The Constitutional Court has ruled that it will proceed to hear a matter where a Lundazi Central losing candidate has petitioned it to declare the parliamentary seat vacant, on allegations that the current member of parliament doesn’t have a full Grade 12 certificate.

The Court has further ruled that the petition is rightfully before it because it alleges contravention of Articles 70 (1) (d) and 72 (2)(b) of the Constitution.

In this matter, Lundazi Central losing Independent candidate Bizwayo Nkunika has petitioned the Constitutional Court to declare the parliamentary seat vacant, alleging that the current Independent member of parliament Lawrence Nyirenda, does not hold a full Grade 12 certificate.

Nkunika cited Nyirenda and the Electoral Commission of Zambia (ECZ) as first and second respondents, stating that ECZ contravened article 70 and 72 of the Constitution when it allowed Nyirenda to contest the Lundazi Central seat without meeting the minimum qualifications.

He wants the Court to declare the seat vacant and that ECZ should hold elections within 90 days.

But Nyirenda, through his lawyer Tutwa Ngulube, raised a preliminary issue and urged the Court not to entertain Nkunika’s petition on grounds that the time frame had elapsed in which he should have petitioned the elections.

Ngulube further argued that the Constitutional Court had no jurisdiction to hear the petition as it was the High Court that had first instance in matters relating to parliamentary elections, adding that matters relating to the elections of members of parliament could only be taken to the Constitutional Court on appeal.

And ECZ in-house lawyer Theresa Lungu equally argued that the petition had been brought out of time.

Lungu had argued that the ConCourt only had jurisdiction as Court of first instance in Presidential election petitions and that other election petitions were only brought to the said court on appeal.

However, Nkunika’s lawyer, Chifumu Banda, argued that the ConsCourt had jurisdiction to hear the petition because it had nothing to do with the election of Nyirenda, but the breach of the Constitution.

He said Nkunika was not challenging Nyirenda’s election, but the allegation that he was sitting in the House illegally because he did not have the required academic qualifications.

Banda said it was the ConCourt which had powers to hear and determine any matter that contravened the Constitution.

And in a ruling delivered by Judge Martin Musaluke on behalf of Constitutional Court president Hildah Chibomba and justices Annie Sitali, Mungeni Mulenga and Palan Mulonda, the Court stated that any allegations of the contravention of the Constitution brought before the Constitutional Court must be fully interrogated.

“As the petitioner has specifically alleged that the first and second respondents have contravened and continue to contravene Articles 70 (1) (d) and 72 (2) (b) of the Constitution, these allegations ought to be heard and determined by this court on their merit. We observe that the arguments by the respondents in this motion can, in fact, comprehensively be raised in their respective answer and submissions to the petition,” said Justice Musaluke.

“Accordingly, we find that the petition herein is rightfully before this court as it alleges contravention of Articles 70 (1) (d) and 72 (2) (b) of Constitution.”

The Court consequently dismissed the preliminary issue raised by Nyirenda and ordered that the matter will proceed to trial on March 9, 2020.

Justice Musaluke further granted Nyirenda and ECZ liberty to appeal before March 9, next year