BA HH, UPND MULETUTWALA KWISA? …why destroy the credibility of ECZ just to fix Lusambo and Malanji?

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By Fred M’membe
President of the Socialist Party

The Electoral Commission of Zambia (ECZ) has announced that the Kabushi and Kwacha parliamentary by-elections will be held on Friday, 21 October, 2022. The Commission has further stated that the campaign period in both constituencies will run from 11 to October. We find this move by the ECZ problematic for a number of reasons. And we ask the Commission to reconsider their decision.

First, following the earlier resignations of the two candidates in both Kabushi and Kwacha constituencies, which decisions were formally communicated to and acknowledged by the ECZ, it would be unconstitutional for the Commission to conduct elections in both 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.

Why is the ECZ abrogating the law and changing the precedent it has set when it comes to Mr Bowman Lusambo and Mr Joseph Malanji? And 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.

What those who had resigned cannot do is to pull back their resignations and crawl back into the race. Nix! It does not work that way. This is not a game. It is not chidunyu 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. We know they are under extreme pressure from the UPND, but if the three commissioners who made the decision – Mr Ali Simwiinga, Ms Ndiyoyi Mutiti and Maj Gen Vincent Mukanda Rtd – cannot follow what the law provides for, let them resign before they set the country ablaze.

Second, it is blatant lawlessness and contempt of court for the ECZ to proceed to conduct elections in both Kabushi and Kwacha when there are active processes relating to the same issue that remain before our courts of law. When a matter is in court, parties to the case cannot do some self-help measures outside the court process to correct the premise of the original dispute. That is lawless. As things stand, the ECZ’s hands are tied. Proceeding to hold elections in Kabushi and Kwacha before the matters that are in court are disposed of would amount to interfering in the court processes or in the matters that are before court. It actually amounts to contempt of court.

In the High Court, there is a case between Mr Lusambo and Mr Malanji and the ECZ that is yet to be determined. The judgment for this case was ready but moments before it could be delivered, the UPND rushed to the Court of Appeal to stop the Lusaka High Court from delivering the judgement. Why? It is possibly because the UPND may have learnt that the verdict was likely going to be in the favour of Mr Lusambo and Mr Malanji. Rather than facing the humiliation of losing to PF lawyers including Tutwa Ngulube, the Attorney General and his team appear to have decided that they would rather have no elections in both Kabushi and kwacha and deprive the people in these constituencies of representation in Parliament than allow the courts to pass any verdict that would clear Mr Lusambo and Mr Malanji to stand in the by- elections. But should the institutional credibility of both ECZ and the Judiciary be destroyed this way just to punish two individuals?

There is also an active case involving Mr Peter Sinkamba and Mr Isaac Mwanza versus the ECZ in the Constitutional Court. In the wake of the resignations of those two candidates from Kabushi and Kwacha, Mr Sinkamba and Mr Mwanza asked the Constitutional Court to order the ECZ to cancel the earlier nominations for both constituencies, call for fresh ones and organise a fresh election within the stipulated timeframe, as per the earlier cited provision of the Constitution. The matter was heard and the Concourt was supposed to deliver judgement on Monday this week, 10 October. But when the matter came up for judgement, the Attorney General applied to be joined to the case on the ground that it borders on public interest. Again, here, like was the case in the matter before the High Court, the UPND may have learnt that the verdict was likely going to be in favour of the petitioners and consequently moved swiftly to file an application that prevented the ConCourt from delivering judgement. Again, we ask: why this desperation?

The reason why the UPND is running from one court to another seeking to delay the delivery of any judgment that may go against them is that any cancellation of the earlier nominations in Kabushi and Kwacha would provide the opportunity for Mr Lusambo and Mr Malanji to file their nominations, since, in the wake of the earlier ConCourt judgment on their matter, nothing now stops them from doing so if fresh nominations are called. What we see here is the abuse of the court process by those in power today, one that the judiciary itself is perpetuating. The matter between Mr Sinkamba and Mr Mwanza versus the ECZ was already argued. Why did the Concourt allow the State to join the matter at the 11th hour when the court was set to deliver judgement? Where was the State all along or when the matter was filed and argued?

We urge our judges to refuse to be abused in this way. Let all the judges in the judiciary know that the best way of securing their credibility and the credibility of the judiciary itself is by dispensing justice in a timely manner and in accordance with the law. It is not by taking sides that appease one political group or another, be it those in government or those in opposition. The UPND and their supporters are quick to condemn the ConCourt when it suits them and similarly are quick to abuse the same judges again when it suits them.

It is also becoming clear that the Attorney General is not defending public interest in the matter of Mr Lusambo and Mr Malanji. He and his team appear to be defending the interests of the UPND. They seem to have decided that they would rather have no elections in both Kabushi and kwacha than allow the courts to pass any verdict that would pave the way for Mr Lusambo and Mr Malanji to stand in the by-elections. The UPND knows that they do not stand a chance of winning Kwacha and Kabushi if Mr Lusambo and Mr Malanji are on the ballot, hence this desperation to exclude the two from the ballot. But should we destroy the institutional credibility of both ECZ and the Judiciary just to punish two individuals? Why not defeat them through the ballot if the UPND is as popular, as they claim in these two constituencies? Not even Mr Edgar Lungu and the PF were so afraid of defeat that they excluded their political opponents from the ballot. Let Mr Lusambo and Mr Malanji stand. Defeat them fairly and through the ballot.

We ask the ECZ to reverse the decision they have made and wait for the active court processes to be completed. Destroying the credibility of this important institution just to disqualify Mr Lusambo and Mr Malanji is akin to shooting down an Airbus A380 plane carrying 853 passengers just to kill 2 people! We repeat: if Mr Ali Simwiinga, Madam Ndiyoyi Mutiti and Maj Gen Vincent Mukanda Rtd cannot comply with the provisions of our Constitution, we demand that they resign from their posts instead of setting the country on fire. No elections should be held in Kabushi and Kwacha without fresh nominations.

We also ask the UPND to stop abusing the ECZ and the justice system all in an attempt to block Mr Lusambo and Mr Malanji from standing. Yes, there are loopholes in our electoral laws but until the relevant law is changed, Mr Lusambo and Mr Malanji have the right to benefit from those loopholes. It is not the job of the UPND to determine who should lead our people. The job of the party in power is to deliver what they promised people when they were in opposition and hope that voters will reward them at the ballot. Mr Hakainde Hichilema and your UPND, muletutwala kwisa? Please stop destroying the credibility of our institutions. You were elected to rebuild, not worsen, the standing of ECZ and the judiciary in the eyes of the public.

Finally, we ask Mr Hichilema to appoint the substantiative leadership at ECZ so that they can in turn appoint the new CEO, as per the law. It is not healthy to our democracy and the strength of our formal institutions to leave such vital institution like ECZ being run by people on an acting basis. This leaves room for the manipulation of the ECZ that we continue to witness.