Opposition party sues AG over flawed 2016 presidential nominations

The Movement for Change and Equality party has dragged the Attorney General and Electoral Commission of Zambia (ECZ) to the Constitutional Court, seeking a declaration that the conducting of the 2016 Presidential nominations without an enabling legislation and regulations was illegal as it contravened different articles of the Constitution.

Peter Mutondo Kachama, suing as deputy secretary general of the said party has argued that the 2016 Presidential nominations were conducted without the prescribed laws and regulations and that there were no prescribed forms for the Vice Presidents as running mates.

Kachama who has cited the Attorney General and ECZ Chairperson as respondents, wants the court to grant him an order (of mandamus) that the petition be allowed and further, any other remedy that it may deem just and necessary for the sake of defending the Constitution from its illegal contravention and abrogation.

He also wants costs occasioned by the petition to be born by the respondents.

In a petition filed in the Constitutional Court, October 17, Kachama explained that Movement for Change and Equality was a political party registered under section 7 of the Societies Act Chapter 119 of the Laws of Zambia.

He stated that on August 11, 2016, Zambia held elections for the Presidency, National Assembly, councillors and mayors.

Kachama added that concurrently, a referendum was held on whether to enhance the bill of rights in the Constitution of Zambia.

He stated that the Presidential nominations for the 2016 general elections were held from May 27, 2016 to June 3, 2016 before the Electoral process Act number 35 of 2016 was enacted and assented to on June 6, 2016.

Kachama further stated that the Constitution of Zambia was amended and assented to on January 5, 2016 just a few months before the election, and further changes to the Electoral Process Act were enacted in June 2016.

He stated that before the enactment of the Electoral Process Act no 35 of 2016, the enabling legislation at the time was the Electoral Act of 2006 and the Electoral Act Regulations (Act No 12 of 2006) (Code of conduct) – Statutory Instrument No 90 of 2006 were in place.

Kachama stated that the Electoral Commission Act no 25 of 2016 was enacted on June 7, 2016 after the Presidential nominations were closed on June 3, 2016, but added that the functions as relates to the duties of the returning officer were not prescribed in the Act.

“The petitioner derives the right to seek legal redress if any of provisions provided under Article 28 of the Constitution of Zambia are contravened or violated,” he stated.

Kachama stated that the Attorney General failed to advice government on the enactment of the electoral process laws on the systems of conduct and administration of elections pursuant to Article 177 (5) in the 2016 Presidential nominations.

“The subject matters of the petition…The decision by ECZ to conduct the Presidential nominations devoid of a standing law as provided for in the Constitution of Zambia (amendment Act no 2 of 2016). And the decision by ECZ to proceed in conducting the nominations without the prescribed laws for the office of the vice-president as a running mate,” the petitioner stated.

Kachama stated that in support of the petition, he relied upon Articles 48, 49 and 52 of the Constitution.

He argued that the decision by ECZ to have conducted the Presidential nominations between May 27 and June 3, 2016 using the repelled Electoral Act of 2006 was unconstitutional, illegal and irregular.

Kachama also contended that ECZ failed to ensure that the procedural requirements for Presidential candidates were put in place as required under Article 52 (2) of the Constitution of Zambia (amendment) Act No 2 of 2016.

“The petitioner contends that ECZ published the information of Presidential candidates which it purported to have been duly nominated using forms which were not prescribed as the regulations were not in place at the time of the said nominations contrary to the procedural requirement as provided for under Article 52(3) as; the information contained in a nomination paper and affidavit shall be published by the ECZ as prescribed,” he stated.

And in an affidavit in support of the petition, Kachama argued that the 2016 Presidential nominations were conducted without the prescribed laws and regulations and that there were no prescribed forms for the Vice Presidents as running mates.

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