Kabushi and Kwacha By- Elections Are Being Held Under Article 57(1) and not Article 52(6)

By Mcdonald Chipenzi
I have been overwhelmed with calls and inbox texties on what is my view on the recent Concourt ruling on Kabushi and Kwacha. I had tried to resist the temptations to give my views before reading the full judgement.

However, the pieces of the judgement i have gathered so far, this is what i make of it. I think the Concourt’s talk about elections being held beyond 90 days wss in reference to an election held under Article 52(6) which was the subject of interpretation and not under art 57(1). ARTICLE 57(1) was not under interpretation underwhich the current by-elections have been called on. The only reference to ARTICLE 57(1) in the petition was on the call on the Court to order ECZ to cancel the by-elections, call for new nominations and hold the new elections under ARTICLE 52(6) read together with Article 57(1).

With the COURT not granting that wish from the petitioners, it goes without any argument that the by-elections called by the ECZ under ARTICLE 57(1) not under ARTICLE 52(6) stand intact and follows the demands of this Article. The demand of this Article is the guidance that *Where a vacancy occurs in the office of Member of Parliament [Kabushi and Kwacha in this case], mayor, council chairperson or councillor, a by-election SHALL be HELD WITHIN ninety days of the occurrence of the vacancy. Note the use of the mandatory word SHALL and also *Constitutional Marginal Note: By-election on ARTICLE 57(1). Article 57 (3) further empowers that The Electoral Commission shall, by* *regulation, set the place*where, and the date and time when, a by-election is to be held* but within 90 days.

To this effect, those who were duly rejected were pushing an agenda that the ECZ holds the Kabushi and Kwacha by-elections under Article 52(6) using the puppeted “resignations” of some independent candidates and the court earlier ruling starting that the duly rejected were eligible. However, this seems to have failed through the recent Concourt ruling that declined to give relief to the petitioners of cancelling the by-elections called under ARTICLE 57(1) so that they are held under ARTICLE 52(6). Had this petition succeeded, it would have meant strictly heeding to its demands which are calling for FRESH NOMINATIONS due to death, resignation and disqualification of a duly nominated candidate and this death, resignation and disqualification occured after the close of nominations and before the election date. This would also entail holding FRESH by- elections within 30 days of the filing of fresh nominations but now under ARTICLE 52(6).

Ideally, this whole new process that could have been triggered by the judgement was supposed to done within 30 days before the new set election date by the ECZ. However, in my view, the reasoning of the Concourt majority rule is that elections held under circumstances occasioned by ARTICLE 52(6) can’t respect the 90 days period rule prescribed under ARTICLE 57(1) as this may be impractically impossible.

The impossibility arise from the fact a candidate can resign, and die even 7 days or less to the election late as no one has no control of such happenings. Resignation and death cannot be controlled though resignation can be managed through the maturity of the contestants. ARTICLE 52(6) is only fit for a disqualification since the COURT is given a timeframe of 28 days (7 days lodgement of petition and 21 for hearing of petition) in which hear the petition which days fall within the 90 days.

UNDER this proviso,[ARTICLE 52(6) the ECZ will still have to cancel the election, call for fresh nominations, set new election date and hold the new elections if a candidate resigns or dies a few days to the elections which can be held after the original election set date UNDER ARTICLE 57(1). With this understanding, the guidance from and by the COURT on the by-elections held under ARTICLE 52(6) that they can be HELD beyond the within 90 day-period is *very correct* in my view.

The by-elections can be held beyond the within 90 day period stipulated under ARTICLE 57(1). However, context must be emphasised that it is for election held under the provision of ARTICLE 52(6) not Article 57(1). Actually, strictly speaking Article 52(6) talks about within 30 days and therefore an election held UNDER this Article have a high chance of being held beyond the within 30 day timeframe provided in ARTICLE 52(6) to the set date for election. Further scan of this ARTICLE 52(6) reveals that actually such an election envisaged to be held UNDER this Article cannot in fact be held if contested by manipulative candidates who can be resigning in successions before the the election date.

Therefore, coming to KWACHA and Kabushi by-elections which is the subject, the by-elections for Kabushi and Kwacha were called to be held and will be held under ARTICLE 57(1).
This Article demands that any casual vacancy in the office of the MP must be filed within 90 days through a by-election to be held WITHIN 90 days. This within 90 day timeframe provided under the ARTICLE cant be extended by either ECZ or the Court unless disrupted by ARTICLE 52(6) or amendment to the Constitution.

Any extension or disregard of this timeframe enshrined in the Constitution by any organ of the state would have offended Article 1(2),(3) and (4) of the Constitution which states;

Clause (2) stresses that An act or omission that contravenes this Constitution is illegal
Clause (3) guides that *This Constitution shall bind all persons in Zambia, State organs and State institutions* and,
Clause (4) cautions that *The validity or legality of this Constitution is not subject to challenge by or before a State organ or other forum*

As it is now, ARTICLE 52(6) has not disrupted the nomination process held on 25 August 2022 and conducted by the ECZ and also the by-elections that were supposed to have been held on 15 September 2022.

The only disruption was to the election process which is done by the HIGH COURT decision to suspend the holding of by-elections temporarily which decision was later challenged by the decision of the COURT OF APPEAL. In this regard, the by-elections in KABUSHI AND KWACHA must be held WITHIN 90 days without fail as demanded by ARTICLE 57(1) that triggered THEIR being.

In my view, *ECZ is on terra femme ground to set the new date of 21 October which falls within 90 days because there is no court that has cancelled the nominations held on 25 August, campaigns that started on 25 August and later on the by-elections themselves.*