ECZ Commissioner Ali Simwinga defends the decision to announce Election dates for Kabushi and Kwacha

Electoral Commission of Zambia (ECZ) Commissioner Ambassador Ali Simwinga has defended the electoral body’s decision to announce 21st October 2022 as the date for the long awaited Kabushi and Kwacha by-elections on the Copperbelt Province.

The Electoral of Zambia on Tuesday announced that the delayed controversial Kabushi and Kwacha parliamentary by-elections will take place on Friday, 21st October 2022.

This is despite the ongoing court case in which former Kabushi Member of Parliament Bowman Lusambo and former Kwacha Member of Parliament Joseph Malanji are seeking to re-contest their old parliamentary seats.

The ECZ stopped Mr. Lusambo and Mr. Malanji from re-contesting in the by-elections by refusing to get their nominations saying they caused the two by elections.

Responding to a press query from Radio Icengelo News in Kitwe, Ambassador Simwinga wondered what error of principle or procedure the Commission has committed in announcing 21st October 2022 as the date for the long awaited poll for the Kabushi and Kwacha Constituencies in Ndola and Kitwe respectively.

In a written response, the respected lawyer and former Kitwe Town Clerk said Article 57(1) of the Constitution of Zambia requires bye elections to be held within 90 days of the occurrence of the vacancy.

Amb. Simwinga said holding a by-election within 90 days was mandatory and there are no exceptions.

He said in the case of Kabushi and Kwacha – the Commission is fast running out of time and failure to beat the deadline will create a serious Constitutional Crisis which has never happened in Zambia.

He said the court processes being referred to in the High Court such as the stay have been overtaken by events and lapsed owing to the letters of Articles 52(4) and 57(1) of the Constitution.

Amb. Simwinga added that the two independent candidates that had initially resigned their candidature which would have compelled ECZ to cancel the nominations and call for fresh ones have since rescinded their decisions.

“Good evening and thank you for your gracious message whose contents have been noted and appreciated.I’m particularly touched that you still consider me worthy of your esteem.I am humbled. Coming to the issues you have raised,I wish to politely state without prejudice that I’m not really sure what error of principle or procedure the Commission has committed in announcing 21st October 2022 as the date for the long awaited Poll for the Kabushi and Kwacha By Election.I say so my Dearest Friend because our view as a Commission is that Article 57(1) of the Constitution of Zambia requires bye elections to be held within 90 days of the occurrence of the Vacancy. This is Mandatory and there are no exceptions.In this particular case the Commission is fast running out of time and failure to beat the deadline will create a serious Constitutional Crisis which has never happened in Zambia.The Commission has to mobilise Ballot Papers and put in other logistic arrangements before the Poll itself,” he stated.

“It is also worth noting my Dear Friend that the Court processes being referred to in the High Court such as the Stay have in our humble view been overtaken by events and lapsed owing to the letters of Articles 52(4) and 57(1) of the Constitution. Further, the two Independent Candidates that had initially resigned their Candidature which would have compelled us to cancel the Nominations and call for fresh ones have since rescinded or withdrawn their resignations and demanded to be retained on the Ballot,” he said.

Amb. Simwinga said currently there was nothing legally that can stop the Commission from announcing and proceeding with the by elections for Kwacha and Kabushi Constituencies so that people can have representation in Parliament.

“Under the circumstances and in the absence of the two encumbrances,there fore nothing legally that can stop the Commission from announcing and proceeding with the by elections for Kwacha and Kabushi Constituencies so that our people can have representation in Parliament.The Commission finds solace on this stand in the case of Embassy Supermarket vs Union Bank Zambia Limited (SCZ 25 of 2007) in which the Supreme Court categorically stated that;

“Where a Statute imposes
a duty on a Person, the
the new date of the
Person charged with
the performance of the
duty, cannot be estopped
from exercising his
statutory Powers.”

My Dearest Friend, the Constitution of Zambia is the Supreme Law of the Land which binds all organs of the State , the Executive, the Legislature and the Judiciary.Under Articles 57(1)and 229, the Constitution has placed this huge responsibility of conducting bye elections and the entire Electoral Process on the Electoral Commission of Zambia and nobody else,not even our esteemed Courts as of now and failure to do so would create a Constitutional Crisis.” Amb. Simwinga wrote.

He concluded:”For the same reasons, the Commission feels duty bound to obey the Constitution by announcing the date of the Poll in Kabushi and Kwacha bye elections.

I have taken abit of time to respond and share this because we have come along way.It is my Prayer and hope that my principles and professional ethics will remain fundamental.Please accept the assurances of my highest regards.”

Some stakeholders in the electoral process have condemned ECZ for deciding to go ahead with the two by elections next week despite ongoing court cases relating to the poll.

Zambia Must Prosper Party (ZMP) said it is shocked by the ECZ’s decision to set 21 October as the day of voting in the Kwacha and Kabushi constituencies by-election when there is an active high court order for stay and other legal challenges awaiting final determination.

ZMP Party Spokesperson Trymore Mwenda said the decision is disregard for the courts of law by the ECZ under the UPND government.

“We have stated in the past and what ECZ is doing confirms the shrinking political freedoms of opposition political parties in this country since UPND assumed office.The UPND government and ECZ must know that this country belongs to all of us and that such arrogance can only be tolerated up to a certain point thus we urge them to do things for the greater good of the country.Zambians have not forgotten of an audio recording which went viral of two top UPND officials plotting to disadvantage a named opposition political party during the Kabwata parliamentary by-election,” Mr. Mwenda said.

The opposition Patriotic Front (PF) has since commenced legal action against Electoral Commission of Zambia (ECZ) for deciding to proceed with the by-elections in Kabushi and Kwacha constituencies on the Copperbelt Province without awaiting the outcome of the court processes.

PF acting Secretary General Nickson Chilangwa said the decision of the Electoral Commission of Zambia (ECZ) to proceed with the by-elections in Kabushi and Kwacha constituencies on the Copperbelt Province without awaiting the outcome of the court processes is an abrogation of the Constitution and contempt of court.

In a statement, Mr Chilangwa said in the legal action ECZ and its commissioners will be cited for contempt of court in their individual capacities.

He warned that the behaviour of ECZ is not only illegal but extremely reckless, irresponsible and is a recipe for serious public discordant.

“The behaviour of ECZ is not only illegal but extremely reckless and irresponsible and is a recipe for serious public discordant.It is now clear to the Zambian people that the ECZ has no desire whatsoever to allow the people of Kwacha and Kabushi to have a free and fair election and vote for candidates of their choice.ECZ and the public are fully aware that the issues of the by-elections in Kabushi and Kwacha are subject of active court processes to which the ECZ itself is part to. There are currently three court processes concerning the Kwacha and Kabushi by-elections;The High Court gave a specific order, ordering ECZ to stay the elections in Kwacha and Kabushi. The Court of Appeal ordered a stay of the delivery of the judgment of the High Court pending determination of the appeal filed by the Attorney General and the ECZ itself and there are proceedings in the Constitution Court on the interpretation of the 90 day period set by the Constitution concerning the period of holding of by-elections,” Mr. Chilangwa said.

The two by-elections were initially scheduled to be held on 15th September 2022 but could not proceed due to a court ruling.

The Lusaka High Court on 13th September 2022 granted Mr. Lusambo and Mr. Malanji a stay for the by elections in Kabushi and Kwacha constituency not to proceed as planned on 15th September, 2022.

Four candidates filed their nomination in the Kabushi election while five candidates managed to file their nomination in Kwacha Constituency in August, 2022.

Meanwhile, the High Court had last month granted the prayer by former Kwacha PF Member of Parliament Joseph Malanji and his Kabushi counterpart Bowman Lusambo to suspend the by-elections in the two constituencies pending determination of the matter in which they have contested the Electoral Commission of Zambia’s decision to declare their nomination invalid.

Judges Mwape Bowa, Sharon Newa and Catherine Phiri ruled that though the High Court does not have the authority to make a determination on constitutional matters, Article 52(4) of the constitution gives it the power to handle challenges relating to nominations in an election.

The trio said proceeding with the by-elections would be of grave injustice to Mr. Malanji and Mr. Lusambo as there was a likelihood of disenfranchising the duo by the time their petition would be determined.

Earlier in September, the Constitution Court declared Bowman Lusambo and Joseph Malanji eligible to re-contest the Kabushi and Kwacha parliamentary by elections respectively.

Mr. Lusambo and Mr. Malanji had challenged in court the Electoral Commission of Zambia’s decision to reject their nomination to re-contest the Kabushi and Kwacha seat respectively.