Monday, June 17, 2024

The Legalities or Illegalities of KAbushi and Kwacha By Elections: What is the Truth

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By Mcdonald Chipenzi

The just-ended by-elections in KABUSHI AND KWACHA have attracted mixed reactions from mainly political and social comentators not contestants.
With others calling the by-elections as a *sham*, others, an *illegal* while others arguing that they were *exclusive*
The by-elections legally and constitutionally held under Art 57(1) triggered legal challenges in accordance to Art 57(4) but unfortunately, the end results of these legal battles was failure to stop the election process in Kabushi and Kwacha.

Legally, some of the principles of an electoral process include that *elections are free and fair and that election are free from violence, intimidation and corruption* (Art 45) while Electoral Process Act 3 (q) and (s) further talks impartial handling of election complaints and timely resolution of electoral disputes* among others.
By free election it denotes *freedom of the contesting parties and candidates to freely campaign, associate, express and assembles while a fair election means an election the rules of the game i.e the provisions of the code of conduct, electoral laws and constitution are respected*

It is agreed that the Kabushi and Kwacha by-elections were heavily contested legally which legal battle was aimed to timeous resolving electoral disputes.
Lawyers for ECZ, Attorney General’s Chambers and those for duly nominated and duly rejected candidates trotted from one courtroom to another in an effort to exercise their right to electoral justice.

However, apathy characterised the two by-elections, causes factors I will discuss in my next article.

Having visited and exhausted all legal options, the Kabushi and Kwacha parliamentary elections had to proceed legally and constitutionally.

The illegalities, in my view, were committed by the Court which uniterally declared its power to stop the time at which decision was unconstitutional and the decision to stay the by-elections beyond the 21 days meant for the Court’s judication on any nomination matter which was illegal and unconstitutional.

Coming to the stay by the High Court as rightly observed by the CONCOURT, it elapsed IMMEDIATELY the 21 days fell due as per specification under Art 52(1-5) which only awards 30 day maximum (Art 52(5) to complete the process of nomination from nomination challenge to the determination.

In this regard, the nomination happened on 25 August and aggrieved candidates were given 7 days to challenge the nominations which 7 days expired on 31 August and the nomination challenge by Joe Malanji and Bowman Lusambo was done on 30 August.

As per dictates of Art 52(4), the 21 days started ticking immediately the nomination challenge’s lodgement was filed in court on 30 August, 2022.

The 21st day after the nomination challenge lodgement was 21 September 2022. This date was way outside the date the ECZ announced the decision to set a new date which on 11 October.

This was 20 days after the collapse of the High Court stay on the by-elections due to want of time. This makes the decision of the ECZ not only legal but Constitutional correct and right as per guidance of Art 57(3).

However, on 12 and 13 September respectively, two independent candidates each from Kabushi and Kwacha respectively “resigned” from the election process triggering the possibility of ECZ calling for new nominations and the hold for fresh elections as per guidance under Art 52(6).

On the 9 Sept, Malanji and Lusambo filed a lawsuit in the High Court to stay the by-elections which was granted on the 13 Sept, 2022, three days later the independent candidate for Kabushi resigned i.e. 12 Sept and a day after the one for Kwacha [i.e 13 September] also “resigned” on the very day the High Court actually granted a stay on the two by-elections.

As can be seen in the chronological of events, the purported “resignations” of the independent duo happened after the lodgement of a lawsuit to stay the elections by Malanji and Bowman Lusambo tying the ECZ from canceling the election as a result of the “resignation” of the duo as there was no election to cancel at the time.
*On 6 Oct the two resignees rescinded their decision to “resign” while the High Court “stay” on the by-elections was seemingly not yet discharged though already expired on 21 September 2022 by the operation of law*

Consequently, because the High Court was stopped by the Court of Appeal to rule on the by-elections which would have lifted the stay, *the illegal stay remained but without force of law on time prescribed in the Constitution*

From the foregoing, *it is clear that the elections in Kabushi and Kwacha were NOT a sham nor were they illegal but legally and constitutionally constructed*
Instead the illegalities and unconstitutionalities were/are visibly seen in the various decisions of the various courts trotted to and these are the institutions that might have committed the illegalities in their various decisions due to seemingly failure to properly interpret the Constitution on time and also on appeal.

However, this was redeemed by the CONCOURT’s last ruling on 20 October, 2022 admitting that the *High Court Stay on the Kabushi and Kwacha parliamentary elections was annulled by time-lapse and that the Court of Appeal was wrong to have handled the appeal on elections instead of the CONCOURT and also that Court of Appeal was wrong to claim to fixate time specified in the Constitution and also to Stay the stay from the High Court*

To this end, *the truth is that the Kabushi and Kwacha parliamentary elections, despite the low voter turnout, were legally and constitutionally constructed, held and properly conducted by the ECZ and the electoral disputes were resolved within 90 days by the Courts enough time for the holding of the by-elections as specified under Art 57(1)*
Therefore, the truth is that the claims of illegalities, exclusiveness and shame are dismissed with the contempt they deserved.

The truth is that the newly elected duo were properly and duly elected and any question on their legitimacy can only be done by dragging the provisions of Art 73(1-4) of the Constitution and as per specification under Section 96 of the electoral process Act.
Court Rise

25 COMMENTS

  1. The candidates who resigned their candidature from the respective by-elections cannot be reinstated by simply rescinding their earlier decisions. Fresh nominations should have been held.

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  2. FoOLish article from a biased mind. There’s nothing legal about these elections as #1 has pointed out. This should include
    1) Dates on the ballot… these were not social club elections where ballot papers can be phantomed from any piece of tissue.
    2) Agents of the nearest candidate were arrested by Upnd cadres and detained at the police station in Kabushi…so where’s the Free and Fair nonsense.
    I know you are still hopeful for the ECZ job so you don’t want to jeopardize your chances.

  3. Shallow article from a biased mind. There’s nothing legal about these elections as #1 has pointed out. This should include
    1) Dates on the ballot… these were not social club elections where ballot papers can be phantomed from any piece of tissue.
    2) Agents of the nearest candidate were arrested by Upnd cadres and detained at the police station in Kabushi…so where’s the Free and Fair nonsense.
    I know you are still hopeful for the ECZ job so you don’t want to jeopardize your chances.

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    • Look at this one………

      Typical of PF who thinks printing ballot papers uses mana from heaven……….it costs money printing ballot papers……..so what if old papers were used to save money ??
      That is why zambia has unsustainable debt they could not even payback with this kind of thinking in this tribal clique party of corruption

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    • I hear you sleep with men for you to survive.
      PF is a Zambian party and is composed of Zambian people. No matter what you say or do it will not just disappear by your wish.
      People removed PF from office because of the same nonsense your party is exhibiting.
      We expected the rule of law and decency but what we have is hooliganism dressed in business suits.

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    • PF is tribal party……….

      What is wrong with using ballot papers that have old dates but same information ???

      You are just a dullard……….

      This GRZ is not reckless with tax payers money like you corrupt thieving tribal supremacists PF goons…….

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  4. The minister of justice persuaded and cunningly courted the Court of Appeal to overturn the stay when he knew all too well that ALL constitutional matters must only be handled by the Concourt.
    The AG was on leave of absence for several days attending a seminar: avoiding court sessions so the 21 days on stay cancels the case.

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  5. Mcdonald Chipenzi is arguing by quoting different sections of the constitution, if you are trying to challenge him, please give the sections of the constitution that supports your argument.
    Your shear opinions are not legally binding or would not be true,and are biased and contributing to the noise.

  6. Mcdonald Chipenzi , give us a break, we want this dark period to pass. No matter what, it was wrong and it will never be right. Go and get a PHD.

  7. The most interesting facts is that the judges , commissioners and institutions involved in the Kwacha and Kabushi election petitions
    1) ConCourt – All judges are PF appointees
    2) Appeals Court- All judges are PF appointees
    3) ECZ commissioners – PF and MMD appointees
    4) High Court- PF and MMD appointees

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  8. #6 independent… have you been living under the rock all this while….
    You don’t know that the ECZ left by PF has been dismantled
    Did you follow what was happening in the courts or you just want to praise sing?

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  9. #6 Independent.. Have you been living under the rock all this while…
    The ECZ left by PF has been dismantled
    Did you follow what was happening in the courts..or you are just praise singing?

  10. So McDonald you think we are so dull not to reason on our own. We know you are looking for a job in government and you will do everything possible to please your masters. Just like we kicked out MMD and PF, UPND is on its way out.

  11. Using tribe to think is so dengerous.ba Chimpzi let us start thinking than destroying the country through dictatorship.Why did you disqualify malangi and bowman when the court said they were elegible.I have such educated chaps who use tribe to think.We need to grow up and not this nonsense of supporting based on region.Zambia is gone with such thinking.Destroying the country bcoz bantustan president was scared.he has just destroyed himself.

  12. Using region to think s so dengerous.ba Chimpzi let us start thinking than destroying the country through dictatorship.Why did you disqualify malangi and bowman when the court said they were elegible.I have such educated chaps who use region to think.We need to grow up and not this nonsense of supporting based on region.Zambia is gone with such thinking.Destroying the country bcoz bantustan president was scared.he has just destroyed himself.

  13. Chipenzi wants to be ECZ CEO and which country can be normal having this man?The country can into chaos bcoz for them it’s sastifying the region instead of the country despite Zambians voting for the man they want to divide the country.That is pure backwards ba chipenzi

  14. Both elections were fair. This man Lusambo is in fact supposed to be in jail for murder. And this grade failure from Kwacha who even bought a helicopter from stollen money must also be locked. Why protecting this criminals?

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