You’re fired, Concort tells Emily Sikazwe

By GRACE CHAILE

THE Constitutional Court says former Electoral Commission of Zambia (ECZ) Commissioner Emily Sikazwe’s contract was rightfully terminated as President Hakainde Hichilema has powers to discipline or remove a member of the Commission.

The court states that a holistic reading of Articles 216,242 and 270 reveals that while the ECZ is independent in its operations and in the performance of its functions, when the President exercises power to discipline or remove a member from office under Article 270 read with section 5(8) and (9) (a) of the Act, he cannot be said to interfere with the independence of the electoral body as the constitution itself gives him that power.

This is according to a judgement rendered by a panel of Judges Annie Sitali, Palan Mulonda and Maria Mapani Kawimbe in a matter in which Dr Sikazwe petitioned the Court challenging the decision by President Hichilema to untimely terminate her employment as vice-chairperson of the ECZ before its expiration in 2027.

In the petition, Dr Sikazwe contended that President Hichilema contravened article 216 and article 242 as well as section 5 (3) and 6(1) of Act no. 25 of 2016 as amended by Act no. 5 of 2019 of the Electoral Commission Act as it shows a clear indication by the President to replace the rule of law with the rule of man.

Dr Sikazwe in her submissions to the Constitutional Court, contended that it was the duty of the Commission through its chairperson to deal with establishing its members’ tenure pursuant to the law and also address leave issues, and not the President.

She added that according to a letter by Mr Hichilema informing her of the non-renewal of the contract and directing her to proceed on forced leave was in breach of Article 216 as he hijacked its independence.

But the Constitutional has adjudicated that President Hichilema was within the confines of the Constitution when he informed the petitioner of the non-renewal of her contract.

“Article 270 of the constitution which is set out is couched in clear and unambiguous terms. A person vested with the power to appoint a person to hold or act in an office is also bestowed with the power to, amongst other things, exercise disciplinary control over the person holding or acting in the office in question and even to remove that person from office,”

Judge Sitali who read the judgement said in the case before court, the President did not remove or terminate the petitioner’s contract but had expired.

“That being the case, we find that the incumbent President acted within the law when he notified the petitioner in the letter dated June 7,2022 ,that her appointment as vice-chairperson of the ECZ would not be renewed for another term and instructed her to proceed on paid leave pending the expiration of her tenure of office on June 17,2022. The incumbent President’s decision not to renew the petitioner’s tenure of office as vice-chairperson of the ECZ was in accordance with the provisions of section 5(3) of the Act,” she said.

She said that according to the appointment letter by former President Edgar Lungu, dated June 16, 2020, he specified that she would serve in her new role (vice-chairperson) from the date of ratification by the National Assembly up to June 17, 2022, resulting into a period of seven years from June 17, 2015 when she was first appointed as a member of ECZ.

“Since the former President as the appointing authority, specifically stated that the petitioner’s appointment would take effect from the date of her ratification and would expire on June 17, 2022, the petitioner and the chairperson of ECZ (Justice Essau Chulu) were not at liberty, in the contract they executed, to alter the tenure of office specified by the President,” she said.

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