ConCourt has jurisdiction to hear my petition, submits Lundazi Central losing candidate

Losing Lundazi Central independent candidate Bizwayo Nkunika has submitted that the Constitutional Court has jurisdiction to determine his petition in which he wants it to declare the Lundazi Central parliamentary seat vacant, alleging that the current lawmaker has no full grade 12 certificate.

Nkunika argued that he was not petitioning the election of the current member of parliament, Lawrence Nyirenda but, his alleged breach of the Constitution.

However, Nyirenda and the Electoral Commission of Zambia (ECZ) have insisted that the Court should dismiss the matter, arguing that it was before the wrong court as it could only be brought to the Court on Appeal.

In this matter, Nkunika had petitioned the ConCourt to declare the parliamentary seat vacant, alleging that the current Independent member of parliament did not hold a full grade 12 certificate.

Nkunika cited Nyirenda and ECZ as first and second respondents, respectively, 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 the ECZ should hold elections within 90 days.

However, when the matter came up before ConCourt judges Hildah Chibomba, Anna Sitali, Mungeni Mulenga, Palan Mulonda and Martin Musaluke, Wednesday, Nyirenda argued through his lawyer Tutwa Ngulube that the Court should not entertain Nkunika’s petition as the time-frame in which he should have petitioned the elections, had elapsed.

He submitted that Nkunika’s petition was statute-barred as the Constitution sets a time limitation as to when a petitioner could petition the election, which was seven days after.

Ngulube further argued that the ConCourt 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 ConCourt on appeal.

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

She submitted that Article 73 of the Constitution was clear in that the High Court was the court of first instance in election petitions involving members of parliament, councilors and mayors.

Lungu added 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.

“This petition is before the wrong court in terms of the court of first instance. It should have been brought to this court as an appeal. We pray that this court dismiss this matter with costs,” she submitted.

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

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

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

“This is mot a parliamentary election petition because if it was, we would have complied with the time limit as prescribed in the Constitution. This is a constitutional petition where we are alleging a breach of the Constitution and there is no time limitation provided for in the Constitution because some of the alleged breaches are continuing breaches unless the court makes a decision,” said Banda.

But in response, Ngulube argued that the petition was an election petition because it had a prayer of declaring the seat vacant and holding a fresh election within 90 days, and that Banda was contradicting himself in the matter.

The court has reserved the ruling to a date to be announced.

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