ECZ asks Concourt not to entertain Nkunika’s electoral petition

By Staff Reporter

THE Electoral Commission of Zambia (ECZ) has urged the Constitutional Court not to entertain the case where 2016 losing Lundazi parliamentary candidate Bizwayo Nkunika wants the election of area member of parliament to be nullified on allegations that the former does not have a grade  12 certificate.

Nkunika petitioned the election of Lawrence Nyirenda as Lundazi member of parliament on ground that he did not have the minimum academic qualifications as prescribed under Article 70 (1) (d) of the Constitution of Zambia.

Nkunika, who also cited the ECZ, in a petition filed last year, is further seeking an order to compel the ECZ to hold elections in Lundazi within 90 days.

But ECZ has urged the Concourt to dismiss the petition, saying hearing it would be elevating a parliamentary election petition to the level of Presidential election petition.

The ECZ has argued that if the court goes ahead to hear the election petition, it would effectively elevate a parliamentary election to a level of Presidential petition which the Constitution has given exclusive jurisdiction to the Constitutional Court as a court of first instance.

The electoral body stated that the Lundazi election petition was supposed to be heard by the High Court and not the Concourt.

The ECZ added that the Constitution dictates that a parliamentary election was supposed to be first heard by the High Court to leave room for one to appeal to the Constitutional Court in an event they were not satisfied  with the decision of the High Court.

ECZ in its skeleton arguments filed in court, stated further that matters relating to the election of members of parliament and councilors, the Constitutional Court could only entertain such matters on appeal as provided for under Article 128 (1)(d)  of the Constitution.

The ECZ also submitted that Article 73 of the Constitution prescribes the High Court as a court of first instance and the Constitutional Court as an appellate court for challenging an election of an MP.

“Given that parliamentary petitions are  preserve of the high court, it would follow that it would be a violation of the Constitution to allow the constitutional court to handle a parliamentary petition as a first instance court,” ECZ submitted.

The ECZ also argued  that if a parliamentary petition was entertained by the Concourt, there is bound to be prejudice to a dissatisfied petitioner who may wish to pursue his or her petition to its logical conclusion.

The electoral body added that  Nkunika has not demonstrated any special reasons why a parliamentary election in which he participated should not be subjected to the procedures that govern election petition in the Zambian legal system.

It further stated that the fact that  Nkunika had an opportunity to challenge both the nomination process and election outcome should no doubt work against him and does not entitle him to earn sympathy.

The ECZ stated that Nkunika should be told in no uncertain terms that courts cannot be swayed by sympathy into making moral judgment.

The ECZ claimed that the petition was a veiled attempt to circumvent the Constitution and the electoral process act and should therefore, not be entertained as it is also  way out of the prescribed