ABOUT ARGUMENTS THAT ARTICLE 72(2)(h) REFERS TO A NOMINATION PETITION AND NOT A PETITION AGAINST AN ELECTED MEMBER OF PARLIAMENT

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By Sean Tembo – PeP President

1. There is an ongoing argument that the barring of a candidate from re-contesting their seat which is outlined in article 72 (2)(h) of the Constitution refers to a decision of the ConCourt on a nomination petition and not a petition against an elected Member of Parliament. A nomination petition is whereby a candidate who has successfully filed in their nomination is petitioned before the Constitutional Court within 7 days of the filing of the nomination in question. On the other hand, a petition against an elected Member of Parliament is just that; a petition to remove a serving Member of Parliament and to declare the seat vacant so as to cause a by-election.
2. Article 72(2)(h) cannot refer to a nomination petition because a nomination petition CANNOT bring about a vacancy in the office of a Member of Parliament. For there to be a nomination petition, it means that a vacancy already exists. And article 72 (2) clearly lists the possible ways in which a vacancy in the office of a Member of Parliament can be CREATED.
3. Clearly, 72(2)(h) is referring to a decision of the Constitutional Court to remove an MP from office, thereby creating a vacancy. For a decision of the Constitutional Court to fit into article 72(2)(h), a vacancy must be CREATED in the office of a Member of Parliament. If a decision of the Constitutional Court does not result in a vacancy being CREATED, then it would not meet the requirements of article 72 (2)h).
4. That is exactly what happened in the case of Hon. Lusambo and Hon. Malanji; the Constitutional Court removed the two MPs from office thereby CREATING a vacancy. Therefore, the cases of the two MPs fit perfectly to article 72 (2)(h). It is important to note here that it is not the Constitutional Court which disqualified Hon. Malanji and Hon. Lusambo from re-contesting their seats, rather it is the Constitution. Specifically, it is article 72 (2)(h) of the Constitution. In other words, the Constitutional Court does not need to disqualify any candidate. However, once the Court has nullified the seat of an MP, article 72 (2)(h) then immediately kicks in and disqualifies the candidate from re-contesting their seat.
5. That as it may, it is worth mentioning that the Electoral Commission of Zambia (ECZ) has acted in a mischievous manner by failing to state it’s position on Malanji and Lusambo earlier, and waiting for the last minute thereby preventing the two candidates from having the opportunity to challenge this decision in a Court of law. Evidently, ECZ is not acting as an impartial and independent adjudicator of elections here, but rather is acting under the hidden hand and influence of the Executive. Ambushing candidates should not be part and parcel of the ECZ mandate.