CONSTITUTIONAL lawyer John Sangwa says the Constitutional Court judgement which clarified what constitutes a grade 12 certificate or equivalent for those seeking public office has come at the right time.
Sangwa, however, says he agrees with the minority judgement which found that anyone who is currently serving as a member of parliament but does not meet this requirement is breaching the Constitution.
Speaking on Diamond TV’s “Live Monday Menu” programme, Sangwa said the judgment had given life to the Constitution, adding that there was need for sharp returning officers who could outrightly reject unqualified candidates during nomination.
“Let me start by commending state Counsel Chifumu Banda who took up the matter to the Constitutional Court. I think we need to have more cases like this because through these cases we are able to give life and meaning to the Constitution. When we don’t challenge, we don’t make use of the Constitution, it is a dead document, it means nothing until we make use of it. I also want to commend the Constitutional Court on the initiative that they took in settling this issue of grade 12 certificate. If you read through the judgement, one of the things that the court did was to subpoena expert witnesses. One of the expert witnesses was the director general and the CEO of the Examination Council of Zambia who went to court to explain what grade 12 certificate means. If you recall, there was an earlier case which was decided by the High Court. That case I think it should be Sibongile Zulu or something like that, I can’t remember the full name but in that case the High Court was not very specific. It more less gave leeway to the ECZ to be able to determine what would amount to an equivalent grade 12 certificate. So that gave a little confusion, the rules were relaxed,” Sangwa said.
“I think certain people who do not have qualifications are currently members of the assembly when they shouldn’t. But the Constitutional Court decided there is need to address this particular issue once and for all. And they called the experts. According to the experts, they have given a very categorical definite definition of what grade 12 certificate means. Now the starting point is this, anybody who wants to stand as a member of parliament amongst other requirements is that he must have a grade 12 certificate. The law says grade 12 it does not say degree, it simply says grade 12 or equivalent. A degree cannot be an equivalent of a grade 12 certificate. The Constitutional Court has gone on further to define what an equivalent is. This was the problem that was created by the previous judgement because people were bringing changanya (all sorts of) qualifications as equivalent and that created problems. Now the law is clear. The equivalent in Zambia is either you have your Cambridge certificate which was being issued before 1983 or you have your GCE certificate. That GCE you should have obtained the courses equivalent to those that are given in a school certificate.”
Sangwa said there was need to appoint returning officers that understood the Constitution in order not to repeat the mistake.
“You can’t begin to interpret and bring in your own style. This is what created the problem in Lundazi. First of all, the respondent in this case, his name is Lawrence Nyirenda. What happened in this other than just clarifying the requirement of grade 12, the court also clarified on the function of ECZ and the returning officer. Now the returning officer here made a mistake because the returning officer only looked at these papers, he saw that the person did not have the grade 12 certificate or equivalent, what should have happened is that the returning officer should have rejected the nomination papers of this candidate. Instead what the returning officer did was to admit it provisionally,” Sangwa said.
“Now, there is no provision in the Constitution to accept the nomination papers on a provision basis. It is either you have met the requirements or you haven’t met the requirements. It is for the returning officer who is on the ground to make such a determination. That is why in the next election it is just not a question of sending every Jim and Jack as a returning officer, you also have to make sure that the people that you send as returning officers are sound people, and will be able to enforce the requirement. So ordinarily, that seat should have been declared vacant. That election should have been nullified but whether it was going to bring some inconvenience or not that is totally inconsequential. The obligation is for us to respect the black letter of the Constitution.”
He said the judgement had come at a right time.
“The law always has to be approached with a bit of humility. But when you are arrogant believing that you are right, this is where the problem is. If people have already spent money and everything, I have heard that other people are already front runners without checking whether they have grade 12 certificates or not, so whatever they have dumped in, that is their loss. That is why this particular judgement is commendable. it has come at a right time before people have even finalised their nominations so that these things are corrected. At least now we can avoid many petitions after the elections or even filling the nominations,” Sangwa said.
“We could have also avoided this if at all state counsel Chifumu Banda had actually challenged the nomination papers after the nominations were filed, we would have avoided this particular issue. A petition should have been done within seven days of the nominations that would have greatly helped. At least those who have already spent money, they can just write off that but at least they have been saved from spending money. We should be proud of what is happening as a country because what we are doing is that we are now trying to give life to the Constitution, at least give it meaning so that we are guided. So the timing of the judgement is very good and I am quite happy with what the Constitutional Court did.”
But Sangwa said he agreed with the minority judgement.
“There were five judges, all the five judges have agreed what the meaning of grade 12 is, it is a school certificate. They were all agreed that this gentleman did not have the necessary qualifications. But they differed on the implications of the fact that the gentleman did not have this certificate. The majority of the judges took the view that there was an earlier case which provided some kind of guidance to suggest that some other qualifications could actually be put together which can pass the equivalent. That judgment is actually a wrong judgement, it has been overturned. That judgement was a judgment of the High Court. In that judgement the High Court, [it] gave more power to ECZ to determine whether this amounts to the equivalent or not. The majority took the view that the candidate followed the law as laid down by the High Court. So, for that reason, he should not be penalised. Therefore their definition of grade 12, the clarity should not be applied retrospectively. It should now take effect from the date of pronouncement going forward. First of all, a position I don’t agree with anyway. The other judges who were in the minority said no, first of all, the judgement of the High Court is not bidding on the Constitutional Court,” Sangwa said.
“This man who is an MP even today as he sits in the National Assembly, he has no qualifications. His continued presence in the National Assembly amounts to breach of the Constitution. Therefore, the correct course of action should have been to declare that seat vacant and call for fresh elections. That was the position taken by the minority whereas the majority took the view to say no we can not use the interpretation of grade 12 certificate retrospectively because if we do that, then this person will be disadvantaged because he followed the law that was there before that pronouncement. But again, that is wrong, I don’t agree with that but that is the position of the majority and the majority carried the day. I agree with the position of the minority to say as long as there is a finding that this gentleman does not have a grade 12 certificate or equivalent, he has no place in the National Assembly. He should be actually be removed and a fresh election must be held for Lundazi Constituency.”
Sangwa said the current education system had collapsed.
“We are all agreed that there is a general collapse of education in this country. It is a fact! You get somebody with a grade 12 certificate then and compare to who has a certificate now, I mean it is like day and night. When there is a general collapse in your general education system and many other things in the country what do you expect? You can only work with what you have,” said Sangwa.