CONSTITUTION MATTERS with Simon Kalolo Kabanda

Grade 12 academic qualification for election

Article 65(2)(a) of Nigeria’s Constitution of 1999 states that a person shall be qualified for election as a member of the House of Representatives if “he has been educated up to at least School Certificate level or its equivalent.’’

According to Article 80(1)(c) of the Constitution of Uganda of 2006, “A person is qualified to be a Member of Parliament if that person has completed a minimum formal education of Advanced Level standard or its equivalent.’’

Zambia’s 2016 amended Constitution, in Article 70(1)(d), states that “a person is eligible to be elected as a Member of Parliament, if that person has obtained, as a minimum academic qualification, a grade twelve certificate or its equivalent.’’ Zambia is neither the first nor the only country in Africa whose Constitution provides for minimum academic qualifications for elective office.

On 10th March 2021, the Constitutional Court of Zambia delivered an interpretation of Article 70(1)(d). This was in a matter where the election of the Lundazi Central Constituency Member of Parliament in the 2016 Parliamentary Election was petitioned on grounds that he did not posses a grade twelve certificate or its equivalent. What the candidate had presented at nomination, in May 2016, were the Zambia National Service Military Certificate, Computer Course Certificate, Theory in Music Certificate and Theological Tutor’s Certificate.

An ardent reader of this column has asked:
“Can you kindly explain what the judgement of the ConCourt means on the MPs without Grade 12 school certificate. Are the MPs illegally in the house? What happens to all the bills that were passed by them, are they null and void? Will these MPs vacate their seats? Thank you. Christopher.”

According to the judgment of 10th March by the ConCourt, the candidate and the Electoral Commission of Zambia (ECZ) did not contravene Article 70(1)(d) of the Constitution. This was because his “nomination and subsequent election (were) based on the prevailing interpretation of Article 70(1)(d) of the Constitution at the time in the SIBONGILE CASE” (9.1, J75)

The ConCourt stated that “in determining this petition, we cannot disregard the central role which the SIBONGILE ZULU judgment played in the electoral process as it provided the legal basis by which qualifications equivalent to a grade 12 certificate were assessed and accepted by the (ECZ)”, (8.38, J59). The High Court in the SIBONGILE ZULU case stated that ‘’a qualification higher than secondary education or its equivalent renders a person eligible to contest elective office under the impugned provisions of the Constitution (8.33, J56).’’

What this means is that the MPs who, at that time (in 2016), did NOT possess a Grade 12 certificate or its equivalent were validly nominated, and validly elected, on the basis of the High Court interpretation of Article 70(1)(d), because “the High Court’s interpretation of Article 70(1)(d) of the Constitution was…authoritative and binding. And in accepting the nominations of the candidates, the ECZ was bound by the authoritative judgment of the High Court.’’

However, according to the interpretation of Article 70(1)(d) by the ConCourt on 10th March 2021, “a tertiary, vocational, craft, trade or apprenticeship certificate is not equivalent to a grade twelve certificate (school certificate) as it is not comparable in value, amount, meaning and functions to a grade twelve (12) certificate (9.5, J76).”

Next week we shall continue to reflect on this issue. We shall look at why this provision is in the current Constitution, as well as its implications on the country’s political and governance processes.

If you have any question or issue regarding the Constitution and/or related matters that you would like this column to discuss, kindly send a message to me either through SMS, WhatsApp: +260-761-206353, or Email: shimwenya@yahoo.com

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