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CIVIL ACTIVIST CHALLENGES CONSTITUTIONAL PROVISIONS ON ELECTIONS

By GRACE CHAILE LESOETSA

CIVIL activist Joseph Busenga has petitioned the Constitutional Court seeking an order that  section 97 (2) (a) of the Electoral Process Act no.35 of 2016 be removed from the statute books  as it aids corrupt practices while protecting undemocratically elected public officers.

Mr Busenga contends that the said article makes it difficult for the courts of law to nullify elections marred with intimidation, violence and corruption.

He has cited the Attorney General as the respondent in the petition.

Mr Busenga stated that Section 97(2)(a) of the Electoral Process Act are inconsistent with Articles 8 and 45(2)( a) and ( b).

Section 97 (2)(a) states: The election of a candidate as a Member of Parliament, mayor, council chairperson or councillor shall be void if, on the trial of an election petition, it is proved to the satisfaction of the High Court or a tribunal, as the case may be, that –  (a) a corrupt practice, illegal practice or other misconduct has been committed in connection with the election – (i) by a candidate; or (ii) with the knowledge and consent or approval of a candidate or of that candidate’s election agent or polling agent; and the majority of voters in a constituency, district or ward were or may have been prevented from electing the candidate in that constituency, district or ward whom they preferred.

Thus his argument is that whereas article 45 (2) (a) makes a mandatory guideline that the electoral process and system of administering elections should ensure they are free and fair, section 97 (2) (2)  basically provide that an election that is marred by corrupt practices, illegal practices or other practices can still be held to be valid and be regarded as free and fair as long as the said practices were not committed by the candidate or by his election or polling agent.

“That whereas the provisions of Article 8 provide for our national values as a sovereign Republic which include democracy, constitutionalism, good governance and integrity among other values, the provisions of Section 97(2)(a) of the Electoral Process Act in its current form does not seek to promote the said values but instead promotes, aids and abets corrupt practices and all manner of misconduct while giving safe haven to undemocratically  elected public officials while shackling adjudicative bodies’ ability to nullify such elections,” he stated.

Mr Busenga wants section 97 (2) of the Electoral Process Act no,35 of 2016 declared that it is contradictory with and  contravenes articles 8 and 45 (2)(a) and (b) of the constitution as amended by the Constitution of Zambia amendment Act no. 2,2016.

He wants the State to bear the costs of and incidental to his petition as well as an expedited hearing because of the current elections petitions in the High Court.

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