By Peter Sinkamba

WHY JUDGE MUNALULA’S DISSENTING JUDGMENT IS WRONG IN THE LATEST MALANJE AND LUSAMBO CASE

The key question which the Concourt was asked to determine in the latest Malanje and Lusambo case was whether “nullification” of an election is the same as “disqualification” of a candidate.

The majority of the judges reiterated their earlier decision in the case of the Law Association of Zambia v Attorney General (CCZ 51 of 2021) [2022] ZMCC 7 (22 March 2022) for judicial consistency.

In the said LAZ case, Concourt decided that “nullification” is not the same as “disqualification”.

The latest majority decision of the Concourt implicitly renders the action of ECZ to reject Hon. Malanje and Lusambo’s nomination papers null, void and illegal in terms of Article 1(2) of the Constitution of Zambia Amendment 2016.

Additionally, the latest Concourt decision implies that Hon Malanje and Lusambo are eligible to recontest their seats, and that their nomination papers ought not to have been rejected by ECZ.

In summary the reasoning of the majority is that whilst a provision that bars a candidate who cause a by-election exists (i.e Article 72(4)(h)), the framers of the Constitution did not create express authority for the Concourt to disqualify a candidate who opts to recontest the nullified seat.

The majority further stated that the only cure to this lacunae is for Parliament to amend the Constitution so that Parliament expressely empowers the Concourt to disqualify a candidate whose election or seat is nullified.

Furthermore, the majority argued that the Concourt lacks power to amend the Constitution as this is a preserve of Parliament.

The majority is right on this point from the premise of separation of powers as provided for in the Constitution.

However, in her dissenting judgment, Concourt Deputy President Justice Professor Margaret Munalula stated that the lacunae in Article 72 (4)(h) does not stop the Concourt from giving clarity on the matter or to provide an interpretation declaring clause (4) redandunt. She added the court had an opportunity to bring the matter to its conclusion by stating whether Joseph Malanji and Bowman Lusambo were disqualified in recontesting election in the current life of parliament as opposed to issuing a vague judgement.

In my view, the Justice Munalula was wrong in her dissenting judgment on two grounds.

First, the key question that was presented to court for determination was not whether Hon Malanje and Lusamba are qualified to contest the election after nullification of their seats. Rather, the question was on whether “nullification” is the same as “qualification”.

That being the case, the Concourt would have gone astray by making decisions on questions that have not been brought before it for determination.

The notion that Justice Munalula is advocating, where a judge can venture out to decide on matters that are not before him or her is called judicial activism. Whilst this approach is progressive especially on matters of human rights, it is alien to our system of judicial restraint and principle of separation of powers.

The second ground why I believe Justice Munalula is wrong concerns her proposal for the Concourt to declare Article 74(4)(h) redundant. Such as action by the Concourt would have been an illegality in terms of Articles 1and 3 of the Constitution in the sence that the validity or legality of any provision of the Constitution must not be subjected to any
challenge by any one, including the Concourt.

Furthermore, such an action by Concourt would have been null, void and illegal in the sense that the operation of any provision of the Constitution must never be affected by
any unlawful act by any person. The Concourt is not exempted from this restriction. It has no power, whatsoever, to overthrow, suspend or illegally abrogate any provision of the Constitution.

Thus, the best Justice Munalula could have done was to agree with other judges and be bound by the Court’s earlier decision or decisions for consistency.

According to JCC, several cases of inconsistency by a court or judge amounts to incompetence. So, the judge should always remember this requirement or risks being cited for incompetence.

If Concourt finds any lacunae, the best it can do is to advise the Executive to move a motion in Parliament to amend the Constitution to address such lacunae, and not to attempt to overthrow, suspend or illegally abrogate it.

I come in peace. May peace be with you.