THE Constitutional Court has in its majority judgement ruled that Lundazi Central independent member of parliament Lawrence Nyirenda and the Electoral Commission of Zambia (ECZ) did not breach the Constitution when the commission allowed Nyirenda to contest the 2016 parliamentary election.

Nyirenda therefore, remains the member of parliament for Lundazi Central constituency.

However, Constitutional Court president Hildah Chibomba and judge Palan Mulonda had different opinions.

In their dissenting judgments, justices Chibomba and Mulonda said Nyirenda was supposed to be disqualified from contesting the 2016 parliamentary elections as he did not have the requisite academic qualifications and also contravened Article 70(1)(d) of the Constitution.

Judge Mulonda said he would have ordered that Nyirenda should not have continued to sit as a member of parliament as this goes against Article 70 (1)(d) of the Constitution.

In this matter, losing Lundazi Central independent candidate Colonel Bizwayo Nkunika petitioned the ConCourt to declare the Lundazi Central parliamentary seat vacant, alleging that Nyirenda did not hold a full Grade 12 certificate.

Nkunika cited Nyirenda and ECZ as first and second respondents, 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 wanted the court to declare the seat vacant and that ECZ should hold elections within 90 days.

But in a majority judgement delivered by Constitutional Court Judges Martin Musaluke, Annie Sitali and Mungeni Mulenga, Tuesday, the court ruled that Nyirenda and ECZ did not breach Article 70 (1)(d) of the Constitution.

Judge Musaluke who delivered the majority judgement on behalf of the others, said the court could not disregard the central role which the judgment of the Sibongile Zulu case in the High Court played in the 2016 elections regarding the interpretation of what constituted a grade 12 certificate.

He said Nkunika’s claims regarding the contravention of Article 70(1) (d) fails and is dismissed.

“The first and second defendants did not contravene Article 70(1)(d) of constitution as regards to the first defendant’s nomination and subsequent election based on the prevailing interpretation of Article 70 at that time,” Judge Musaluke said.

The court however cautioned ECZ against giving provisional nominations papers to candidates whose qualifications were still being validated as the same was unconstitutional and should never happen again.

But in her dissenting judgement, judge Chibomba said according to her analysis of the evidence, she did not agree with the conclusion that Nyirenda and ECZ did not contravene article 70 of the Constitution but that despite him having no qualifications, he was allowed to contest the position which ended in him holding the position of member of parliament illegally.

She said in her view, Nyirenda and ECZ contravened Article 70 (1)(d) of the Constitution on grounds that the certificates Nyirenda produced during his nomination were not equivalent to a grade 12 certificate.

Judge Chibomba said she would have ordered that since Nyirenda did not meet the requirements of Article 70 (1)(d) of the Constitution, his nomination and election and continued holding of office as a member of parliament was contrary to the said Article and should be disqualified from continuing to hold office.

And judge Mulonda said Nyirenda should not have been allowed to contest because he was not in possession of academic qualifications.

He added that Nyirenda should not be allowed to continue holding the seat as his election was unconstitutional.