THE State has argued that an election to the office of President, MP and councillor scheduled for and in a general election is amenable to cancellation by the ECZ where presidential, national assembly or local government election candidate dies, resigns or is disqualified after the close of nominations.
This is in a matter where Lusaka lawyer Michael Mutwena has petitioned the Constitutional Court over the decision by the Electoral Commission of Zambia 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.
In his affidavit in support of originating summons, Mutwena 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 not bestowed with powers to cancel or postpone a general election or any of the sections to be held under the umbrella of a general election.
In an affidavit in opposition to affidavit in support of originating summons, Solicitor General Abraham Mwansa said the ECZ was mandated pursuant to article 52(6) of the Constitution to cancel an election to the office of president, national assembly or a council following the death, resignation or disqualification of a candidate after the close of nominations and before the election date.
He said nominations for an election cancelled as such could take place within 30 days of the cancellation but before the scheduled elections.
And in skeleton arguments, Mwansa said ECZ could also postpone or cancel elections to the office of president, national assembly or a council scheduled in a general election and thereafter request for fresh nominations.
“Where a presidential candidate dies, resigns or is disqualified after the close of nominations but two to three days before the general election, ECZ will only have the authority to call for fresh nominations thereby allowing the party that has lost a candidate to nominate a substitute candidate,” Mwansa explained. “However, ECZ will not have the obligation to postpone or cancel the general election. This means that ECZ will not have sufficient time to reprint the ballot papers to reflect the changes resulting from the death, resignation or disqualification of a candidate.”
He stated that an affected political party would not have an opportunity to nominate an eligible candidate to replace the candidate who has resigned, died or has been disqualified.
Mwansa said with regards to general elections, ECZ only has power to cancel general elections where a presidential candidate dies, resigns or is disqualified after the close of nominations but before the election date.
“Where a candidate for parliamentary or local government seat dies, resigns or is disqualified after the close of nominations but before the general election, the general elections need not to be cancelled as only the election for the affected constituency or council can be cancelled or postponed,” said Mwansa. “It is the respondent’s submission that the applicant’s originating summons be dismissed with costs.”