Wednesday, July 24, 2024

Understanding Constitutional Court Judgment On Kabushi And Kwacha Constituencies

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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.

22 COMMENTS

  1. PF should blame its Lawyers who were riding on emotions instead of interpreting the law as it is, and further respect the decision of the High Court to stay the election. ECZ has the last laugh here.

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    • How does ECZ have the last laugh when te breached the High court order? This is the confusion the author is talking about …

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  2. “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.”
    In Zambia they leave to FB lawyers to interpret hence create further confusion ….what is the status of Bonanza and Bowman? This Concourt has been created at great cost to the taxpayer the least it can do is be concise when citizens take issues to them for interpretion.

  3. Back to square 1 . We need to clean up the judiciary so that important judgements aren’t ambiguous. We also need to grow up politically so that we’re able to settle our political contests without the involvement of courts. It’s political immaturity to always expect courts to settle our political differences

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  4. ECZ WILL BE HELD ACCOUNTABLE,ONE DAY JUST ONE DAY THESE THINGS WILL FOLLOW THEM.TODAY THEY LOOK CLEVER BUT THAT DAY IT WILL BAD ,THATS MY OPNION.THE SYSTEM IS POLOUS AND STINKING.

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  5. The High Court can lift the stay and ECZ can hold elections even a day before the expiry of the constitutional ninety days.The people of Kwacha and Kabushi should not be held hostage just because of two people that feel mortal danger if hey are not on the ballot paper.Failure to participate in an election is not deadly

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  6. In a country where the law rules, ECZ would not go ahead with election. The CoA said the HC order remains in force and HC time stopped at 16 days of the 21 days. So the HC will still have to deliver its Judgment.

    Trouble is ConCourt has created more confusion and not helped resolve matters of Article 52-6 when it had perfect opportunity. Court is always running away from making tough decisions that can last the test of time

  7. We now need the Con Court to determine as to whether a candidate can or cannot rescind the withdrawal. Furthermore, not canceling the nominations following two candidates’ withdraw would be illegal and any elections held under such circumstances would be null and void. In Short, ECZ just do the right thing and set a good precedent; level the playing field and allow for fresh nominations, that’s the only way you can cleanse yourselves from the bad publicity you have made so far. Zambia is bigger than all
    of us. Nipanotuli!

  8. Why proceed with elections whose results might be challenged in court because the elections might be null and void?

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    • To which court would you lodge a challenge because it would be the same grounds of appeal that would have already been decided by the same final court of appeal

  9. Even if lusambo and milanji are allowed to participate in elections and win………..

    They will continue to hold residents of kwacha and Kabushi hostage as they have very active criminal investigations around them…………

    Bowman is a murder and corruption suspect where there are witnesses and the deceased pointed out Bowman and he cant explain his sudden wealth………..

    Milanji is a corruption suspect involving the sale of foreign missions to buy helicopters with proceeds of a crime………

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  10. The ConCourt in Zambia is never helpful to our countries governance. We should turn it into a commercial and labour Court

  11. Believe it or NOT, the confusion will not end with the Kabushi & Kwacha bye-elections, instead the concourt has set another precedence for confusion in future. Next, some opposition parties will in future find a gap and use this situation as a reference.
    And this is because the concourt never explains itself……instead creates situations for confusion.
    Juggle laws…

  12. We have a very evil ECZ surely how do you reject or prevent someone from filing in nomination papers! From Unip to MMD and then Pf, Iam hearing such under the new doom government, Which upnd candidate was blocked mention just one! This is what happens when you remove qualified personal and replace them with cadres from upnd. This is pure dictatorship.

  13. The court of appeal will allow Bowman and his colleague to appeal in the Con court but it will be an academic exercises so the High court will lift the stay and since Bowman and Malanji wont be on the ballot box they will come back to the con court, the court of appeal will stay the decision of the High Court then say it has no power to rule on constitutional matters…then we shall be in limbo the questions the Con Court has refused to pronounce themselves on will be heard … with a dissenting view from Lusaka Water and Sewerage

  14. The courts will work better when they are not used to settle political scores. When the courts are abused for this purpose, they slowly start losing the skill to rule over day-to-day matters that are not political in nature.

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