By GRACE CHAILE LESOETSA GOVERNANCE Elections Advocacy Research Services Initiative Zambia Limited (GEARS) has filed a petition in the Constitutional Court against nine PF Members of Parliament whose seats were nullified by the High Court seeking an order restraining them from participating in any Parliamentary business.
The nine MPs are Bowman Lusambo (Kabushi ), Joseph Malanji (Kwacha) , Mutotwe Kafwaya (Lunte), Sibongile Mwamba (Kasama Central), Luka Simumba(Nakonde), Allan Banda (Chimwemwe), Taulo Chewe (Lubasenshi), Kalalwe Mukosa(Chinsali) and Christopher Chibuye (Mkushi North). The Attorney General has also been cited as the 10th respondent in the matter.
GEARS , a non-profit organisation, seeks a declaration that the nine having been declared by the High Court as not duly elected MPs , by attending sessions of the National Assembly and participating in Parliamentary business breached the constitution and the Electoral Process Act (EPA).
It wants an order barring the said MPs from attending sessions and otherwise masquerading as elected MPs under further order of the court.
The petitioner wants the court to declare that the nine seats are vacant and would remain so until by elections is held.
GEARS wants the Con-Court to order the High Court registrar to deliver a report containing the name and particulars of all persons implicated in acts of corrupt and illegal practices during the trials of the petitions to the Electoral Commission of Zambia and the Director of Public Prosecutions.
It stated that the respondents have and continue to contravene Article 68(1),72(2) and 73(4) of the Constitution as read together with Section 108 of the EPA no. 35 of 2016.
Section 108 of the EPA states: At the conclusion of the trial of an election petition, the High Court or a tribunal shall determine whether the respondent, or any other, and which, person, was duly elected, or whether the election to which the election petition relates was void, and the Registrar or designated person shall, as soon as is practicable, submit a copy of such determination to—756 No. 35 of 2016] Electoral Process Conclusion of trial of election petition
(a) in the case of an election petition in the High Court, the Speaker of the National Assembly and the Commission; and
(b) in the case of an election petition in a tribunal, the
Commission.
(2) Where the High Court or a tribunal determines that the respondent was duly elected, the election shall be and remain valid.
(3) Where the High Court or a tribunal determines that the respondent was not duly elected but that some other person was duly elected, that other person shall be deemed to have been elected accordingly.
(4) Where the High Court or a tribunal determines that the respondent was not duly elected, and that no other person was duly elected, at the election concerned, the vacancy in the membership of the National Assembly or a Council in respect of which that election was held shall be deemed to continue until duly filled.
(5) Where a determination under subsection (1) alters the results of an election as previously declared, the Commission shall publish the results as so altered in the Gazette.
(6) Where it appears to the High Court or a tribunal upon the trial of an election petition that any corrupt practice or illegal practice has been committed by any person in connection with the election to which the election petition relates, the High Court or tribunal shall, at the conclusion of the proceedings, prepare a report stating
(a) the evidence given in the proceedings in respect of the corrupt practice or illegal practice;
(b) the names and particulars of any person by whom the corrupt practice or illegal practice was, in the opinion of the High Court or a tribunal, committed;
(c) in the event that there is an appeal, the Constitutional Court shall prepare the report, except that the Court shall not state the name of any person under this paragraph unless the person has been given an opportunity of appearing before the Court and of showing
cause why that person’s name should not be so stated.
(7) The Registrar or designated person shall deliver a copy of
every report prepared by the High Court or a tribunal under
subsection (6) to—
(a) the Commission; and
(b) the Director of Public Prosecutions.
