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ELIGIBILITY PETITION IS ABUSE OF COURT PROCESS, LUNGU’S LAWYER TELLS CONCOURT

By GRACE CHAILE LESOETSA          

PREESIDENT Edgar Lungu contends that the petitions challenging his eligibility to contest the 2021 elections are incompetent and an abuse of court process.

Thus Mr Lungu has submitted that the Constitutional Court dismisses the petitions and the petitioners should be condemned to pay costs.

In this matter, political analyst Dr Sishuwa Sishuwa, Legal Resources Foundation Limited and Chapter One Foundation in a consolidated petition are seeking a declaration that President Lungu, having been elected, sworn and held office twice, is not eligible for nomination and for election as president in the August 12 general elections.

The trio want a declaration that President Lungu’s nomination for election to the office of President in the August 12, 2021 election contravenes Article 106(3) of the constitution and the said nomination is null and void.

They are also seeking an order of certiorari that the nomination papers filed by President Lungu with the returning officer of the Electoral Commission of Zambia (ECZ) and all documents in support of his nomination for the election to the office of President in this year’s elections be removed forthwith from the Constitutional Court for purposes of quashing.

But  in his answer filed by State Counsel Bonaventure Mutale, President Lungu stated that Dr Sishuwa and others are abusing the court process as the matter they have petitioned has already been adjudicated upon in the cases of Dr Daniel Pule and others vs Attorney General and also Bampi Kapalasa and Joseph Busenga vs Attorney General and ECZ.

 He contended that ECZ chairperson Justice Esau Chulu, who is the Returning Officer in an election to the office of President in accordance with article 99, is the only person vested by the constitution, with the authority to reject or accept a nomination of the Presidential candidate.

Mr Lungu said no competent petition challenging the determination by the Returning Officer that his nomination as Presidential candidate is valid was or has been brought against the ECZ within the period prescribed by article 52(4) of the Constitution and the decision of the Returning Officer is therefore final.

He also submitted that the  petitions purportedly challenging the determination of the retuning officer are incompetent because ECZ has not been made  a party to the proceedings and a joinder of the commission outside the period prescribed by article 52 (4) of the constitution  would be unconstitutional and illegal, making the non-joinder fatal to the petitions.

“President Lungu stated that section 7(1) of the constitution (amendment) Act no. 1 of 2016 clearly showed that although the same Act provided for the continuation of the President in the office of president, did not clearly state provisions for how the period serves which straddled two constitutional regimes was to be treated in view of the change in the constitutional provisions from the limitation based on being ‘twice elected’ to ‘holding office for two terms. .

Therefore, the Head of State has agreed with Dr Sishuwa and others that the legislature did not address that aspect in the transitional provisions.

“The question, therefore, is: was it the intention of the framers of the Constitution to not provide for transitional provisions relating to this term?” he contended.

He stated that under the current constitutional regime, the holding of office as President is attached to the term of office as defined by article 106(1) and (6) read together.

He said that while article 106(1) provides that Presidential term is five years, article 106(6) defines what constitutes a term and any period of three years and above is a full term and a period less than three years is not a full term.

“These petitions are an abuse of the process of the court, incompetent, frivolous and vexatious and the first respondent prays: the Petitioners are not entitled to any of the reliefs claimed herein and that the petitions be accordingly dismissed and the petitioners may be ordered to pay the costs of these petitions,” Mr Lungu submitted.

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