By Isaac Mwanza
THE Constitutional Court, by a majority judgment determined that the Electoral Commission of Zambia had not breached the Constitution when it failed to cancel an election and call for fresh nominations after two independent candidates resigned because the Commission was respecting the High Court Order which suspended elections in Kabushi and Kwacha constituencies.
The reasoning by the majority was that immediately the High Court made an order to suspend the election from taking place in Kwacha and Kabushi Constituency, ECZ could do nothing pertaining to that election in Kabushi and Kwacha Constituency.
The order to suspend elections in Kwacha and Kabushi Constituency still remain in place.
The finding by the Constitutional Court is that ECZ has no optional but to respect the Court Order, and do nothing with the Kabushi and Kwacha by-election until the High Court Order is removed. The High Court Order can only be lifted by the High Court itself.
The Court also made a finding that contrary to what we the petitioners submitted, which is what ECZ also believed, by-elections can take place at any time outside the 90 days timeframe provided by the Constitution. Court is simply echoing that 90 days can be extended by Article 52(6) of the Constitution when the two provisions are read together.
The meaning of this finding is that if the High Court and the Court of Appeal Orders are lifted when 90 days is over, the Commission can still hold a by-election outside the 90 days and the election will still be legal.
The Court also refused to grant us the relief to order the Commission to cancel the election and call for fresh nominations because, as earlier held, nothing cam be done by ECZ to an election which has been stayed by the Court. The relief thus failed.
The Court also refused to declare that election held on the basis of nominations conducted on the 25th August, 2022 would be unconstitutional, which is what was prayed. Immediately, the Court ruled that the election was and remain suspended by the High Court stay, all other reliefs that we prayed for fell off.
In short, the Constitutional Court has simply affirmed the suspension of elections in Kabushi and Kwacha has tied the hands of the Commission.
They cannot do anything and any alleged omission cannot stand because ECZ is under an obligation to respect the stay that was granted by the High Court.
There is thus no basis for ECZ to be expected to do an action in relation to the Kabushi and Kwacha Parliamentary by election until a stay has been removed by the High Court. The High Court cannot do anything, remove or not remove the stay, because its proceedings have been stopped by the Court of Appeal. This is where we are.
The Constitutional Court has not given authority to the Commission to go ahead and conduct elections in Kabushi and Kwacha.
The confusion going on among members of the public can be understood because the Court leaves the media to intepret its decisions. In South Africa, the Constitutional Court usually issues a brief to explain its decisions so that everyone who was not in court can be on the same page.