By Peter Sinkamba
One of the mind-boggling constitutional question that was raised by some ‘Table 9 scholars’ at some famous waterloo in Kitwe is whether a court has power to disqualify a presidential candidate or vice presidential candidate after having being declared duly nominated by the Returning Officer in accordance with Article 52 of the Constitution of Zambia Amendment 2016.
This question was raised by “Table 9 scholars” consideting that Article 52(6) of the said Constitution Amendment provides as follows:
“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.”
A careful perusal of Article 52(6) above literally shows that after close of nominations, the power of the court to disqualify a candidate is limited to cases of corruption or malpractice by the candidate, and nothing else.
Article 70 applies to Members of Parliament. By virtue of Article 110(2), the implication is that Article 100 applies to both the presidential candidate and vice presidential candidate. Article 153 concerns councillors, mayors and council chair persons.
In view of the foregoing, according to Article 100(2), a person is disqualified from being nominated as a president or vice president if that person:
a) is a public officer
b) has dual citizenship
c) is holding or acting in a Constitutional office or other public office
d) is a judge or judicial officer
e)was removed from public office on grounds of gross misconduct in the immediate preceding five years
f) has a mental or physical disability that would make the person incapable of performing the executive functions
g) is an Undischarged bankrupt
h) has, in the immediate preceding five years served a term of imprisonment of at least three years.
A careful perusal of Articles 100(2)(a)-(h) and 52(6) above clearly shows that the said provisions literally do not grant power to a court to disqualify a presidential or vice presidential candidate who has been declared duly nominated in accordance with Article 52.
Although Article 52(4) provides that a person may challenge a nomination in a court or tribunal, that power granted to the court by the Constitution is only limited to HEARING the petition. Literally speaking, Article 52(4) does not grant power to the court or tribunal to DETERMINE a petition after hearing it, as can be clearly noted from Article 52(4) which provides as follow:
” A person may challenge, before a court or tribunal, as prescribed, the nomination of a candidate within seven days of the close of nomination and the court shall HEAR the case within twenty one days of its lodgment.”
There is no determination that has been provided by the Constitution in the above cited Article. Literally speaking, there is a big difference between hearing a matter, and determining a matter. Just like literally, there is a difference between “twice held office” and “term of office”.
After an elaborate discussion, Table 9 scholars concluded that if courts or tribunals delegated to hear nomination petitions decide to use literal interpretation of the Constitution, then it will be discovered that those courts or tribunals have no power to disqualify a presidential or vice presidential candidate who has been declared as duly nominated by the Returning Officer, in this case, the Chair Person of ECZ, unless the complaint or petition SPECIFICALLY relates to CORRUPTION or MALPRACTICE by the candidate.