THE Constitutional Court has ruled that the Constitution does not provide for rescission of a councillor’s notice of resignation before the lapse of the notice period of 30 days.
The ruling was passed in response to Isaac Mwanza, a governance activist who asked the Court to interpret whether Article 157 (2) (b) provides for rescission of a councillor’s notice of resignation before the lapse of (i) thirty (30) days; Whether a unilateral notice to rescind a valid resignation by a councillor for reasons accepted or not accepted by the Mayor or Council Chairperson, would necessitate or prevent the holding of a by – election in accordance with (ii) Article 57 of the Constitution; and Whether a by- election for purposes of Articles 57, 157 (2) (b) and 158 (1) held after a councillor unilaterally rescinds his or her resignation within 30 days, would be valid for all intents.
In delivering the ruling, Justice Palan Mulonda stated that given that the constitution does not provide for the rescinding of a councillors resignation, the second and third questions fell off.
“As Article 157(2)(b) of the Constitution does not provide for rescission of a councillor’s notice of resignation before the lapse of the notice period of 30 days, the second and third questions put to us become otiose.  As the matter raised important constitutional questions, we order that each of the parties bears their own costs,” read the judgement.
Facts leading to the action were that on March 6, 2018, the councillor for Chilongozi Ward in Sinda District of the Eastern Province of Zambia resigned from his position as councillor and later retracted his resignation by a letter dated March 13, 2018.
Mwanza, following this development, wrote to the Council Chairperson of Sinda District opposing the unilateral withdrawal of the notice of resignation which was followed by a letter from the Sinda Council Chairperson to the Chilongozi Ward councillor rejecting the rescission of resignation on account that the Constitution does not provide for withdrawal or retraction of a notice of resignation and a by-election was held in the area.
Under similar circumstances, the councillor for Munyambala Ward of Mumfumbwe District in North Western Province of Zambia resigned his position on December 27, 2019 but later rescinded his decision and withdrew the notice of resignation on January 13, 2020.
Mwanza, in his submissions, stated that the moving of the Court to give an interpretation of Article 157(2) (b) of the Constitution is due to the inconsistencies exhibited in interpreting the above article by the Electoral Commission of Zambia and the concerned local authorities.
Further, Mwanza requested the Court to determine whether a by-election, for purposes of Articles 57, 157 (2) (b) and158 (1) held after a councillor unilaterally rescinds his or her resignation within 30 days, would be valid for all intents and purposes as he argued that Article 157(2)(b) of the Constitution did not provide for the retraction of a notice of resignation, either unilaterally or otherwise by a councillor.
In their arguments, the ECZ submitted that there was no provision in the Constitution that restricted a mayor or council chairperson from accepting or declining to accept a rescission or withdrawal of a notice of resignation adding that the law was silent on whether a councillor who has tendered in a resignation can retract it during the 30 day notice period.
The ECZ then submitted that the action before the court was timely and joined Mwanza in seeking interpretation noting that the lacuna in Article 157 (2) (b) of the Constitution on retraction or withdrawal of a notice of resignation possesses practical challenges in the application of the provision.
In concluding its submissions, the Attorney General took the view that the Constitution did not provide for the rescission of a resignation by a councillor as the office becomes vacant at the point a councillor resigns by one month’s notice in writing adding that the act of rescission would set off the other provisions of the Constitution which immediately become effective.
The Attorney general further submitted that a councillor does not have the right to unilaterally withdraw a notice of resignation once tendered and therefore a by-election held following a resignation would not be invalidated by a retraction of a notice of resignation.
In passing judgement, the Court stated that a resigning councillor had no option of rescinding their resignation after the letter of resignation was tendered to the mayor or council chairperson.
“An examination of Articles 157 and 158 of the Constitution reveals that no option is given to the resigning councillor to rescind their decision to resign after the letter of resignation is tendered to the mayor or council chairperson, as the case may be. Similarly, no power to accept a rescission of a resignation is given to a mayor or council chairperson of a local authority. The rescission of a councillor’s decision to resign is a substantive issue and in the absence of express provision being made in the Constitution to that effect, we hold that a councillor has no option to rescind the decision to resign within the notice period. It is our view that if the intention of the framers of the Constitution was to allow a councillor who had resigned from office to rescind their decision within the 30 day period, they would have made express provision to that effect in the Constitution. This they did not do. This answers the first question,” read the judgement in part.
The court also refused Mwanza’s argument that allowing the notice period to run would elongate the timeframe within which a by-election must be held within the context of Article 57 of the Constitution because their understanding of Article 57 is that the 90 day period within which to hold a by-election begins to run from the time the office of councillor becomes vacant stating that the vacancy occurs at the end of the notice period being 30 days after the notice of resignation is tendered in with the relevant authority.