By Dr Fred M’membe President of Socialist Party Zambia
Why is the Electoral Commission of Zambia (ECZ) abrogating the law and changing the precedent it has set when it comes to Kabushi and Kwacha? On Monday, 17 October 2022, the Constitutional Court recognised that the order by the High Court to stay the elections in Kwacha and Kabushi Constituencies, remains valid.
Further, can the ECZ cite any law that empowers the Commission to proceed to conduct elections if a candidate who had resigned changes their mind after the Commission has even acknowledged receipt of their resignation? What the ECZ has done this time is lawless. The law requires the Commission to cancel the nominations and call for fresh ones only. There is no law that provides for a nominated candidate who has resigned to rescind their decision after resigning. After receiving the resignations of the two candidates, what the ECZ should have done is to call for fresh nominations from all eligible candidates. Anyone interested, including those who had resigned, would be free to file their nominations, if they are eligible to stand for the election.
It will be unconstitutional for the ECZ to conduct elections in Kabushi and Kwacha constituencies without calling for fresh nominations. Article 52 (6) of the Constitution of Zambia provides that “Where a candidate dies, resigns or becomes disqualified in accordance with Article 70, 100 or 153 or a court disqualifies a candidate for corruption or malpractice, after the close of nominations and before the election date, the Electoral Commission shall cancel the election and require the filing of fresh nominations by eligible candidates and elections shall be held within thirty days of the filing of the fresh nominations”.
This is the only provision that deals with the resignations of successfully nominated candidates. In both Kabushi and Kwacha, we had a candidate who resigned and the ECZ acknowledged receipt of their resignations. Once a candidate has resigned, the law requires the Commission to cancel the existing nominations, call for fresh nominations by eligible candidates and hold a new election within 30 days of the date of the new nominations. Indeed, this is what the ECZ has previously done. When a candidate belonging to the opposition UPP who had successfully filed nomination papers for the Kabwata by-election resigned, ECZ immediately cancelled the election and called for fresh nominations.
When Ms Charity Lumpa who had successfully filed nomination papers for Lusaka Central resigned as an independent candidate prior to the 12 August 2021 election, the ECZ cancelled the earlier nominations and called for fresh ones.
We want to remind the ECZ that this is not a game where one can do whatever they like without any regard to the laws of the land. The decisions of the ECZ should always be based on the or backed by law. The ECZ should stop this lawlessness and do the correct, legal thing.