The Electoral Commission of Zambia (ECZ) has asked the Constitutional Court not to entertain the Lundazi parliamentary election petition, saying it is not only out of the prescribed time, but also a veiled attempt to circumvent the Constitution and Electoral Process Act.
And the ECZ says the petition should be heard by the High Court and not Constitutional Court.
In this matter, Lundazi Central losing Independent candidate Bizwayo Nkunika has petitioned the Constitutional Court to declare the Lundazi Central parliamentary seat vacant, alleging that Lawrence Nyirenda, the current Independent member of parliament, does not hold a full Grade 12 certificate.
Nkunika cited Nyirenda and ECZ as first and second respondents, respectively, stating that the ECZ contravened article 70 and 72 of the Constitution when it allowed Nyirenda to contest the Lundazi Central seat without meeting the minimum qualifications.
However, in its skeleton arguments filed on June 24, ECZ submitted that allowing Nkunika’s petition would effectively elevate a parliamentary petition to the level of a Presidential petition, which the Constitution had given exclusive jurisdiction to the Constitutional Court as a court of first instance as per Article 128(1)(c).
It further submitted that for matters relating to elections of members of parliament and councillors, the Constitutional Court could only entertain such matters on appeal as provided for under Article 128 (1)(d).
“Given that parliamentary petitions are a preserve of the High Court, it would be a violation of the Constitution to allow the Constitutional Court to handle a parliamentary petition as a first instance court. We, therefore, submit that if a parliamentary petition was entertained by this court, there is bound to be prejudice to a dissatisfied petitioner who may wish to pursue his or her petition to its logical conclusion,” ECZ argued.
It further argued that Nkunika had not demonstrated any special reasons why a parliamentary election in which he himself participated, should not be subjected to the procedures that governed election petitions in the legal system.
“The fact that Nkunika had an opportunity to challenge both the nomination process and the election outcome should no doubt work against him and does not entitle him to any sympathy. He should be told in no uncertain terms that courts cannot be swayed by sympathy into making moral judgements as ably outlined by the Supreme Court,” ECZ submitted.
It further submitted that the petition was a veiled attempt to circumvent the Constitution and Electoral Process Act, which should not be entertained.
ECZ added that Nkunika’s petition was out of the prescribed time and should be heard by the High Court, not the Constitution Court.
It prayed that the Court dismissed the petition with costs.
“Assuming that there is anything wrong with the election of the first respondent (Nyirenda), we submit that such a matter should be heard by the High Court and not this court as per the dictates of the Constitution. In the premises we humbly pray that this Court dismisses this petition with costs,” submitted ECZ.