The Constitutional Court has ruled that both former Kabushi Member of Parliament Bowman Lusambo and the former Kwacha Member of Parliament Joseph Malanji are eligible to recontest their former seats.
In passing judgment on a matter in which Mr Lusambo and Mr Malanji challenged the Electoral Commission of Zambia (ECZ) decision to reject their nomination on the basis that they are not eligible to recontest their seats for having caused a vacancy in the National Assembly, Judge Palan Mulonda who presented the majority decision cited that the Constitutional Court ruled that the nullification of the duo’s elections did not amount to disqualification as Article 72 (2) distinguishes the difference between nullification and disqualification which cannot be used interchangeably.
Judge Mulonda ruled that candidates whose seats have been nullified are eligible to stand as the Constitution specifies the circumstances under which candidates are disqualified from taking part in an election.
“The Court stressed the difference between nullification and disqualification, citing that a nullification does not cause a disqualification,” Judge Mulonda cited
And Speaking after the judgement, Makebi Zulu one of the Lawyers representing both Mr Lusambo and Mr Malanji stated this judgment rules the fact that the days of impunity are over, hence the Electoral Commission of Zambia should not have taken it upon themselves to interpret the law that was settled very clearly in the case of the Law Association of Zambia vs the Attorney General.
Mr Zulu added that the Commission chose to ignore the guidance that was given by the Court in that case and instead made their own decision, as they have no power to do so.
“The best, they should have done was to inform the people of Zambia to say they do not understand this clause and they are going to query for an interpretation at the Constitutional Court in the manner that we did,” Mr Zulu said
“In doing this we knew very well that our clients were on firm ground even when they went to file their nominations, we knew they were on firm ground. However, following on that decision the Returning Officers decided to mislead themselves by taking a wrong position to be a right position,” Mr Zulu added
Mr Zulu explained that they have been vindicated that someone is controlling the Electoral Commission of Zambia by giving them wrong opinions on what the law is but today the Constitutional Court has settled this matter.
Mr Zulu noted that both Mr Lusambo and Mr Malanji will be back on the ballot, as they will fight to the end until they appear on the ballot because the Court has made it abundantly clear that the duo qualifies to recontest their seats.
Meanwhile, PF Acting President Given Lubinda has expressed gratitude over the outcome from the judgment as this has now clarified a matter that has been vexing a lot of people, and today the law has been clarified that a nullification does not amount to a disqualification of a candidate.
“As a party, we wanted to remain loyal to Lusambo and Malanji despite the naysayers because right from the start we were very firm that the two qualified to be on the ballot paper in Kabushi and Kwacha respectively,” Mr Lubinda said
Mr Lubinda thanked the Electoral Commission of Zambia for showing up Court to listen to the judgment passed, and he has since called upon the Commission to do what the Constitutional Court has directed in ensuring that they put both Mr Lusambo and Mr Malanji back on the Ballot paper for Kabushi and Kwacha Constituencies respectively.
“An injury caused towards any member of the PF is an injury caused to all members of the PF, and there was no way we were going to abandon Malanji and Lusambo simply because ECZ wanted them to be disadvantaged, we have proved that we shall stand by our members, come rain, come sunshine,” he said
Mr Lubinda has since demanded that the two candidates are given enough time to campaign because they were denied the opportunity and the Commission should therefore, notify the country that they have postponed the holding of the By-Elections in Kabushi and Kwacha in order to give the duo sufficient time to go and dialogue for votes.
“We saw the Vice President talking to people and going to kneel down before Pastors, going to expose how this government cannot even attend to sewer lines, she was doing that to campaign at the disadvantage of Malanji and Lusambo,” he said
“Today, God has answered our prayers as the Court has delivered very sound judgment and I don’t mind about the descending judgment, the judgment that has been given down to us today by the Court, is the judgment that will stand the test of time and will clarify things so that never again should ECZ pass the powers of the Constitution as they don’t have that power whatsoever,” he added
Mr Lubinda has since commended their team of lawyers for handling this case exceptionally and he also thanked the PF Central Committee for the decision they made to adopt both Mr Lusambo and Mr Malanji to recontest in their nullified seats.
“It’s now time for every member of the PF to put on their boots and go to Kwacha and Kabushi to ensure that we drum up support for our two candidates and show others that their tactics to have us not take part in the By-Elections has failed,” he stated
Yesterday, during the hearing, lawyers representing Mr Lusambo and Mr Malanji argued that ECZ had overstepped its mandate to bar the duo from filing nominations.
Their lawyer, Tutwa Ngulube in his argument stated that ECZ cannot just wake up and make a set of disqualifications for a certain group of candidates as it diffuses National values.
He said the impunity by ECZ contravened the provisions of the constitution and that the Commission overstepped its boundaries.
And Makebi Zulu who was also representing the duo, suggested in his arguments that ECZ did not understand Article 72 (4) as they failed to distinguish between a nullification and a disqualification.
Mr Zulu contended that the Article was misapplied, misinterpreted and an injustice.
However, the State in its arguments through the Solicitor General Marshall Muchende stated that the best decision was to dismiss the matter in totality.
Mr Muchende added that it was important to mention that Article 72 (2) b and h did not require the court to expressly state that a member was disqualified.
Mr Muchende cited that in the context, becoming disqualified is a metamorphosis and not a result of expression decree of the court and that the word disqualified is capable of assuming different things in terms of causality.