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Thursday, June 30, 2022

Go to Court now over election clauses or face hurdles after nominations says Mwanza

Headlines Go to Court now over election clauses or face hurdles after nominations...

Interpretation of Article 106 as to whether President Edgar Lungu served two terms or has held office of Republican President twice cannot be moved by a nomination petition, Governance Activist Isaac Mwanza has charged.

In an interview on Thursday, Mr Mwanza said the mode of commencement of court processes determine whether a court can proceed to determine a matter or not.

Mr Mwanza said during nomination of presidential candidates in May, ECZ will only be interested in the answer to a question on whether a Presidential candidate is or is not disqualified by provisions of Article 100 of the Constitution and interpretation of Article 106 is outside their checklist and mandate.

“The correct mode therefore to seek an interpretation of any provision of the Constitution, including Article 106 on term of office, holding office or any other matter is the one which was pursued by Dan Pule and others, through a petition,” said Mwanza.

Mr. Mwanza said those who may want the Constitutional Court to interpret, yet again, what it means to hold office twice cannot move the court through a petition but only through originating summons.

“Much as they will be seeking the declaration of the court on the eligibility of a presidential candidate, a nomination or election petition is not the best mode to seek Interpretation of any provision of the Constitution,” he said.

Mr Mwanza has since advised entities who want the Court to interpret provisions of Article 106 to do it now through commencing an action using Originating Summons than wait to commence the same through a petition, which is a wrong method.

“It would not be surprising if the Court dismissed the nomination petition that seeks to interpret provisions in Article 106 under the guise of being a petition to challenge the qualification of a presidential candidate,” he said.

There are indications some civil society Organisations and opposition parties will want to seek an interpretation on the meaning of the phrase, “twice held office” in the Constitution using a petition.

Recently, Mr Mwanza won a constitutional Court against councilors who resign but later retract their notice of resignation. The matter was taken to court through originating summons to interpret the Constitution and not through the petition.

49 COMMENTS

  1. Isaac Mwanza is not a Constitutional Lawyer but just a Governance Activist. Why is Mwanza inciting others to check with Concourt what “elected and sworn in twice ” mean? Why doesn’t Isaac Mwanza petition Concourt on this? What is the AG’s Legal Opinion on this? We don’t see why this cannot be challenged after ECL is Nominated? Isaac Mwanza is on fishing Expedition to have ECL’s Third Term Eligibility petitioned b4 Nomination Day. Once ECL is Nominated then his Eligibility can be challenged in Court. Isaac Mwanza is not a Concourt Spokesman so why is he speaking for the Court? Let Concourt deal with this issue after ECL is Nominated.
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  2. No need for anyone to take this matter to court .Whats the issue?
    The Electoral Commission of Zambia(ECZ) will follow the constitution not accept nominations from individuals who have held office or have been sworn in twice.
    When the ECZ completely disregard the provisions of the constitution and accept nomination papers from unqualified individuals , then we can go to court.

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  3. Is Isaac Mwanza the New Spokesman of Concourt? Why is Mwanza interpreting the Constitution for Concourt? Mwanza is inciting People to petition ECL’s Third Term Eligibility b4 Nomination why? The Zambia Constitution Article 52 is very clear. Anybody Nominated as a Presidential Candidate can be challenged in Court with no limitations. Why is Isaac Mwanza trying to limit Petitioners without a mandate from Concourt?

  4. For some time I held the view that the Constitutional Court did not address the case of the incumbent President’s eligibility. Indeed it did not, but the body of the 84 page judgement has very obvious directions in which the court will go when the President files his nomination and a petition is raised against it. The gist of the argument is whether to take the literalist interpretation or the purposive interpretation. Zambian courts prefer the later. The case of AG & MMD v Mbikusita Lewanika et al was cited by the Con court to affirm this approach. The court may not have pronounced itself on Lungu’s eligibility, but it laid the groundwork to rule in his favour whenever the matter is no longer otiose. I see Lungu on the ballot in August. Right now, the opposition must direct their…

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  5. Those upnd goats will wait until they lose elections before using this excuse to cry for petition. They are very dull. Even when they had bill 10 which offered them advantage, they decided to go against it merely because it was a bill commenced by pf. Tribalism is really a shame. Suffering due to some absurd inclination based on tribe. Ignorance.

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  6. wina azalila. after drawing up the petition for the last 2 years, then you are told ati its wrongly before the court. kkkkk

  7. The law of the land will be applied and also using other subsidiary legislation.Law is not interpreted by jst reading one setence.So iwe isaac mwanza tekanya.#2021NAchange

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  8. Independent Blogger has put it very well.Petitions can only be made after Nominations have been made and closed.U can only petition if there is a perceived wrongful Nomination made in terms of the Constitution. Isaac Mwanza is inciting somebody to make a Petition to Concourt on whether or not a person “who has been elected and sworn in twice ” can qualify to stand during the 2021 Elections?There is no need to make that Petition now. Those who want to petition should wait to file their Petitions soon after Nominations are closed in May 2021.

  9. i agree with Isaac. Our constitution has challenges. The only parts which can be petitioned via a petition is Article 100. So going with a petition against 106 is futile exercise

  10. Right now, the opposition must direct their…
    energies to beating the PF. Forget about his eligibility. Go and ask the voters: Are you better off now than in 2016?

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  11. @Kaizar Zulu why can’t you have an intelligent conversation that doesn’t border on tribal sentiment, don’t tell us that it’s as a result of your limited vocabulary.

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  12. PF COPPERBELT MOBILSATION COMMITTEE MEMBER JOHN KANGWA RESIGNS TO JOIN THE UPND, 11th February 2021
    FELLOW COUNTRY MEN AND WOMEN, TODAY, I TENDER MY RESIGNATION AS MEMBER OF THE PATRIOTIC FRONT- PF COPPERBELT MOBILISATION COMMITTEE AS I LEAVE TO JOIN THE PROGRESSIVE UNITED PARTY FOR NATIONAL DEVELOPMENT.
    MY DECISION TO LEAVE THE PF HAS BEEN AN EASY ONE DUE TO THE RECKLESS LEADERSHIP MARRED WITH UNPRECEDENTED CORRUPTION, RISING UNEMPLOYEMENT & POVERTY, COST OF LIVING, SUSTAINED DEPRECIATION OF THE KWACHA, THE BREAKDOWN IN THE RULE OF LAW, AND THE GENERAL LACK OF ECONOMIC DIRECTION OUR COUNTRY FACES. THE POVERTY LEVELS PARTICULARLY HERE ON THE COPPERBELT HAVE CONTINUED TO RISE FOR OUR PEOPLE WHILE THOSE WHO HOLD POLITICAL POSITIONS AND THEIR ASSOCIATES BECOME RICHER AT THE EXPENSE OF TAX…

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  13. Don’t even contest lungu`s eligibility status because as it stands now he will be the easiest candidate to beat. If the PF put up another candidate then it might become difficult to unseat them.

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  14. Why go to Court now b4 the Nominations are made and closed? So Mwanza will go to Concourt now and get A Concourt verdict b4 Nominations are made?. Judging by past conduct Concourt will Rule in favour of a Third Term for ECL. That wouldn’t surprise anybody given that that Court is State Captured. Concourt was directed by ECL not to misbehave like the Kenyan Supreme Court. So State Captured Concourt’s verdict on ECL’s Eligibility is predictable.

  15. I suspect the threatened petition is not being muted because there is a belief that this Concourt can actually rule that Lungu is ineligible – no matter what the constitution says. Rather, it may be a political play to keep the PF a little unbalanced and to create a case where a good portion of the electorate will feel an injustice has been done when the case is thrown out by Concourt – thereby having added motivation to get up and vote on voting day. Kind of like how Trump’s antics motivated a number of usually apathetic voters to get up and vote against him. It would seem to be working, seeing the PF surrogate Mwanza panicking to try and cover bases. Or am I crediting the opposition with a level of political strategisation they are incapable of and they really are daft enough to…

  16. Or am I crediting the opposition with a level of political strategisation they are incapable of and they really are daft enough to believe Concourt would rule against Lungu on this??

  17. What grade is this kaizar zulu,he is oppossesed with tribal remarks on HH and the UPND. He is such a tribalistic fool whose preoccupation is based on HH nowonder he is so urgly l normally ask myself is this guy is zambian because he looks like a nyamulenge…..

  18. Kalya and mavhuto what is tribal in my comment? Is it tribal to say a person will crry in Tonga? Is he not tonga? Does he not speak tonga? If you are looking for tribalism then look closer to home because you will find that it is your upnd party who said only a Tonga can rule upnd. And true to that, upnd has only had tonga leaders. Now who is tribal between us?

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  19. Kalya the important thing is that my wlfe thinks am handsome. Why would I care what a f00lish man like you is saying? I am not gay to care. Some of you your wives hit on us when they visit Zambia.

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  20. Very interesting indeed and intelligent observation by isaac mwanza ,he is almost hundred percent correct on this one
    we have people who do not understand the ruling of the eligibility by our concourt
    people like mac donald chipenzi. bishop mpundu. kazabu and many including lawyers like kbf, are all flat
    they have a narrow conception of that ruling they depend on literal interpretation that says held twice office and ignores the defination of a term of office
    sad indeed lets wait and see what they are going to do

  21. Isaac Mwanza is on a fishing Expedition. He wants somebody to petition Concourt to find out whether a President having been “elected and sworn in twice” can be elected and sworn in 4 the Third Time in terms of the current Constitution? Perhaps Isaac Mwanza should petition Concourt if he so wishes. After Nominations are closed in May 2021 any Citizen can Petition ECL’s Nomination in Concourt.

  22. Forget the arguments and faith in the ConCourt to meet the understanding of the public court! The parties intending to participate in the general elections should organize their campaign teams to double their efforts in wooing voters explaining what they would do differently to better the failures of the incumbent government. The Lungu eligibility may end up as a big distraction and political court matters are always decided more by the heart than what the text dictates! I am not one who likes legal language for its like lawyers deliberately leave loopholes to make them seem smart as they argue cases! Especially employing lots of semantics for the same different interpretation! As an exercise to test the Zambian Constitution let the matter of eligibility be simultaneously handled as…

  23. Mwanza’s comment suggest that Zambia Concourt could Rule that ECL is ineligible to stand 4 a Third Term after Nominations are closed. That would throw PF in a disarray and without a Presidential Candidate in the 2021 Elections. Hence Mwanza is provoking Concourt to issue a Verdict b4 ECL is officially Nominated by ECZ as a PF Presidential Candidate. That approach is unprocedural and unconstitutional. Concourt will only consider the matter if the Nomination is petitioned. Mwanza should seek a Legal Opinion from the Attorney General on ECL’s Eligibility if he so wishes. Yes the AG will advise ECL that having been elected and sworn in twice in 2015 and 2016 he doesn’t qualify to stand for the third time. Tough times ahead 4 ECL and PF!

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  24. The ConCourt categorically said that the Presidential term of office that ran from 25 January 2015 to 13 September 2016 and straddled two constitutional regimes cannot be considered as a full term. Then where is the confusion?

  25. There is no need to seek any clarification. It is established beyond doubts that President Edgar Lungu is in his first full term in office. Anyone who has doubt can refer to the Article 106, it will clear the things beyond any apprehension.

  26. Why are you wrecking the issue, already settled by the Constitutional Court? Why do you want to waste Court’s time and national resources?

  27. In my opinion, Mr Mwanza is clearly in contempt of court. He is openly inciting people to defy the order! This will lead to chaos and anarchy.

  28. This is nothing but hypocrisy of highest order. When the same court gives verdict against the PF that suits the opposition. But people like Mr Mwanza are not ready to accept the judgement that is in favour of PF and President Lungu! Stop cheating people.

  29. This is why I don’t trust the so called social activists. They only want to create confusions, chaos and anarchy in the country and get hefty payment from foreign funders. It is high time that we stopped taking these people seriously.

  30. You seem to be a literate person, Mr Mwanza. I would appeal you to read the Constitutional Court judgement on the petition questioning term in office of President Edgar Lungu. It has made amply clear that he has not served two terms. Now, go and find something else to mislead the people.

  31. It seems that you don’t have faith in the judiciary and even the Constitutional Court. By this logic of yours, the judgement about illegal occupation of office by some ministers and order to repay the salary should also be not accepted. Why are you so selective in accepting court judgements?

  32. Yes, HH azaluza again. The nation has decided already. No need to do anything by hook or by crook. It will happen naturally.

  33. I have no word in that I don’t believe in the useless constitution of Zambia which layers always twist to their advantage for making money through arguments. Give me the power and I will produce a constitution which even a kindergarten child will understand. All the closes will closed ended.

  34. It will be interesting when ECL goes before the concourt in August as a lame duck President then he will realise how vulnerable he before the judges then will he know that you can no longer threaten them any more because they now hold the power they didnt seem to have in 2017

  35. It will be interesting when ECL goes before the concourt in August as a lame duck President then he will realise how vulnerable he before the judges then will he know that you can no longer threaten them any more because they now hold the power they didnt seem to have in 2017 that will be interesting

  36. If say the concourt rules that he is eligible then it will be he will rule for 11 years in office of the President.Which is an constitutional
    2015 to 2016sept. 2016 to 2021 =5yrs 2021 to 2026 =5yrs Total 11yrs. Or are we says Zambia have defective consititution in place.

  37. ISAAC MWANZA AND ANDREW NTEWEWEWE, PLEASE NOTE THAT A CONSTITUTION CANNOT BE USED OR APPLIED HISTORICALLY. LUNGU WAS ELECTED IN 2015 BASED ON THE 1991 CONSTITUTION WHICH COUNTED AS A TERM ANY PERIOD (YEARS, MONTHS, DAYS OR WEEKS) SERVED BY ANY ONE WHO TAKES OVER FROM THE INCUMBENT PRESIDENT WHO FAILS TO FINISH HIS TERM FOR SOME REASON. THEREFORE BY TAKING OVER FROM SATA IN 2015 UNTIL 2016 GENERAL ELECTIONS, LUNGU SERVED A TERM. ON LUNGU, ARTICLE 106 OF 2016 CONSTITUTION CANNOT BE INTERPRETED IN ISOLATION BUT TOGETHER WITH THE 1991 CONSTITUTION WHICH LUNGU USED TO ASCEND TO POWER IN 2015. BE SINCERE.

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