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Lusaka lawyer asks ConCourt to interpret ECZ powers to cancel polls

LUSAKA lawyer Michael Mutwena has petitioned the Constitutional Court over Electoral Commission of Zambia’s decision to cancel elections and call for fresh nominations under general elections in circumstances where a vacancy has not been caused by death or disqualification.

Mutwena, who has cited the Attorney General in the matter, argues that the electoral body has no power to cancel elections at ward, parliamentary or presidential level when a candidate contesting for election to the said offices decides to pull out of the race in a general election.

Mutwena, in his affidavit in support of originating summons, said there has been uncertainty in the public domain as to whether or not the ECZ is obligated and actually has power to cancel any election, including a general election, or whether such obligation and power only applies to by-elections.

He said a proper reading of the Constitution suggests that the Electoral Commission of Zambia only has powers to cancel or postpone a by-election and that they were not bestowed with powers by the constitution to cancel or postpone a general election or any of the sections to be held under the umbrella of a general election.

“In the foregoing, if uncertainty is not resolved, there is a high propensity that the constitution will be wrongly interpreted and that it will inevitably culminate into an illegal and unconstitutional decision, on the part of the Electoral Commission of Zambia,” said Mutwena.

“In my capacity as a citizen of this country, I have a constitutional duty and right to protect, bpreserve and defend the constitution of the Republic of Zambia and therefore, I seek the indulgence of this court by way of interpretation of the Constitutional provisions that relate to the matter and circumstances under which an election may be cancelled.”

Mutwena is seeking a declaration that the Electoral Commission of Zambia has no powers to cancel or postpone a presidential or parliamentary election under a general election.

He wants a declaration that pursuant to Article 52(6) of the Constitution, ECZ only has powers to cancel or postpone a stand-alone presidential election, as provided for in Article 106(5) and 105(8), or parliamentary by-elections and local government by-elections, as provided for in Article 57 and that all elections held under a general election are not amenable to cancellation or postponement by the commission.

He is also seeking a declaration that ECZ, with respect to general elections, only has the obligation and power to cancel nominations where there is death, resignation or disqualification of a candidate after close of nomination, and that they are further constitutionally obligated to hold fresh nominations and maintain the date of such general election as set out in the constitution, for all elections that are supposed to be held under general elections.

Mutwena is seeking a declaration that a vacant seat or office of MP, mayor, council chairperson or councillor occasioned by the expiration of the term of office and dissolution of Parliament or council, pursuant to Article 72(1), 81(1) and (3)and 157(1), is fundamentally different from a vacant seat, as defined in Article 72(2) and Article 157(2).

He also wants an order that a stand-alone presidential election, as provided for in Articles 106(5) and 105(8) can only be held if there is a vacancy in the office of President.

Mutwena is further seeking a declaration that a by-election pursuant to Article 57(1) can only be held if there is a vacancy in the office of a member of Parliament, mayor, council Chairperson and councillor.
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