WHAT WE HAVE IS A CONSTITUTIONAL CRISIS AND WE SHOULD ACT FAST

The Scoop editorial: September 13, 2022

ANY piece of legislation that needs interpretation at every turn is a bad law and the same can be said about the current Constitution.

By legal terms, a bad law may be considered to include unsound interpretation of legal principles, or a proposition of law that is erroneous, or an attempted statement of the law that is inaccurate, or non-law. A bad law is in many instances nothing else than bad logic and this is our view of the current Constitution of Zambia.

We amended the Constitution because we thought we had an archaic, old piece of legislation but we then came up with the worst; one signed with closed eyes and we instead of making progress, we are back to where we started from.

By-elections are costly. The country loses huge resources just to hold a by-election but according to our Constitutional Court, one who caused the country to lose so much resources can still be allowed to recontest the same election for which his or her seat was nullified.

Talking about logic, what logic is there in allowing someone who has caused a by-election thereby causing the nation to lose huge resources to still recontest? If Constitutional Court decisions are anything to go by, then, we should think about amending this Constitution as a matter of urgency so that we have clearly defined clauses which are straightforward and need no other interpretation.

A good law should interpret itself. A good law must be easily understood by the ordinary person on the streets but anything that needs expert interpretation is useless. The creation of the Constitutional Court has even exacerbated the situation. Since it has the final authority to determine all constitutional matters, no matter how illogical its decisions may seem, one has nowhere to go to complain and therein lies the problem.

No long ago, the Constitutional Court was presented with a presidential petition and never made a decision on the matter or even advised when the 14 days in which the petition was to be heard would elapse and only on the last day, the petition was dismissed on account that the 14 days had elapsed.

Here is another classic example; Charity Lumpa, one of the PF aspiring candidates for the Lusaka Central seat in the 2021 elections, resigned from the party after being left out of adoption. She then filed as independent candidate on May 18, 2021 and her nomination was validated by ECZ.

Three days later on May 21, 2022, she announced her withdrawal of her candidature as independent candidate but the other candidates carried on with campaigns but on June 23, 2021, the ECZ announced that Lumpa “resigned”, quoting Article 52(6) of the Constitution of Zambia.

The ECZ went ahead to call for fresh nominations because Lumpa was said to have resigned but resigned from what? Lumpa was an independent candidate and it would have been understood if she had filed under the PF and then resigned from the party but this was not the case.

The withdrawal of candidature is not covered under Article 52(6) of the Constitution but is provided for under the Electoral Process Act No. 35 of 2016 in section 31(2) which says a nomination submitted under subsection (1) may be withdrawn at any time, before the expiry of the period appointed for lodging nomination papers in respect of the constituency concerned, if the candidate delivers to the returning officer a written notice to that effect.

Simply put, withdrawal of nomination can only take place before closure, which was May 18, 2021, in this case. Once that period has passed, you cannot withdraw.

On the other hand, Article 52(6) of the Constitution provides that where a candidate dies, resigns or become 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 elections.

Now, did Lumpa die? No. Did she resign? No. Did she get disqualified? No! So, what was the basis of ECZ’s decision? Today, we are back with the same situation; one of the independent candidates in Thursday’s Kabushi parliamentary candidate Albert Yombwe has withdrawn from the race citing uneven playing field.

Yombwe simply withdrew from the elections but in his letter, in order to appear clever though dumb, says he has resigned. Resigned from what? Now, because there is the Charity Lumpa precedence, we see the ECZ wadding through its illegality again to call for fresh elections! Just how did we get here?

These are the challenges of a Constitution signed with closed eyes as someone said and all these lacunas mean one thing; the Constitutional Court will continue having a field day, either by advancing personal interests or otherwise.

We can debate day and night but it is only the Constitutional Court that has the exclusive right to make determination as it deems fit over Constitutional matters and we will continue complaining about some of these bogus decisions until we remedy the poison in the Constitution.

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