Emily Sikazwe sues state over HH’s decision to “prematurely” fire her from ECZ

13th September 2022

Courts

Former ECZ chairperson Esau Chulu with his vice Dr Emily Sikazwe during the presidential filing in of nomination paper at Mulungushi International Conference Center in Lusaka on May 18, 2021 – Picture by Tenson Mkhala

Courts

Former ECZ chairperson Esau Chulu with his vice Dr Emily Sikazwe during the presidential filing in of nomination paper at Mulungushi International Conference Center in Lusaka on May 18, 2021 – Picture by Tenson Mkhala

FORMER Electoral Commission of Zambia (ECZ) vice chairperson Emily Sikazwe has petitioned the Constitutional Court seeking an order that President Hakainde Hichilema’s decision to “prematurely” terminate her employment is null and void and devoid of merit.

Sikazwe argues that her tenure of office was up to October 5, 2027.

In June this year, President Hichilema notified then ECZ Chairperson Justice Essau Chulu and his Vice, Sikazwe, of the expiration of their contracts and non-renewal of tenure.

In a statement, Presidential Spokesperson Anthony Bwalya said the President made the decision in exercise of the power vested in him under Section 4 (3) of the Electoral Commission (Amendment) Act No. 5 of 2019.

But Sikazwe, who has cited the Attorney General as the respondent in her petition, wants an order that the President contravened Articles 216 and 242 of the Constitution chapter 1 of the Laws of Zambia as read with sections 5 (3) and 6 (1) of act no.25 of 2016 as amended by act no.5 of 2019 of the Electoral Commission Act.

She is further demanding damages against the state for misfeasance in public Office and an order that costs for this cause be borne by the respondent.

Sikazwe submitted that her tenure of office was to run from October 6, 2020 to October 5, 2027.

“I was appointed commissioner of ECZ from June 17, 2015 to June 17, 2022, which appointment was ratified by Parliament on June 17, 2015. On June 16, 2020, the petitioner (Sikazwe) was appointed by former president [Edgar] Lungu to the position of vice chairperson of ECZ, which appointment was ratified by Parliament on September 30, 2020. In consequence of the above, the petitioner entered into a contract of employment dated October 7, 2020 made between herself and ECZ. That by clause 2.0 of the said contract, the petitioner’s tenure of office was to run from October 6, 2020 to October 5, 2027,” she stated.

Sikazwe argued that by pre-maturely terminating her contract of employment, the President contravened the Constitution and various articles of international electoral bodies that Zambia was prescribed to.

“In contravention of the petitioner’s contract of employment, your petitioner shall aver that the current President through a letter dated June 7, 2022 and referenced “Notice of non-renewal of your contract as ECZ vice-chairperson” notified the petitioner that her appointment which was allegedly expiring on June 17, 2022 would not be renewed for another term and directed her to immediately proceed on leave. The President has breached the legal provisions of the Grand Law of the land at article 216 and article 242 as well as section 5 (3) and 6 (1) of act no. 25 of 2016 as amended by Act no. 5 of 2019 of the Electoral Commission Act as it shows a clear indication by the President to replace the rule of law with the rule of man,” she stated.

“The said actions are also in contravention of the articles of international Electoral bodies that Zambia is prescribed to such as the Association of World Election Bodies (AWEB), the International Institute for Democracy and Electoral Assistance (IDEA), the Electoral Institute for Sustainable Democracy in Africa and the Electoral Commissions Forum of SADC Countries (ECF- SADC). That in addition, the President’s actions were frivolous, vexatious and raised important Constitutional questions.”

Sikazwe further submitted that the President’s action had raised Constitution questions on whether the independence of the ECZ had been maintained as envisaged by article 216 of the Constitution.

“The Constitutional questions raised by the President’s action are; Whether the independence of the ECZ has been maintained as envisaged by article 216 of the Constitution. Whether the President has unfettered powers extending to sending officers of the ECZ on leave. Whether Presidential interference in the running and term of office of ECZ breaches article 92(1) of the Constitution which requires the President to perform his functions with dignity, leadership and integrity. Whether the President’s interference with the workings of ECZ negates the promotion of conditions conducive to free, fair, credible and transparent elections or conversely raises an act of intimidation on the ECZ being independent and not fear or favour of the President. Whether the President can override clear provisions in the Constitution such as article 242 of the Constitution as read with section 5(3) of Act no.25 of 2019 on term of Office,” said Sikazwe.