Africa-Press – Zambia. Debate has raged since the ECZ cancelled the Kabwata parliamentary by-election based on the provision of Article 52(6) which demands for the cancellation of an election at the instance of.the resignation, disqualification and death of a nominated candidate after the close of the nomination period.
For the record, ECZ’s action was lawful and constitutional. Once an election is cancelled, the Commission is not dictated by any timeframe in clause 52(6) as to when to invite fresh nominations from candidates only that once fresh nominations have been conducted, election must be held within 30 days.
The invitation of the fresh nominations is at the discretion and pleasure of the ECZ but must be in accordance with the dictates of ARTICLE 57(2) which demands for the filling in of the any vacancy in an elective office albeit of the MP to be done within 90 days after a vacancy has fallen due.
Now, imagine a candidate resigning/withdraws or dies a days to the election set date supposed this happens on exactly the 90th day of the falling due of a vacancy? What happens to that election? Have you imagined the Constitutional crisis being courted?
Is it that the election will be cancelled or fresh nominations are to be done on the same day the election is to be held or the 90 days demanded in ARTICLE 57 will be ignored and never to hold the election? Some people argue that Bill 10 was providing cure to this constitutional lacuna when infact not.
Amendment 11 of the Constitution of Zambia (Amendment) Bill No. 10 suggested the repeal of Article 52 in its entirety and that was the cause of controversy as it would have done away with any challenge of invalid nominations or disqualified candidates .
Article 52 needs not to be repealed but just to be amended especially clause 6 so that the rest of the clauses remain intact. Article 52 has key aspects of the electoral process that needs to be maintained and supported such as;
-procedure for nomination (Clause 1),
-powers by the ECZ to reject nomination papers when they are short of qualifications and procedural requirements;
-publication by the ECZ of information contained on the nomination paper and affidavit such as assets and liabilities declaration;
-the right to challenge the nomination of any candidate before a tribunal and court;
-the timeframe for hearing and determining the nomination challenge by the courts or tribunal which is pegged at 28 days;
-giving a deadline when any nomination challenge process by anybody is to be completed which is atleast 30 days before an election.
With the above, only clause 6 of Article 52 is problematic and with potential to cause constitutional crisis. It therefore, needs recasting and or repeal altogether. I submit McDonald Chipenzi The crisis emerges should