Wednesday, April 17, 2024

A Court Has No Power to Disqualify A Presidential Candidate who has Been Declared by ECZ as Duly Nominated

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By Peter Sinkamba

One of the mind-boggling constitutional question that was raised by some ‘Table 9 scholars’ at some famous waterloo in Kitwe is whether a court has power to disqualify a presidential candidate or vice presidential candidate after having being declared duly nominated by the Returning Officer in accordance with Article 52 of the Constitution of Zambia Amendment 2016.

This question was raised by “Table 9 scholars” consideting that Article 52(6) of the said Constitution Amendment provides as follows:

“Where a candidate dies, resigns or becomes disqualified in accordance with Article 70, 100 or 153 or a court disqualifies a candidate for corruption or malpractice, after the close of nominations and before the election date, the Electoral Commission shall cancel the election and require the filing of fresh nominations by eligible candidates and elections shall be held within thirty days of the filing of the fresh nominations.”

A careful perusal of Article 52(6) above literally shows that after close of nominations, the power of the court to disqualify a candidate is limited to cases of corruption or malpractice by the candidate, and nothing else.

Article 70 applies to Members of Parliament. By virtue of Article 110(2), the implication is that Article 100 applies to both the presidential candidate and vice presidential candidate. Article 153 concerns councillors, mayors and council chair persons.

In view of the foregoing, according to Article 100(2), a person is disqualified from being nominated as a president or vice president if that person:

a) is a public officer
b) has dual citizenship
c) is holding or acting in a Constitutional office or other public office
d) is a judge or judicial officer
e)was removed from public office on grounds of gross misconduct in the immediate preceding five years
f) has a mental or physical disability that would make the person incapable of performing the executive functions
g) is an Undischarged bankrupt
h) has, in the immediate preceding five years served a term of imprisonment of at least three years.

A careful perusal of Articles 100(2)(a)-(h) and 52(6) above clearly shows that the said provisions literally do not grant power to a court to disqualify a presidential or vice presidential candidate who has been declared duly nominated in accordance with Article 52.

Although Article 52(4) provides that a person may challenge a nomination in a court or tribunal, that power granted to the court by the Constitution is only limited to HEARING the petition. Literally speaking, Article 52(4) does not grant power to the court or tribunal to DETERMINE a petition after hearing it, as can be clearly noted from Article 52(4) which provides as follow:

” A person may challenge, before a court or tribunal, as prescribed, the nomination of a candidate within seven days of the close of nomination and the court shall HEAR the case within twenty one days of its lodgment.”

There is no determination that has been provided by the Constitution in the above cited Article. Literally speaking, there is a big difference between hearing a matter, and determining a matter. Just like literally, there is a difference between “twice held office” and “term of office”.

After an elaborate discussion, Table 9 scholars concluded that if courts or tribunals delegated to hear nomination petitions decide to use literal interpretation of the Constitution, then it will be discovered that those courts or tribunals have no power to disqualify a presidential or vice presidential candidate who has been declared as duly nominated by the Returning Officer, in this case, the Chair Person of ECZ, unless the complaint or petition SPECIFICALLY relates to CORRUPTION or MALPRACTICE by the candidate.

35 COMMENTS

  1. If that was the case, then there was no need even to hear a matter. The purpose of any hearing is to come up with a judgment and that judgment can be a disqualification. Very soon PF cadres will start singing the same song. ECZ can miss it, so what happens?
    Marijuana tefintu

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  2. What if ECZ are found to have been bribed to Declare a candidate as Duly Nominated when infact not ?

    As cases where the nomination process is marred in controversy , corruption, intimidation and violence ???

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  3. U can forgive ba Sinkamba as he has already smoked the weed. His judgment is already impaired by the drug. Thank God he is not one of the Concourt Judges. The Petition Hearings have been set for 8 and 9 June, 2021. Whichever way u look at it it’s good that these Article 52 Petitions will be heard. The judgment will be ceisimic and will affect our Constitutional Democracy for a long time to come. We have seen the Second Respondent’s Opposing Affidavit. Where is the First Respondent’s submission which was supposed to be made by May 31,2021? I can’t wait to read the First Respondent’s Submission disputing that he hasn’t held Office twice ,elected and sworn in twice and is eligible for Election for a Third time. Here comes wamuyaya Presidency. God save us from tyranny. The writing…

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  4. Sinkamba must just step back. There is nothing sinister about citizens approaching the court. Whether it is wrong or right is up to the court to decide once such has been brought before it. It is like everyone wants someone to conform. Epo mpelele nebo.

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  5. Courts have very wide powers ba ganja boy. They have been known to even set aside an election that has been declared by an electoral commission. What meeting requirements before an election? Just say the whole process has already been manipulated by the same person being petitioned, it’s obvious. Not dullo excuses.

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  6. This defies logic. Anyway what logic can one expect from someone who is already on Cloud 9 having inhaled some dangerous substance. If ECZ made a Constitutional Error we see nothing wrong with Concourt correcting that error. The Role of a Concourt is to interpret,obey, defend, protect and enforce the Republican Constitution. Concourt Judges have taken an oath to God and People of Zambia whom they are supposed to save impartially.If Concourt plays games the Concourt of Public Opinion is waiting to deliver its Seisimic Judgment on August 12. The writing is on the wall.

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  7. This ***** has missed the point……..It is a third term issue mother-quack not what you are yapping.
    This chamba man is the chief drug carrier for the PF cartel……Sinkamba is the one who does dirty works for ECL.Jobs like smuggling chamba and other narcotic drugs………..just keep an eye on this *****.
    Third term issue is what will be case for your corrupt coronavirus diseased quack.

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  8. The ‘Table 9 scholars’ failed to consider the term ‘certiorari’ which is in the petition. I would advise them to dust their Law 101 notebooks and read again. Secondly, every court process is a hearing and every hearing ends in a determination. This is the same thing as saying that one can eat but not go to the toilet. By virtue of eating food the toilet (judgement) is the end of the process of eating (hearing) the food.

  9. Certiorari means ‘to look again.’ The ECZ acts according to the law and it is a suable and suing institution. The law is interpreted by the courts and where the courts find that the ECZ has acted against the law, the court can order the ECZ to repent and do according to the law. It is at that point that the ECZ will disqualify a candidate because the candidate committed fraud by submitting false information. This time round the Esau Chulu led ECZ was determined to have a tribemate on the ballot. Therefore they did not want him to swear that he had ‘not twice held office.’ This is why we are where we are. Law in Zambia is in a shambles. There is blood everywhere.

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  10. Peter keep sucking you will get your Weed licence …how low can you go. This man will be the next Tayali

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  11. Table 9 scholars must be quacks always high on something…that kind of thinking you can not resolve anything!

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  12. Peter Sinkamba is a moral and intellectual wreck. Is he saying that the ECZ is incapable of making a mistake? Why are they open to being taken to court?

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  13. The fact that the same Law provides for the challenging of the nomination then it also grants the Courts power to nullify such nomination. It’s very important that we all collectively make statements that build the nation, in whose interest is such w warped analysis of the Law? And this is where the problem is. The entire PF and their affiliates have chosen to interpret the 1996 Constitution using only 1 provision of the 2016 Constitution because of their narrow interest of granting ECL an illegal 3rd Term. Why have they shied away from other equally important provisions. If ECL didn’t rule for a term then he didn’t equally win that election because he didn’t attain the required threshold. We can’t hold the whole country because of an individual. Please think!!!

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  14. Hmmmmmm ilyashi lyakosa! Sinkamba is right. The standard that the courts use to interpret the Constitution is cardinal.

    If the courts chose to use literal interpretation standard, then the courts’ powers concerning nomination disqualifications is restricted to corruption and malpractice issues only. Extending the power beyond the two issues e.g. twice holding office, would be a contravention of Articles 5(2) and 119(1).

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  15. If a court is able to nullify an election whose alleged winner was declared by an electoral body why can’t the same court nullify a nomination cleared by that electoral body? A presidential candidate can be disqualified, that’s why the ECZ said they would only start printing ballot papers after all the petitions have been disposed off by the courts. Court yalikwata amaka bane

  16. Courts are vested with almost unlimited powers. Yes, this includes adjudicating on any matters brought before them including those involving ECZ. So Mr Sinkamba’s arguement is flawed on This one

    • Always poor judgement this man, he even paid money for ministers who knowingly illegally stayed in office

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  17. Coming from a very conflicted individual going by some recent events of him paying for ministers who knowingly illegally stayed in office

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  18. It is the ECZ that has been sued. So the court can order the ECZ to follow the law which the ECZ may have misinterpreted. That is what certiorari is all about. The petitioners are asking the court to ‘look again.’

  19. Don’t follow Peter Sinkamba, his reasoning is flawed. If the Court has no power then who has? The ECZ isn’t a Law enforcement or interpretation institution. That’s why election disputes are referred to Courts for adjudication. If we follow Sinkamba’s line of thought then we won’t have a country. Don’t try to look clever when the net effect of your statement is disaster. It’s better to keep quiet and enjoy the benefits of supporting ECL when you see that you’re slowly losing your relevance in the eyes of the public.

  20. 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 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

    Unbelievable! This is what happens when principles and integrity are sacrificed and traded for a dime. At one time I thought this guy actually is intelligent and has some kind of integrity, boy was I wrong. He is just like many of them. This country has been held hostage by c0rrupt charlatans. Ok according to this guy:
    1) The ECZ is above the Law;
    2) The courts can’t interpret the Law and correct the illegality of the ECZ;
    3) The word the courts shall “hear” simply means, ‘just come we will listen and after listening we will send you back home’… surely what’s the point of even going to court then?
    4) What is “Malpractice” anyway according to this numsknll? Isn’t fraudulently declaring that you legally qualify when you do not even qualify…

  21. Well academically written with lots of supports, the judiciary’s role is constitutional review and interpretation of it. They certainly have power, but Sangwa should have sought clarification before nominations.

  22. Sinkamba is right. Complaints to do nominations concerning Articles 52, 70, 100, and 153, besides corruption and malpractice are admistrative and allocated by the Constitution to the ECZ. If one has a complaint, the starting point to submit one’s complaint is ECZ. If ECZ refuses to attend to the complaint, then one may tske the complaing for judicial review. Judicial reviews are not automatic. They are discretional reliefs.

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  23. Very conflicted individual who has completely lost focus with no single party member. Came up very promising in the past, alas heavily compromised

  24. 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 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

    ….4) What is “Malpractice” anyway according to this numsknll? Isn’t fraudulently declaring that you legally qualify when you do not even qualify as some form of ‘malpractice’ or corruption?
    Does he even know a court can interpret the law… let him see and read what a real ConCourt does in the US, the SCOTUS what ‘interpreting’ the law means.
    If this is the kind of potential leaders we have in Zambia, this country is doomed forever.

  25. Sinkamba is not the first one to hint on Chapter 52 vs 6 of our Zambia Bible.
    Forget about his interpretation. Just read and understand implications and benefits.
    My take is that we won’t even reach that far because for a fact, Lungu will be on the ballot paper. All these distractions will fade.

  26. In a Country where there is respect of Rule of Law a fraudulent declaration by a Nominated Candidate would lead to prosecution of the cheating Candidate and disciplining of the dECZ Returning Officer. A false declaration made by ECL to the effect that he he didn’t hold Office twice and was not elected and sworn in twice would be punishable at law. If a Candidate was found to have cheated he would be disqualified and the ECZ Returning Officer would be disciplined if it was found that he aided and abated the cheating Candidate. However In Banana Republics such Corruption would go unpunished. Where the an Incumbent President seeking re-election connives with the ECZ Returning Officer the crime would be covered up.These are the risks of a corrupt ECZ and Concourt. Once Electoral…

  27. Peter Sinkamba is conman. A bully masquerading as a politician who lives on pittance thrown by the likes of ruling party, mining company for whom he acts as a pimp.The moment HH or Kalaba or M’membe or even a slimy worm becomes president he will be the first one to Sing songs in praise of HH, Kalaba, M’membe and the anointed worm.

  28. The moment Peter Sinkamba went to pay money owed by Kampyongo for illegally staying in office, I knew that he had lost his brain

  29. It is not the court to disqualify a Presidential Candidate Mr Sinkamba, it is the constitution that disqualifies a Presidential Candidate.

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