LUNDAZI independent member of parliament Lawrence Nyirenda has submitted that the Constitutional Court has no jurisdiction to determine a petition filed by losing candidate Bizwayo Nkunika who wants the court to declare his election null and void. Nyirenda has urged the court to dismiss the petition with costs because it was brought outside the stipulated time and also that it was before a wrong court. Nkunika petitioned the court to nullify the election of Nyirenda because he does not have the minimum academic qualifications as prescribed under Article 70 (1) (d) of the Constitution of Zambia.
He alleged that Nyirenda does not hold a minimum of grade 12 certificate. Nkunika was also seeking an order to compel the Electoral Commission of Zambia (ECZ), who have been cited as second respondents, to hold elections in Lundazi within 90 days. But Nyirenda has raised preliminary issues in the matter. He wants the court to determine whether the petition was statute barred having been filed outside the constitutional limitation period provided under Articles 52 (4) of the Republican Constitution.
He also wants the court to determine whether the election petition had been filed in a wrong court contrary to Article 73 (1) of the Constitution, among others. Nyirenda stated that the law was very clear in that the Constitution itself had prescribed the timeframe within which such challenge could be brought. He submitted that Nkunika was a candidate in the elections, which were held on August 11, 2016 and that they were nominated at the same time. Nyirenda stated that Nkunika had seven days in which to challenge his qualifications but he did not do so despite being a candidate and never even petitioned the elections. Nyirenda stated that Nkunika instead embarked on a series of criminal complaints and proceedings complaining everywhere he could and in the process lost all the time.
He stated that Nkunika should have lodged the petition within 21 days of the elections and must been determined within 90 days after filing. Nyirenda submitted that the Constitution does not create a situation for the extension of time within which to lodge the petition, adding that Nkunika did not also seek leave of court to file. He stated that despite the petition being filed out of time, it was also filed in a wrong court and should be dismissed with costs.
And the ECZ in its answer to Nkunika’s petition stated that the nomination process involving the challenging of the process in respect of candidates for office of member of parliament was prescribed under Article 52 (4) of the Constitution and requires that the challenge of nomination of the candidate is made within seven days of close of nominations. ECZ further submitted that Article 73 of the Constitution prescribes the process for challenging the election of a member of parliament and prescribes the High Court as court of first instance and the Constitutional Court as an appellate court. ECZ in the premises prayed that the petition be dismissed for irregularity.
The case will come up for status conference before judge Martin Musaluke on April 17.