By Sean Tembo – PeP President
1. Today, the 25th of August 2022 is the date for filing in of nominations for the Kabushi and Kwacha parliamentary by-elections. These by-elections were brought about by the decision of the High Court to nullify the election of Hon. Lusambo and Hon. Malanji as Members of Parliament respectively. These two decisions of the High Court were subsequently upheld by the Constitutional Court upon appeal.
2. Late this afternoon, the Electoral Commission of Zambia (ECZ) released a bombshell. They announced that both Hon. Lusambo and Hon. Malanji will not be allowed to file in their nominations tomorrow. According to ECZ, their position is informed by article 72(4) of the Republican Constitution. About an hour after the ECZ had published their letter on their Facebook page, the Law Association of Zambia (LAZ) President issued a statement to the effect that both Hon. Lusambo and Hon. Malanji are eligible to file in their nominations tomorrow because the Constitutional Court did not disqualify them, but merely nullified their election as MPs for Kabushi and Kwacha respectively. The question is; which is which? Is ECZ right or is LAZ right?
3. In coming up with their position on this matter, ECZ quoted article 72(4) of the Constitution. So perhaps it would be a good idea to check what this article provides. Article 72(4) states: a person who causes a vacancy in the National Assembly due to reasons specified under clause 72(2)(a), (b), (c), (d), (g) and (h) shall not, during the term of that Parliament;
(a) be eligible to contest an election; or
(b) hold public office.
However, in order to give meaning to article 72 (4) of the Constitution, it is necessary to understand what article 72 (2) provides since it is refered to above. In this regard, article 72 (2) states; the office of Member of Parliament becomes vacant if the Member;
(a) resigns by notice in writing to the Speaker;
(b) becomes disqualified for election in accordance with article 70;
(c) acts contrary to a prescribed code of conduct;
(d) resigns from the political party which sponsored the member to the National Assembly;
(e) is expelled from the political party which sponsored him to the National Assembly;
(f) ceases to be a citizen;
(g) having been elected to the National Assembly as an independent candidate, joins a political party;
(h) is disqualified as a result of a decision of the Constitutional Court; or
(i) dies.
4. On the other hand, LAZ arrived at its position that Hon. Lusambo and Hon. Malanji are eligible to contest the by-election on the basis that the Constitutional Court only nullified the elections in question but did not disqualify the two MPs from re-contesting their seats. LAZ further argued that in cases where the Constitutional Court only nullifies an election but does not disqualify the incumbent from re-contesting, then the incumbent is free to re-contest. So which is which here?
5. In order to arrive at the correct legal position regarding the matter at hand, it is necessary to go back to article 72(2). Here, let us start by outlining the points which are not in contention. It is common cause that both the Kabushi and Kwacha seats have become vacant, not so? I mean, if the two seats had not become vacant, then we wouldn’t be talking about by-elections, would we? So l guess we are agreeable that the two seats are vacant. Since the two seats are vacant, the next natural but important question is how did they become vacant? The same article 72 (2) is instructive on how a parliamentary seat could become vacant. As a matter of fact, article 72(2) only provides nine ways in which a parliamentary seat can become vacant. These are listed from articles 72(2)(a) to article 72(2)(i).
6. From here, we can go through each of the possible nine ways in which a parliamentary seat can become vacant, and ask ourselves if indeed that is how the Kabushi and Kwacha seats became vacant? Let us start with 72(2)(a), did Malanji or Lusambo resign by notice in writing to the Speaker? The answer is NO. Let us go to article 72(2)(b), did Malanji or Lusambo become disqualified by reason of article 70? The answer is NO. Let us go to article 72 (2)(c), did Malanji or Lusambo act contrary to the prescribed code of conduct? The answer is NO.
7. In fact, let us not waste time going through each of the nine ways in which a parliamentary seat can become vacant. Let us just go straight to the three provisions which are excluded by article 72 (4) as a basis for preventing a person from standing for election. For ease of reference, let us paraphrase article 72 (4) here. Article 72(4) states: a person who causes a vacancy in the National Assembly due to reasons specified under clause 72(2)(a), (b), (c), (d), (g) and (h) shall not, during the term of that Parliament;
(a) be eligible to contest an election; or
(b) hold public office.
We can see from the above that only 72(2)(a), (b), (c), (d), (g) and (h) are listed as the basis for barring someone from re-contesting their seats. On the other hand, (e), (f) and (I) are not included. In other words, if the vacancy was caused by 72(2)(e) i.e. if Malanji or Lusambo lost their seats due to being expelled from the PF, then they would be eligible to re-contest. Similarly, if Malanji or Lusambo lost their seats because they ceased to be citizens of Zambia, then they would be eligible to re-contest, except of course they would not meat the requirements of article
70, which requires one to be a Zambian citizen in order to contest as a parliamentary candidate. Similarly if Malanji and Lusambo had lost their seats by operation of article 72 (2)(i) i.e. if they had died, then according to the law, they would be eligible to re-contest their seats. Except of course they would not be available.
8. The bottom line here is that both Malanji and Lusambo do not fall within the three exceptions that are provided by article 72(4) in which a person who caused a parliamentary vacancy can re-contest their seat. Having established that fact, anything else does not matter. Meaning that the argument by LAZ that neither Malanji nor Lusambo were specifically disqualified by the Court, does not carry water. It simply does not matter. What matters is that neither Malanji nor Lusambo falls under the three exceptions provided by article 72(4). However, in their statement, LAZ was right on one issue; that the Constitutional Court had created a lacuna by failing to use the exact wording of article 72 (2) in issuing it’s judgement. Instead of saying that the Kabushi and Kwacha seats had been nullified, the Court should have said Lusambo and Malanji had been disqualified. The word “nullification” is not in the Constitution as far as parliamentary seats are concerned. Only the word “disqualification” is present. In this particular case however, it is evident that the two words are being used synonymously. Therefore, in this instance, ECZ is on firm ground and LAZ is misdirected.
There’s no political party in Zambia that has over 1M members, so a large number of people that vote for you are mere sympathizers. So in all its actions the UPND mustn’t think that they’re fixing the PF. 1.8M voted for ECL because the PF allowed them to build although illegally but it had a human face. At least they had shelter. The UPND has demolished, although legal it’s inhuman. Illegality in Zambia is everywhere. The President’s continued stay at Community House is illegal unless it’s gazetted. His non declaration of assets is equally illegal. This is why Tayali & Nkombo should have engaged the people before undertaking such an adverse exercise. GEAR & Chipenzi are a sewer septic tank NGO that has been used to lean on the ECZ. The people of Kasompe will answer you through…
The people of Kasompe will answer the UPND through Kwacha and Kabushi.
What a cheap way of articulating issues
moderated again
Well done Sean. You have analysed the situation spot on. The Concourt in their haste to deliver judgement never saw this coming. Laz also has a problem, failed to analyze the issue step by step.
This is not correct. Definitely not, ECZ has no authority to disqualify any candidate prior to the candidate’s filing of nomination. That’s not their job, that’s what the ConCourt is for. Ideally, Malanji’s case is unique in that he does possess a G12 which he never submitted before, he meets all requirements and did not lost his seat due to anything listed under any of the many quoted Articles.
Lusambo’s filing of nomination will be successfully challenged at ConCourt, there is no way they will tolerate him there.
I’m also shocked that the gentleman at ECZ hastly came up with that letter. First time I have seen this and I have been around for a long time. What used to happen is that disqualifications came in after filing nomination and issues were raised. But ba PF can field another person because the ECZ instead of disadvantaging them have given them a chance to field “clean” candidates rather than having these gentlemen being removed from the ballot afterwards.
(h) is disqualified as a result of a decision of the Constitutional Court;….period! is this difficult to comprehend? Even a heuristic analysis shows that it does not make sense for an MP to contest when the courts have found that MP to have transgressed the electoral law. There should be a time lapse analogous to one serving a sentence. Like wise the MP who causes a bye election by way of the decision of the courts should stay away from the current term.
@ Alfred, Lusambo is disqualified as a result of a ConCourt judgment which found he engaged in violence and corruption. No one is arguing that point.
However, it is not ECZ to disqualify a candidate when the candidate meets the requirements set by the constitution.
That would open a can of worms, we have disqualified this person because he is tall, doesn’t look Zambian, we expect he has two wives etc. If requirements are met, ECZ should accept, and others should challenge in the court as per constitution.
Malanji in my view qualifies.
Ba Chiza, ECZ just applied the law. Simple. They did not disqualify anyone, but the constitutional court did by virtual of its decision. ECZ just remained aspiring nominees what the law provides for. And it will be incompetent for ECZ not understand and apply the laws that guide their activities .
It’s better for the two gentlemen to let go….. even though pali ulufyengo.
That is what happens when people work under instructions and not under the rule of law and only want to fix same persons.
That is what happens when people work under instructions and not under the rule
That is what happens when people work under instructions and not under the rule of law
Which ever side the coin falls the monkey is dead
James Hadley Chase
AS usual, this sounds like a junggle of no laws ! I mean, why are you discussing and debating this issue NOW at the last minute when already this case was known on August 12th under the article, I quote: “UPND Cadres Say Bowman Lusambo and Joseph Malanji are automatically disqualified to Re-Contest their Seats” end quote.
As my contribution to that article, I published the article 72(4) that both ECZ, LAZ and SEAN Tembo are referring to. Then, I was expecting a debate right and then, but ALAS! our LT Bloggers, were busy doing what they are best at – insulting each other. And NOW they are surprised, why are you suprised? EVEN du.ll PF acting President, went on to nominate Malanji & Lvsambo WITHOUT questioning article 72(4). WHY? they were waiting for this chaos to happen, that is what…
It’s amazing how all these legal traps that PF made for UPND are now effectively catching PF every day . It’s the biblical story of Mordocai!!!
LAZ has been misleading on many occasions, how does a violent chap be allowed to recontest. For Malanji, all he has to do is produce his Grade 12 certificate and stand. For the Kabushi guy, hard lucky, but then he is not even popular, go and see the poverty levels in Kabushi, He was just dangling money and creating an artificial mob following him mistaken for popularity
PF PF PF More money in peoples pockets, for ten years zero money in peoples pockets especially in Kabushi and you still wat to stand. You stand and see how you will be walloped. Let us circumvent the law and allow the chap to stand so that he can get the message that he did not do anything in Kabushi for ten years, as for Malanji I think he tried, but Kabushi is a total mess, poverty wise
Former Hon. Lusambo and Malanji are useless headless politicians who think the people are their areas can be bought with some cash…its time lock them up for good this thing of Catch and Release on the basis of police bond has made these guys a little famous
Edgar Lungu’s goons at the Constitutional Court are the problem. Those judges write judgements as though they are in year 4 of law school. If ZIALE was it was then as it is today, they would not have qualified to the bar. The CONstitutional court has become a CON. They d.o not solve any problem but keep creating problems
There is a reason they forced nshindano out so that their upnd prostitute can be given position. Eff you, your mamas, your fathers and anyone you care about
It is quite weird that LAZ has failed to interpret the constitution well. It is clear and has become embarrassing. Just pick other candidates, am sure you had other aspirants for those seats.
And Sean, you’re an accountant (and not an experienced one at that) not a lawyer, your interpretation of law is but as basic as 1,2 and 3.
He started well but went astray
This piece of law was not thought through… “a person who causes a vacancy in the National Assembly due to reasons specified under clause 72(2)(a), (b), (c), (d), (g) and (h) shall not, during the term of that Parliament.”…
In my reading and understanding, it also means the person who reported (caused) the case that led to any of the clauses ‘a to j’ to come to life should be disqualified. In this case, UPND candidates should be disqualified because the caused the nullification or disqualification (whichever) to happen. I think you left out this piece of analysis Mr. Sean Tembo.
Very intelligent observation.
Not entirely accurate, person who causes due to articles XXX. Did the person who petition cause the nullification due to the listed causes?
300 people will out vote a party that has brought peace and stability? I am waiting to see that. It was the sane wirding used in the Kabwata by-election and Given and all the usekess PF leadership had fhouted ” people of Kabwata teach the UPND a lesson”. The rest is history
Time has come for Zambians to sing loudly and clearly that 300-Kasompe demolition approach is not acceptable and not Zambian. Opposition should display, beyond the limit, this cruel behavior on social media. Stick the demolition photo on every post. Every T-shirt for the opposition should carry the message 300-Kasompe demolition NO brainier. We vote them to offer human, sustainable and acceptable solutions not 300 Kasompe demolition solution. The front end loader used to demolish more than 300 houses should have been given to soon to be black mountain victims in Kitwe.
The Court has ruled the ECZ letter offside. What next ba Upnd short of physical elimination of Lusambo and Malanji.
Even if both stood, they are very un popular. Go on the ground and check,
Godwin…. it’s not about being popular it’s about fairness. And where are you right now to make that judgement? Lusambos Entourage is so huge that it requires ZP in riot kit to ensure order. Anyway if they are not popular why not let them stand and beat them.
LAZ is right. Zambians, read.
SEAN and ECZ are wrong.
How many of the people in Zambia are able to read.
It is saddening to note that even SEAN in this instance will correctly try to interpret the constitution but wilfully decide to mislead readers. He lost his thought.
It is also saddening to note that we have people in the institution like ECZ who can’t get advice from legal brains but political manipulators to speak to the public with falsehood and impunity.
Going through the cited clauses in the Constitution myself, I note that it’s too saddening to note that I can interpret these clauses better than ECZ and SEAN. SEAN tried though.
For SEAN, politics went to his head in the end.
At law the interpretation of those two words is big.
Maybe in Accounts they mean the same.
Article 72(2) .(c) acts contrary to a prescribed code of conduct; Maybe ECZ has analysed that the duo by dishing out certain amounts of money to the voters did not act according to a prescribed code of conduct..
Sean Tembo busy writing articles abouts others instead of preparing his candidates for those vacant Parliamentary seats.
Can’t there survive out of politics.
LAZ should know that what was brought before the court was nullification so the court was in order to give judgment on the issue at hand which was nullification, Ecz is also on firm ground to apply the constitution as a result of the nullification by the court.