he was eligible to recontest from some people including myself while others arguing to the contrary.
In my view, the Court was limited in law regarding the options to choose on such a matters because the law guides it on what to do.
Unlike in the Presidential Election petition, under this type of petition, the ConCourt is awarded with three options to choose from when arriving at its decision.
These are: DECLARE the election of President-Elect valid; NULLIFY the Election; and DISQUALIFY a candidate, [Art 101(6) & Art 103(3 of the Constitution of Zambia].
On the other hand, the Electoral Process Act section 99 prescribes that a relief to any Election petition for mayoral, ward and parliamentary brought under this section will be a) declaration that the election was VOID; and b) a Declaration that any candidate was DULY ELECTED.
From this view point, the High Court and Concourt had no madate to import the disqualification clause on Bowman Lusambo but stuck to the guidance in the law of either nullifying or validating the election and the former happened.
This makes Bowman Lusambo eligible to recontest his Kabushi Seat without any problem at first instance and will be declared by the Electoral Commission of Zambia (ECZ) as duly nominated.
This DULY NOMINATION declaration by the ECZ is what will trigger the invocation of the provisions of Art 52 (6) which will be patiently awaiting Bowman Lusambo as he does his nominations.
Above clause gives any person the right to challenge before the court the nomination of any candidate within 7 days of the close of nominations and the ConCourt is to hear the case within 21 days of its lodgement.
The success of this challenge against Bowman is very high esp availing the election petition ruling as proven evidence of Bowman’s being found guilty of participating in Electoral violence, corruption, FRAUD and other malpractice using his NATO forces.
This is so because corruption and malpractice committed by a candidate are reasons for invoking the provisions of clause 6 of Article 52 of the Constitution.
The ConCourt is most likely, not going to miss its decision against Lusambo, but to DISQUALIFY him from the Kabushi parliamentary by-election for proven CORRUPTION and Malpractice.
If this happens (disqualification), the ECZ will cancel the by-election, set a new date for fresh filing of nominations by eligible candidates and the by-election shall be held within 30 days of the filing of the fresh nominations.
In the filing of fresh nominations, Bowman Lusambo will not be eligible to do so as he would be found guilty of corruption and Malpractice and disqualified for election under Article 72(2)(b).
In addition, Article 52(6) will have to be summoned that empowers a court to disqualify a candidate for corruption, or malpractice after the close of nominations and before the election date.
With the possible disqualification of Bowman Lusambo ahead, Article 72(4) will be called upon which will make Lusambo not eligible to contest any election or hold public office during the term of this parliament (2021-2026)
To this end, the advice to Bowman Lusambo is to STAY AWAY from recontesting the Kabushi parliamentary by-election as he will be disqualified without doubt but wait for 2026 to start afresh his Political life.