Thursday, June 20, 2024

Malamji and Lusambo Case: Test Case for Judicial Independence

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By Isaac Mwanza

The decision by Electoral Commission of Zambia (ECZ) to bar Hon Joe Malanji and Bowman Lusambo has moved the question out of the realm of who should be an independent referee to our court where independence of the Judiciary is now under further test.

On 25th August, 2026, ECZ Returning Officers from Kabushi and Kwacha, under instruction of ECZ, declared the nomination of Lusambo as invalid. The decision was immediately challenged in the High Court within 5 days under Article 52(4) of the Constitution which allows any person to challenge the nomination of a candidate within 7 days.

The only basis for the decision was that that the earlier election of both Lusambo and Malanji were nullified, hence disqualified.
Meantime, the Constitutional Court swiftly gave an interpretation that clearly said a nullification of seat does not mean a candidate is disqualified from recontesting. May I add that the vacancy which has been created has not been created by a candidate but by the decision of a court to nullify.

According to Regulation 19(7) of the Electoral Process Act (Regulation),

”The determination of the returning officer that a nomination is…invalid is final unless challenged through an election petition in accordance with Article 52 (4) of the Constitution.”

The High Court has sufficiently been clothed with jurisdiction to make a determination on the decision by a Returning Office to declare the nomination as invalid. Is the High Court up to meeting this statutory obligation and contribute to the growth of our nascent democracy?

Article 52 requires that the petition filed by both Lusambo is heard and determined within 21 days from 31st August, 2022. This means the High Court has upto 21st September, to hear and dispose the petition on whether the decision of the Returning officer to declare their nomination as invalid and male such declaration and orders.

Again I say, our Electoral Commission of Zambia has not assumed the same independence the Kenyan Independent Electoral and Boundaries Commission enjoys. We still far from attaining that independence so long as Commission are placed under the Executive.

On the other hand, our courts are facing the same test to shoe they can exert themselves and expediently determine matters and protect their own independence. The Kenyan Courts are by far a shining example on the African continent when it comes to timely dispensing justice.

The time has come when the Judiciary must open its door to the media to do live Broadcasts of these Court proceedings. The Judiciary is accountable to the people and must be seen to promote freedom to access and disseminate information.

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