ConCourt directs ECZ disqualify violent parties from elections

THE Constitutional Court has directed the Electoral Commission of Zambia to curb electoral violence in the country as it has the power to punish perpetrators, which includes disqualifying any political party in breach of the electoral from participating in elections.

The court has since upheld the decision by the Lusaka High Court declaring UPND’s Romeo Kangombe as the duly elected member of parliament for Sesheke Constituency.

This is in a matter where losing Patriotic Front candidate for Sesheke Constituency Dean Masule challenged High Court judge Getrude Chawatama’s judgement in which she ruled that Masule did not sufficiently prove that the misconduct in the Sesheke by-elections was done with the knowledge, consent or approval of Kangombe.

“The will of the people of Sesheke was expressed by the number of votes secured by the winning candidate and my primary duty is to sustain that role by giving full effect to the decision of the people of Sesheke Contituency,” said justice Chawatama.

“In choosing the responfent as their member of parliament for Sesheke constituency it is left to me to say that he was validly elected. Therefore in view of the evidence before me I do declare that he was duly elected therefore the petition is hereby dismissed.”

Masule was dissatisfied with the decision of justice Chawatama delivered of May 28, 2019 and he appealed to the Constitutional Court against parts of the judgment.

In a memorandum of appeal against the High Court’s decision, Masule said justice Chawatama erred in law when she held that the provisions of section 97 (2)(b) of the electoral process Act no. 35 of 2016 exclusively governed the activities of the Electoral Commission of Zambia.

Masule claimed the trial judge erred in law when she held that the case of Josephat Mlewa vs Eric Wightman (1995-1997 ) ZR 171 had restrictive application in the current electoral law.

When the matter came up for hearing before a full bench of the court, Kangombe’s lawyer Mulambo Haimbe said the appellant had gone to great lengths in his heads of arguments to review previous decisions of the court in seven appeals in which the court was clear to the import of section 97(2)(b) of the Electoral Process Act.

He charged that Masule chose not to join ECZ at his own peril as it was only the Electoral Commission of Zambia that could answer whether or not the conditions set out in section 97(2)(b) on whether the election was conducted in conformity with the electoral laws.

Haimbe said failure to join ECZ to the proceedings, Masule’s case was fatally flawed as justice Chawatama was on firm grounds when she dismissed his petition.

“Given the subject matter of section 97(2)(b) which this court has previously pronounced itself on very clearly, the subject matter of the said provision is the conduct of an electoral officer of ECZ,” Haimbe said.

He said the prayer as contained in the arguments of the appellant to the effect that section 97 of the Electoral Process Act be struck out was not competent before court.

“The appeal lacks merit and ought to be dismissed with costs and the decision of the lower court where it refused to nullify the election of the respondent be upheld,” said Haimbe.

But Masule opted to rely on the record of appeal as his lawyer who was in conduct of the matter was not before court.

In his Judgment judge Martin Musaluke said Masule’s grounds of appeal had failed and declared Kang’ombe duly elected.

Justice Musaluke found that the trial judge was on firm ground when she held that the provisions of section 97 (2)(b) of the electoral process Act No.35 of 2016 exclusively governed the activities of the Electoral Commission of Zambia during elections.

He said justice Chawatama was bound to follow the rules of the court relating to the case of Josephat Mlewa vs Eric Wightman (1995-1997 )ZR 171 when she said it had restrictive application in the current electoral law.

“The two grounds of appeal advanced by the appellant fail and therefore the entire appeal fails. Accordingly, we sustain the decision of the lower court and declare that the respondent, Mr Romeo Kangombe, was duly elected as member of parliament for Sesheke Constituency,” he declared.

“We wish to reiterate and frown and strongly condemned all forms of electoral violence. Elections are a civilised way of participation of citizens in the governance of the country. Electoral violence diminishes the national values and principles enshrined in Article 8 of the constitution.”

Judge Musaluke said free and fair elections were a cornerstone of every democratic state that espouses its values.

“We therefore strongly urge the Electoral Commission of Zambia to take necessary steps to curb the warring culture of electoral violence in the country. We take judicial notice that ECZ has wide powers under the law to punish perpetrators of electoral violence which include the disqualification of a political party in breach of the electoral code of conduct from taking part in any elections,” said judge Musaluke.

“It’s time such powers are invoked to preserve life and property and democratic values and principles.”

Reacting to the judgment, Kangombe said he had forgiven Masule for taking him to court despite being his first cousin.

Kangombe asked his constituents to follow suit and forget about the differences which the two had.

“He who petitions you, doesn’t love you. And had it not been for God to give me the strength as well as the people around me, I would have failed in my duties along the way. But what I can say is, from today going forward, I will be firing from all pistons, I was firing on a single piston because of this case. And going forward, you will see the real Romeo Kangombe. I will work willfully, accordingly and I will show the responsibility of a member of parliament for the people of Sesheke, which even during the petition I have fulfilled,” Kangombe said.

“I can only wish well to Dean Masule. I don’t bear any grudge. It’s unfortunate that he doesn’t have a spine. As a brother, he doesn’t have a spine. If it were me, I wouldn’t have petitioned but I forgive him. And I want the people of Sesheke to forgive Masule. Whatever heart breakings they have had along the way, it’s high time we bury them in the past and forge ahead.”

And commenting on tribal remarks by Chanda Nyela during campaigns in Chilubi Island, Kangombe said only God prescribes the destiny of anyone as it was not by tribe or by region that one was destined for something.

“I was very disappointed by the words of Chanda Nyele when he said ‘if a Bemba is found in Southern Province, he can be killed by Tongas’. What kind of remarks are those especially from a leader? Going forward, I feel it’s high time we started taking actions towards such individuals for such sentiments because they have a potential to divide this country. As a lawmaker, I will ensure going forward that such individuals should be brought to book so that they can account for each and every word that they say in relation to tribal remarks,” said Kangombe.

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