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Malanji, Bowman asks Court to suspend by-elections

Former Kwacha Constituency PF member of parliament Joseph Malanji and his Kabushi counterpart Bowman Lusambo have asked the Lusaka High Court to suspend by-elections pending the determination of the matter in which they have contested the Electoral Commission of Zambia’s decision to declare their nominations invalid.

The two fear that they will suffer great injustice should the High Court decline to grant their application to bring the by-elections to a standstill as their petition will be rendered an academic exercise and nugatory.

In this matter the duo wants the court to order that the ECZ holds fresh nominations for the two constituencies.

They want a declaration that the decision by the electoral body’s agents to decline their nomination amounts to interpreting the Constitution which is a judicial function and is in excess of the powers given to the ECZ under Section 4 of the electoral commission Act no.25 of 2016.
Malanji and Lusambo want an order of certiorari to quash the decision of the ECZ’s returning officers to reject and declare the nominations of the petitioners as invalid.

According to an affidavit in support of summons for leave to suspend or stay by-elections for Kwacha and Kabushi constituencies sworn by Malanji, the petitioner’s stated that on August 25, this year they filed their nomination papers and the returning officers of the ECZ declared their nomination invalid on reasons that their election in the August 12, 2021 general election was declared void.

Malanji said the High Court scheduled a status conference for September 8 at 14:00 hours.

The elections are slated for September 15, 2022 and there is a likelihood that that the matter may not be heard and disposed of by the time elections will be conducted.

“There is a chance that the petitioners will be deprived of their right to participate in the forthcoming elections for the two constituencies,” said Malanji. “This court is clothed with the necessary jurisdiction to order ECZ to stay or suspend any acts in relation to and holding of by-elections pending determination of this matter.”

Yesterday, the opposition Patriotic Front (PF) has saluted the Constitution Court ruling that has declared Bowman Lusambo and Joseph Malanji eligible to re-contest the Kabushi and Kwacha parliamentary by elections respectively.

Mr. Lusambo and Mr. Malanji had challenged in court the Electoral Commission of Zambia’s decision to reject their nomination to re-contest the Kabushi and Kwacha seat respectively.

Speaking after the Constitutional Court judgment, petitioners lawyer and PF official Makebi Zulu said ECZ must now put Mr. Lusambo and Malanji’s names back on the ballot ahead of the by elections in Kabushi and Kwacha.

Mr. Zulu said the judgment has also vindicated the PF’s earlier suggestion that someone is wrongly controlling ECZ.

“This judgment seals the fact that days of impunity are over. ECZ could not have taken it upon themselves to interpret the law, the law that was set on very clearly in the case of the Law Association of Zambia versus the Attorney General. ECZ choose to ignore the guidance that was given by the court in that case and made their own decision. They (ECZ) have no power to do so. The best they should have done, tell the people of Zambia that we do not understand this law, we are going to ask for an interpretation at the Constitutional Court in the manner that we did. In doing this we knew very well that our clients were on firm ground even when they went to file their nomination. We knew they were on firm ground. However, following on that decision the return officers decided to mislead themselves and take a wrong position to be the right position,” Mr. Zulu told journalists in Lusaka.

“Now we have been vindicated that someone is controlling ECZ and giving them wrong opinion as to what the law is but today the constitutional court has settled that matter with finality and Bowman Chilosha Lusambo and Joseph Malanji will be back on the ballot. We will fight to the hilt until they appear on the ballot because the court has made it abundantly clear. Well, the court has said nullification is not disqualification. Therefore, those whose seats were nullified and were not expressly disqualified by the court are eligible to stand. So, Bowman Chilosha Lusambo and Joseph Malanji are eligible to stand,” he said.

Meanwhile, PF acting President Given Lubinda said his party has been vindicated for insisting on adopting Mr. Lusambo and Mr. Malanji.

Mr. Lubinda further demanded that ECZ gives enough time to their candidates to campaign in Kabushi and Kwacha.

“Firstly, thank you to our formidable team of lawyers. I don’t think we could have assembled a better team than the one we had. Yesterday after they presented their argument I informed you that I was very pleased with their arguments and that I was leaving the rest to the bench. Secondly, I want to thank the Central Committee of the Patriotic Front for the decision they made. There were others who thought like many naysayers who thought that we should not adopt Malanji and we should not adopt Bowman Lusambo. I am very vindicated today that we adopted them and this is to show that the Patriotic Front demands loyalty from its members but also gives loyalty to its members. We wanted to remain loyal to Bowman Lusambo and to Joe Malanji because right from the start we were very firm that they qualified to be on the ballot paper in Kabushi and Kwacha respectively,” Mr. Lubinda said.

“We are very happy with this outcome and this outcome is not only for now. This outcome has now clarified a matter that has been vexing a lot of people. Today a law has been clarified that the nullification of a seat does not among to disqualification of a candidate. This is history and I would like to thank the ECZ for coming to court today and listening to this judgement. What we do now is to call upon the ECZ to do what the Constitutional Court has directed, to make sure that they put Bowman Chilosha Lusambo and Malanji back on the ballot papers for Kabushi and Kwacha Constituencies respectively but we are also going to demand that these two candidates of ours are given ample time to go and campaign because they were denied the opportunity instead of them campaigning we saw the Vice President (Mutale Nalumango) going to talk to five people, to kneel down before pastors, going to expose how this government cannot attend even to sewer lines. She was doing that to campaign at the disadvantage of Malanji and the disadvantage of Lusambo. We therefore demand that the ECZ notifies the country that they have postponed holding of the elections in Kabushi in and Kwacha so that they give the two candidates’ sufficient time to go and canvas for votes,” Mr. Lubinda said.

Four candidates filed their nomination in the Kabushi election while five candidates managed to file their nomination in Kwacha Constituency last month.

ECZ has set 15th September, 2022 as the date for the two parliamentary by elections.

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