By GRACE CHAILE LESOETSA
THE Constitutional Court has annulled the Kwacha Parliamentary elections, but aggrieved Joseph Malanji insists he possesses a Grade 12 certificate saying the judgement was already predetermined and not on merit.
The Court in a majority judgement yesterday declared vacant the Kwacha seat on grounds that Mr Malanji was ineligible to contest the August 12, 2021 elections as he did not have the requisite academic qualifications contravening Article 70(1)(d) of the constitution.
Article 70 (1)(d) states that a person is eligible to be elected as a Member of Parliament, if that person has obtained, as a minimum academic qualification, a Grade 12 certificate or its equivalent.
Reacting to the outcome of the judgement, Mr Malanji who was not present in court said in a phone interview that it was an attack on democracy because the ruling lacked facts.
“It is unfortunate that such a ruling was made. The Examination Council of Zambia in black and white submitted to them that I submitted my certificate. Even in Court, we produced the Grade 12 certificate but they kept a blind eye, they rejected that.
“And to come and make a ruling on something they rejected gives you a lot of questions. When we just saw the adjournments in this matter, we knew something was cooking. It is not a fair judgement, the minority was on point,” he said.
He affirmed that he would recontest the seat and was headed for another victory.
“I will go into Kwacha Constituency with no poster, no noise. But I will beat UPND in the by election. The people of Kwacha know what I am about,” he said.
In this matter, Mr Malanji, a former Foreign Affairs Minister in the Patriotic Front Government appealed in the Constitutional Court against the High Court decision to nullify his election as Kwacha Member of Parliament contending that the losing UPND candidate Charles Mulenga, failed to provide evidence to prove that he does not possess a Grade 12 certificate.
He raised 10 grounds of appeal among them that Judge Kazimbe Chenda erred in law and fact when he held that his election was void on account of eligibility.
He said that it was unfair for the Judge to shift the burden of proof from the petitioner to him when he ought to have known that “he who alleges must prove.”
But in a majority judgement delivered by Constitutional Court deputy president Judge Professor Margaret Munalula, said the High Court’s decision to annul the elections on the basis of a School certificate could not be faulted as there was sufficient evidence that Mr Malanji did not have one.
The court held that Mr Mulenga had laid enough evidence to his allegation, thus, the lower court was in order to shift the burden of proof to the former MP.
Justice Munalula said Mr Malanji was not ambushed with the allegation of the school certificate and would have ensured to prove that he had one by producing the document and the Returning Officer also failed to do the same in court.
But in a dissenting judgement, Constitutional Court Judge Mungeni Mulenga said the petitioner (Mr Mulenga) had not laid enough evidence to warrant the shift in evidential burden to Mr Malanji.
Justice Mulenga said the statements solicited from Mr Malanji and the Returning Officer in cross examination were not enough to shift the evidential burden and did not raise prime facie case that the appellant did not hold a Grade 12 certificate.
“The statement that the appellant left secondary school after three years in form three was not sufficient in itself and it is common cause that one can obtain a Grade 12 certificate or its equivalent at any time as long as they sit for the requisite examinations, “she said.
She said Mr Mulenga had the liberty to subpoena the Electoral Commission of Zambia (ECZ) to produce the certificate filed during nomination and he also had means to access the nomination papers and affidavit from the Returning Officers office.
Justice Mulenga opposed the majority judgement’s stance that the claims by Mr Malanji that he held a Grade 12 certificate was to his peculiar knowledge because the information about the nomination of a Parliamentary candidate was in public domain.
She said Mr Mulenga has the means to enter evidence in support of his allegations as making mere assertions in an election petition is not enough.