By GRACE CHAILE LEOETSA
THE Kabushi and Kwacha parliamentary by-elections will not proceed unless the order of stay by the High Court granted to Bowman Lusambo and Joseph Malanji is discharged, the Constitutional Court has ruled.
And in a dissenting judgement, ConCourt Judge Mungeni Mulenga has admonished the Electoral Commission of Zambia (ECZ) for attempting to proceed with the by-elections in Kabushi and Kwacha constituencies respectively, charging that the conduct of the Commission had the potential to cause anarchy in the electoral system.
Meanwhile, the ConCourt has said the by-elections could be held outside the 90 days provided for in the Constitution.
Justice Sitali and Justice Mulongoti contended that the ECZ did not contravene the constitution when it did not cancel the elections and call for fresh nominations and consequently the holding of the elections in 30 days because there was a High Court Order that had staued the by-elections.
The High Court will therefore have to deliver its judgement which was arrested by the State on whether Mr Lusambo and Mr Malanji should be allowed to participate in the by-elections.
In a judgement delivered by three Constitutional Court Judges, Justice Ann Sitali, Judith Mulongoti and Justice Mulenga Mungeni, the ConCourt recognized that the High Court Order to stay the election in Kabushi and Kwacha was still in effect and unless it was discharged, the by-elections shall not proceed as was announced by the ECZ.
In the majority judgement of Justice Sitali and Justice Mulongoti, the ConCourt ruled that there was no need for the ECZ to call for fresh nominations in the two constituencies because the High Court had at the time stayed the elections.
The ConCourt stated that the ECZ did not breach the Constitution by avoiding to cancel the elections in Kabushi and Kwacha because the Commission was abiding by the High Court order of the stay.
In a minority judgement, the Constitutional Court has ruled that any elections held before the High Court could discharge the stay it granted to Mr Lusambo and Mr Malanji after the resignation of the two candidates would be illegal.
But in a minority judgement, Justice Mulenga said that the Kwacha and Kabushi by-elections set for October 21 was illegal and the nominations held on August 5, 2022 could be used to hold the said elections.
Justice Mulenga held that in line with article 52(6), it was mandatory for ECZ to cancel the elections and call for fresh nominations and hold the elections within 30 days upon date of resignation or disqualification of a candidate.
She further said that the Commission was obliged to obey the High Court orders and Court of Appeal until the order was set aside, discharged or vacated.
She castigated the behaviour of ECZ in the Kwacha and Kabushi matter stating that the Commission’s action have the potential of causing anarchy in the electoral system.
Justice Mulenga said this when she delivered her dissenting (minority) judgement in a matter in which Green Party President Peter Sinkamba and governance activist Isaac Mwanza petitioned that ECZ calls for fresh nominations and elections in Kabushi and Kwacha constituencies by October 27 and November 2, 2022, respectively.
The petitioners sought a declaration that the failure by ECZ to cancel elections which were scheduled for September 15, 2022, after the resignation of the two independent candidates Alfred Yombwe and Lawrence Kasonde was a breach of the constitution.
And that any holding of the by-elections outside the 90 days would be illegal as the Constitution has not provided for extension of the time frame by any person, State organ or State institutions
Justice Mulenga however had a different view saying there was resignation by the two candidates, thus, ECZ should have cancelled the elections.
“The respondent contravened the constitution and further that the elections set for 21st October are illegal and further that the nominations held on August 5, 2022 cannot be used to hold the elections,” she said.
She held that the petition had merit and could have granted the declarations sought.
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