Kachama withdraws petition on 2016 presidential nominations

MOVEMENT for Change and Equality party has withdrawn the petition in which it challenged the decision by the Electoral Commission of Zambia to have conducted the presidential nominations between May 27 and June 3, 2016 using the repealed Electoral Act of 2006 saying it was unconstitutional, illegal and irregular.

This is according to a notice of discontinuance filed in the matter.

“Take notice that the petitioner hereby discontinues this petition wholly against the respondents herein,” read the notice of discontinuance of the petition.

Movement for Change and Equality sued the Attorney General and ECZ in the Constitutional Court seeking a declaration that the conducting of 2016 presidential nominations without an enabling legislation and regulations was illegal because it contravened the Constitution.

Peter Mutondo Kachama, suing in his capacity as deputy secretary general of Movement for Change and Equality, wanted the Constitutional Court to grant him an order (of mandamus) that the petition be allowed.

Kachama also sought any other remedy that the court may have deemed just and necessary for the sake of defending the Republican Constitution from its illegal contravention and abrogation as well as costs occasioned by the petition to be borne by the respondents.

In his petition dated October 17, 2019, Kachama stated that on August 11, 2016, Zambia held General Elections, and concurrently a referendum was held on whether to enhance the Bill of Rights in the Constitution of Zambia.

He said the presidential nominations for 2016 general elections were held from May 27, 2016 to June 3, 2016 before the Electoral Process Act number 35 of 2016 was enacted and assented to on June 6, 2016.

He said that the Constitution of Zambia was amended and assented to on January 5, 2016 just a few months before the election, and further changes to the Electoral Process Act were enacted in June 2016.

Kachama contended that before the enactment of the Electoral Process Act No.35 of 2016, the enabling regislation at the time was the Electoral Act of 2016 and the Electoral Act Regulations (Act No.12 of 2006) (Code of conduct) – Statutory Instrument No 90 of 2006 were in place.

“The Electoral Commission Act No. 25 of 2016 was enacted on June 7, 2016 after the Presidential nominations were closed on June 3, 2016 and the functions as regards to the duties of the returning officer were not prescribed in the Act,” Kachama said.

“The petitioner derives the right to seek legal redress if any of provisions under Article 28 of the Constitution of Zambia were contravened or violated, but the first respondent (Attorney General) failed to advice the government on the electoral process laws on the systems of conducting and administration of elections pursuant to Article 177 (5) in the 2016 Presidential nominations.”

He said that the decision by ECZ to conduct the presidential nominations devoid of a standing law as provided for in the Constitution of Zambia (amendment Act no 2 of 2016) and the decision by the ECZ to proceed in conducting the nominations without the prescribed laws for the office of the vice-president as a running mate was illegal.

“The second respondent (ECZ) having conducted the Presidential nominations between May 27 and June 3, 2016 using the repealed Electoral Act of 2006 was unconstitutional, illegal and irregular,” Kachama said.

Kachama further claimed that the decision by ECZ having used the forms falling under repealed Electoral Act No.12 of 2006 or any other forms not backed by the law amounted to an illegality since the Electoral Act of 2016 did not provide for the vice-president as a running mate, hence, their was no prescription for the office bearer.

He charged that ECZ failed to ensure that the procedural requirements for presidential candidates were put in place as required under Article 52 (2) of the Constitution of Zambia (amendment) Act No 2 of 2016.

Kachama alleged that ECZ published the information of presidential candidates which it purported to have been duly nominated using forms which were not prescribed, as the regulations were not in place at the time of the said nominations which was contrary to the procedural requirements as provided for under Article 52 (3) as the information contained in a nomination paper shall be published by the ECZ as prescribed.

Kachama further stated that a political party has the right to disseminate information on social and economic programmes of a national character and of its political ideology and that a party shall promote the values and principles specified in the Constitution, to promote and uphold national unity and subscribe to and observe the code of conduct for political parties subscribed.

These are the same grounds New Labour Party leader Fresher Siwale presented in court but his petition was dismissed.

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