By KALOBWE BWALYA
THE Decision by the Electoral Commission of Zambia (ECZ) to stop Joe Malanji and Bowman Lusambo from contesting in the September 15 Kwacha and Kabushi constituency by-elections is null and void and any election held will be petitioned and liable to annulment, Tutwa Ngulube has said.
Assuming the election does go ahead, the high court can still nullify, Mr Ngulube said, citing the case of JERE v NGOMA (1969) ZR 106 (HC) : Where evidence shows that a candidate for election to Parliament was prevented, by the misconduct of other persons, from lodging his nomination papers with the returning officer, such misconduct essentially makes the election in the particular constituency void.
“Like in a normal election, the High Court can nullify where a candidate is stopped from contesting, the election. In this case Malanji and Bowman were stopped by the ECZ,” he said.
Mr Ngulube who was reacting to suggestions by Civil Rights activist, Bredner Changala and others that the Concourt decision was ambiguous, giving rise to different interpretations, said the superior court’s ruling was clear and unambiguous.
Mr Changala was quoted saying, the apprenticeship of the Constitutional Court judges in interpreting the constitution is a disservice to the political system. He said it was disgraceful that the jury could not interpret the dictates of the supreme law six years after the court was set as the decisions are always ambiguous. He was referring to the September 7 concourt ruling in the Malanji and Lusambo matter.
But Mr Ngulube said the Constitutional Court (concourt), made it clear that the two were eligible and therefore any contrary decision by the ECZ to stop the duo from contesting was null and void.
“The reason we went to court was because ECZ abrogated the law and said Malanji and Bowman did not qualify, according to their interpretation but the court interpreted the article differently, and found that a person who had a nullification can recontest,” he said.
The decision by ECZ to stop Mr Malanji and Mr Lusambo is null an void and any election held will be petitioned and annulled according to article, Mr Ngulube has said. The concourt made it clear that the two were eligible and therefore any contrary decision by the ECZ was null and void.
The decision of the court annulled the nomination. This article was saying if you lose an election you can not recontest. but this is not what this was saying. Malanji and Bowman do qualify. The next thing is since nominations have passed, government having lost the case, should have said that we are going to call for fresh nominations to allow the two people whom they though did not qualify. But they are now playing politics, saying you are not going to stand. That is why we went to the high court, so that the high can announce the elections be deferred or the election be moved forward.
Mr Ngulube said by operation of the law, once the decision is made, we are not even supposed to be arguing. This is setting a very dangerous precedent by not respecting the decision of the court unless the decision is in black and white.
We all know that the court entered a certain point. But for the minister of Justice who was even in court to stand uo and say “no as far as we are concerned, the court did not declare them eligible”, how was the court going to declare them eligible when the issue was not about eligibility? These are members of Parliament who stood in the past, stood in 2016 and 2021, so the issue of eligibility can not arise. If they deal with the question of eligibility under article 70 so the question of eligibility falls away.
