ActionAid Zambia notes with concern the refusal by the Electoral Commission of Zambia to accept the nomination of Bowman Lusambo and Joseph Malanji for the Kabushi and Kwacha Constituency Parliamentary by elections. we have also noted the statement dated 24th August 2022 by the Electoral Commission of Zambia to indicate that they would not be accepting nominations from candidates that caused a by-election because of nullification of their seats as per Article 72 (4) of the Constitution of Zambia amendment Act No. 2 of 2016.
As an organization that champions strict adherence to the Rule of Law, we hold the view that the statement and the subsequent decision by the Electoral Commission of Zambia causes an injury upon the doctrine of separation of powers which clearly gives privileges and powers and responsibilities to arms of government in accordance with the relevant sections of the law. The responsibility to interpret the Law lies in the jurisdiction of the court and as such, the decision to disqualify a candidate from running for office on basis of an article that requires interpretation by the court is solely vested in the court in line with Article 72 (2) (h) of the Constitution. The case of Law association of Zambia v The Attorney General 2021/CCZ/0051 indicates that nullification of a seat is not the same as disqualification, and as such, without express disqualification by the Court, ECZ cannot make the decision to disqualify a candidate. We have further noted that the case of BOWMAN LUSAMBO V BERNARD KANENGO AND ELECTORAL COMMISSION OF ZAMBIA [2022] ZMCC 13 and Malanji v Mulenga and Anor [2022] ZMCC 14 only nullify the seats and do not disqualify the candidates in question.
The Constitution in its current state is a disastrous and contentious document that has continued to put Zambia on a path of economic and political instability and causing a breakdown in the magnanimous practice of politics. If we are to shift from this endless path of disaster, we would have to come up with document that is both coherent and future serving. The path of amendments to the constitution have not yielded any results and as such, we need an overhaul of the entire document, and come up with a new constitution that will adequately address the contentious issues observed in the past decades. We call upon the Ministry of Justice to expeditiously guide the process of constitutional making and change consultations to aid in avoiding inconsistencies such as the one we are dealing with now.
Issued by
Nalucha Nganga Ziba
ActionAid Country Director
