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Friday, June 11, 2021

A Brief History of the Affidavit form for Presidential Candidates

Columns A Brief History of the Affidavit form for Presidential Candidates

By Isaac Mwanza

In view of the substantial amendments to the Zambian Constitution in 2016, it followed logically that the prescribed affidavit for a presidential candidate would itself be altered in order to take into account the latest amendments to the Constitution.

The 1996 Amendment had for example, a parentage clause which required a presidential candidate’s parents to have been Zambian by birth or descent. The 1996 affidavit for a presidential candidate had paragraphs reflecting the same. This affidavit was in use from 1996-2015.

The 2016 Affidavit form which came into being through Electoral Process General Regulations, Statutory instrument No. 63 of 2016 dropped some paragraphs which were in the 1996 a Affidavit but were no longer in the Constitution as amended in 2016.

The 2016 affidavit for a presidential candidate also added some new paragraphs which were not part of the 1996 affidavit and were not required by the Constitution as amended in 1996. An example is the declaration of assets and liabilities.

However, the only difference between the 1996 and 2016 affidavits that has even resulted into a Constitutional Court petition is the dropping in the latter of a paragraph which provided that:

“That I have not twice been elected as President.”

This has led some people to wrongly assume that the dropping of the above paragraph was aimed at preventing a challenge of President Lungu’s nomination to recontest the forthcoming General Election this August for his second and last term. Such an assumption only demonstrates a lack of understanding of the effect of the 2016 Amendment on the issue of twice having been elected as President.

Under the 1996 Amendment, there was no express qualification (proviso or rider) for a presidential candidate to run for a third election without violating the two-term limit clause.

Under the 2016 Amendment, it is now possible for a presidential candidate to be elected more than twice without violating the provision on twice having been elected.

It follows that the paragraph which appears in the 1996 affidavit cannot exist in that exact form in the 2016 affidavit.

It’s little wonder Mr John Sangwa SC himself alternatively prayed in his petition that the 2016 affidavit be amended in such manner as would in the judgment of the Court satisfy Article 106(3) of the Constitution.

Article 106(3) has already been held by the Constitutional Court not to be a standalone provision. It must be read together with Article 106(6). This is unlike the 1996 Amendment which had a standalone provision on twice having been elected without any express qualification as is the case under the current Zambian Constitutional order.

At this point it is important to also understand that under Article 7 of the Constitution of Zambia, Statutory Instruments, such as the one containing the Affidavit form under dispute, are part of the Laws of Zambia and can be challenged in Court. The challenge to Statutory Instrument is provided under Article 67 of the Constitution which states:

“67. (3) A person may challenge a statutory instrument, for its constitutionality, within fourteen days of the publication of the statutory instrument in the Gazette.”

The question which the Constitutional Court may be faced with is whether the petition to challenge the form, in effect the Statutory Instrument, is constitutionally time barred or not.

For avoidance of doubt, many media houses and political commentators seem to be misleading the public that the Affidavit form was secretly amended by ECZ. This is untrue and patently false. The Affidavit was used in the 2016 elections by all Presidential candidates, without any problems at all. Lelo chaipa bwanji that you are accusing the Commission of manipulating the Affidavit?

No the Electoral Commission has done no wrong or manipulation at all. The Commission has always been doing what it does since time immemorial when the law changes on elections.

22 COMMENTS

  1. You are entitled to your opinion, but let ECZ react and let the court make a decision.
    That will be more fair than you trying to convince those who have a different opinion. Yours is also full of politics, the same issue that you think the other side doing.

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  2. sorry no foolishness like with allow to Lungu and anybody to use the dead courts to promote a third term , look are you not ashamed to prend that Lusaka was only elected in 2016 , shame shame up on you all , look we fight in the ballot and all those who will promote this third term we shall deal with them at the right time .

    Shame shame up on you and all with you , you shall fail as you did with the Ministers and Bill 10 , wait and see and what is that Lungu do that he has failed in seven years and the maximum to rule zambia is ten years and not twelve ,but any minimum , wait and see

  3. The affidavit (swearing by oath) is not law and does not replace the law or the constitution. A candidate does not qualify by virtual if a well written affidavit. Some people have lied on oath. Thus the affidavit mustn’t disqualify someone, but the law should.
    Some people went round saying ECZ has dropped some words from the affidavit and yet it is the eligibility proponents, after losing their case at Concourt, who want to change the wording.

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  4. Sense and wisdom. Let those with eyes and a brain take note of these facts. do not be used by that sick in the head tribalist HH. For him he is using your tribe to hang on to your support. The real issue here is how HH can continue contesting elections after losing over 5 times. Is it because he is the only capable tonga? Are you in upnd scared to challenge that dictator ? I know of some upnd members who are saying they are now just waiting for hh to die.

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  5. This is a matter of National Interest so why should ECZ hide behind a Time Technicality? Why not argue the Merits of the Case? The omission of “I have not been elected twice as President” seem to be deliberate and is serving a purpose. If it’s not so why not include it in the Affidavit Form? What will ECZ and AG loose by inserting “I have not been elected twice as President “. Who is ECZ and AG protecting by ommitting this declaration. In the interest of Public Interest and Justice that limitation imposed thru Article 106 (3) should be inserted in the Affidavit Form without fail.

  6. The corrupt fraud convict thieving moron lawyer and gang of theives are dropping clauses from the affidavit to hang on to their stolen loot………..

    If you are confident lungu has not held office twice , let him sign an affidavit that says so ……

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  7. Why does the Affidavit Form omit Article 106 (3) in particular while covering the other Eligibility Clauses? ECZ shouldn’t be allowed to hide behind Time Technicality. Concourt should hear the Merits of the Case in the interest of Electoral Justice. What prejudice will ECZ and AG suffer if “That I have not been elected twice as President” is added to the Affidavit Form? ECZ and the AG’s resistance to the Amendment of the Affidavit Form seem to suggest that the Omission is fraudulent. ECZ should amend the Affidavit Form accordingly if they have no other motive.

  8. This 2021 erections will be the most peaceful in Zambian history. Even the KK unopossed elections were brutal.
    Thumbs up to HH, the guy has matured.
    GBM, Kakoma, Kambwili, Nawakwi all have tried to sell HH for peace of kwacha, but Edgar is not interested.
    Thumbs up to HH and ECL.
    I have a feel that HH will be taking ECL on presidential trips.

  9. This too childish, lets go to treasonous cases. And why PF has turned Kuombo into a crime scene.

  10. THE TR0LL IS BRAIN DEAD AND HIS LAST UTTERANCES ARE JUST MUSCLE SPASMS FROM HIS MOUTH
    PLS IGNORE FOR HE KNOWS NOT WHAT HE IS DOING

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  11. Poorly written article, lacks concise points and objectives . The term matters because affects one of the candidates. The Constitutional Court in Zambia has harmed the law. The law is never meant to be misunderstand or needing lengthy dissertations to understand.
    Look at how every American knows what the first amendment is.,,,In Zambia there is still confusion about Public Order Act… Electoral Law. Everywhere you look there is confusion! God bless Zambis!

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  12. flag Corruption scandals: 48 Houses Social Security Cash Luxury Presidential Jet Ambulances Fire Trucks Mukula Trees Ndola-Lusaka Rd Malawi Maizegate Fuelgate Swaziland landgate Zesco Loans

    Trying hard to justify the obvious.

    It’s simple by your arguments: if it was removed to align with the new Constitution, what clause was it replaced with?

    You say the partisan stooges at Kangaroo ConCourt have already ruled on Article 106, when did they do this? The court said they couldn’t rule on Lungu’s eligibility because he had not filed his nomination at the time.

    I say malabishi!

  13. In one of his books, “In the castle of my skin” Caribbean author, George Lamming had one of his characters describe lawyers’ as liars. Some times I see this as being true. Always doing gymnastics with language… quite sickening!

  14. Concourt in 2016 illegally and unconstitutionally dismissed the Presidential Petition without Hearing and determining it. Let’s hope Concourt will not dismiss this Affidavit Form Petition based on a Time Technicality again. If Concourt does that then they will have confirmed that Zambia Concourt is 100% State Captured. The writing is on the wall.

  15. Akwasu a mwanza, Inga gati .. The minister who signed the said statutory instrument was illegally in office as determined by the Concourt. I s that law not void kansi?

  16. The Grade 12 certificate requirement has brought significant and positive change for adoption as parliamentary candidate but then who changed the requirements to qualify as ConCourt judge since all that currently sit on the bench none met the advertised requirements?

  17. Why is the AG and ECZ resisting inserting this Clause in the Affidavit Form? Using Time Technicality doesn’t serve Justice. Concourt should hear and determine this Petition on its own Merit instead of using technicalities to defeat Justice. Can Zambia Concourt ever make an impartial decision or it only serves the interest of the Appointing Authority and itself?

  18. The objective of the article was to convince those who hate reading and lack understanding. The author has not clarified anything but instead has ended up admitting what the majority were suspecting anyway. Anyway, it is worth trying to convince the masses otherwise. There is a huge contraction when comparing with the previous case. By the way is it even in order for the author to bring this issue for debate when it is already before the courts?

  19. Isaac Mwanza to hell with your story telling. What “The Zambia we want” is for Concourt to hear the Merits of the Petition. We don’t want Concourt to dismiss this Petition as it erroneously did with the 2016 Presidential Petition. We want Justice and not abuse of Time Technicalities. We see no reason why 106(3) is excluded from the Affidavit Form while other Eligibility Clauses are included. The AG,SG and ECZ are colluding to protect ECL. Period.

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