THE Constitutional Court has declared that Christopher Chibuye was duly elected as PF member of parliament for Mkushi North.

Constitutional Court judges; Anne Sitali, Mungeni Mulenga, Palan Mulonda, Professor Margaret Munalula and Martin Musaluke have therefore set aside the High Court’s decision to nullify Chibuye’s election.

Chibuye had appealed to the Constitutional Court against the High Court’s decision to nullify his seat.

This was after UPND’s losing candidate Topson Kunda petitioned the seat, alleging electoral malpractices.

Kunda alleged that Chibuye engaged in electoral malpractices such as the use of government institutions for his campaigns and that he continued getting his salary at the time he was contesting the election as he was deputy Permanent Secretary for Luapula Province.

But one of Chibuye’s lawyers, Bonaventure Mutale State Counsel argued during the appeal hearing before the Constitutional Court that Cabinet Office Circular number 12 of 2020 had no legal effect and the Secretary to Cabinet did not have authority to perform a legislative function such as issuing the Statutory Instrument.

Cabinet Office Circular 12 of 2020 stated that all public officers, including those serving in foreign missions intending to participate in 2021 general elections, were directed to resign from public office not later than November 30, 2020.

However, in the judgment delivered yesterday, judge Musaluke said Chibuye did in fact resign from his position as deputy Permanent Secretary for Luapula Province on April 30, 2021, to seek election as MP for Mkushi North.

The court said there was no breach of the Constitution when Chibuye filed his nomination papers for election as MP as he was not a public officer at that time.

The Constitutional Court found that the trial judge erred in law and fact when it nullified the election of Chibuye based on Cabinet Office Circular No.12.

Judge Musaluke added that the trial judge misdirected itself by relying on the Cabinet Office circular.

“In our view, the contents of Cabinet Office Circular No.12 of 2020 by providing a time frame within which to resign for public officers seeking election in the 2021 general elections, were in direct conflict with Article 186(1) of the Constitution. In view of what we have stated above, the learned trial judge erred in law and fact when he nullified the appellant’s election based on Cabinet Office Circular No.12 of 2020,” the court said.

Meanwhile, the court dismissed the allegation that Chibuye used government institutions for campaigns as it was not pleaded in the petition.

The court also threw out Kunda’s cross appeal for lack of merit.

“Since the appellant’s appeal has succeeded, we set aside the order for costs made by the learned trial judge in the court below. As the appellant’s appeal has succeeded in two of the three substantive grounds he raised. The appeal succeeds. We set aside the lower court’s decision to nullify the election and declare that the appellant, Christopher Chibuye, was duly elected as member of parliament for Mkushi North,” declared the Constitutional Court.