THE Electoral Commission of Zambia (ECZ) says halting the Kwacha and Kabushi parliamentary by-elections would deprive constituents of a representative in the National Assembly.
Acting chief electoral officer Bob Musenga has told the Lusaka High Court that the power to postpone the polling date of a by-election is a mandate of the ECZ that can only be exercised in accordance with the law.
This is in a matter where former minister of foreign affairs Joseph Malanji and former Lusaka Province minister Bowman Lusambo have petitioned the ECZ and the State in the Lusaka High Court over the decision by returning officers to declare their nomination invalid.
The duo had asked the court to postpone the by-elections pending determination of the matter.
In opposing their request, Musenga said if a stay is granted the candidates who successfully filed their nominations in Kwacha and Kabushi constituencies will be prejudiced.
According to skeleton arguments in support of affidavit in opposition to summons for an order for suspension of elections pending determination of the petition, Musenga said Article 229 of the Constitution provides that the ECZ shall implement the electoral process, and part of this process is prescribing the date for the holding of nominations and poll day.
“The petitioners cannot stop the ECZ from performing its statutory functions on the ground that their rights will be infringed,” argued Musenga.
“The affidavit in support of summons for an order for suspension of elections pending hearing and determination of the petition filed by the petitioners on September 7, 2022 does not demonstrate good and convincing reasons. It is our prayer that the matter be dismissed.”
The State in its answer to the petition said the court has no jurisdiction to determine the petition in the absence of any challenge of the nomination of the successful candidates for Kwacha and Kabushi constituencies, in line with Article 52(4) of the Constitution.
It said the High Court has no jurisdiction to interpret the Constitution in relation to Article 128(1)(a) and that petitioners are not entitled to the reliefs sought.
The State said an administrative decision of a public body such as ECZ cannot be challenged by way of petition but by way of judicial review.
“This action is an abuse of court process by reason of duplicity as the issues canvased in the petition are similar to those brought before the Constitutional Court which are founded on constitutional interpretation,” the State said. “This is a proper case to dismiss with costs to the respondent for want of jurisdiction.”
In an affidavit in support of answer to the petition, Solicitor General Marshal Muchende said the nominations of the successful candidates for the two constituencies held on August 25, 2022 have not been challenged and the petitioners are inviting the court to interpret the Constitution.
He said Malanji did not demonstrate in the High Court and Constitutional Court that he possessed a grade 12 certificate, resulting in the nullification of his election.
Muchende added that the petitioners have not demonstrated that they are eligible to re-contest.
And in an affidavit in opposition to affidavit in support of summons for leave to suspend by-elections, Muchende said the petition has no prospects of success.
“The petitioners will not be prejudiced if the stay is not granted as they will be able to know their fate before September 15,” submitted Muchende.