THE State has subscribed to the proposal by Lusaka resident Joseph Busenga to remove Section 97(2)(a)(b) of the electoral process Act from the statute books as it does not promote fairness in the electoral process.
The office of the Attorney General has confirmed that there is an inconsistency in the Act because the section promotes corrupt and illegal practices and misconduct, which Article 45(2) of the constitution discourages.
Busenga has petitioned the Constitutional Court, seeking an order that it removes Section 97(2)(a) of the electoral process Act No. 35 of 2016 from the Zambian laws as it does not propagate equity in the electoral process.
Busenga argues that the Act is inconsistent with and contradicts Articles 8 and 45(2)( a) and ( b) of the Constitution because the mlatter makes a mandatory guideline that the electoral process and system of administering elections shall ensure that elections are free and fair.
He said to the contrary, Section 97(2)(a) of the Electoral Process Act departs from the constitutional provision.
He stated the Article in question provides that an election that is marred with corrupt practices, violence, intimidation, illegal practices or other misconduct can still be held valid and regarded as free and fair as long as the corrupt practices, illegal practices or other misconduct which was committed during the election was not committed by the candidate who has been petitioned or was not committed with their knowledge and consent, or the candidate’s polling agent.
“Whereas provisions of Article 8 provide for our national values as a sovereign Republic which include democracy, constitutionalism, good governance and integrity among other values, the provisions of Section 97(2)(a) of the Electoral Process Act in its current form does not seek to promote the said values but instead promotes, aides and abets corrupt practices and all manner of misconduct while giving safe haven to undemocratically elected public officials while shackling adjudicative bodies the ability to nullify such elections,” said Busenga.
He is seeking a declaration and order that section 97( 2)(a) of the Electoral Process Act No. 35 of 2016 is inconsistent with and contravenes Articles 8 and 45 (2)(a) and (b) of the Constitution of Zambia Amendment Act No. 2 of 2016.
The petitioner wants a declaration and order that section 97(2)(a) of the Act is null and void to the extent of its inconsistency with the provisions of article 42( 2)(a) and (b) of the Constitution.
In its answer to the petition, the State said Article 45(2) of the Constitution does not provide for a mandatory guideline that the system of administering elections should be free and fair and free from violence, intimidation and corruption.
“The standard required to nullify an election is practically impossible to achieve, which is contrary to democratic principles because a losing candidate should be able to petition an election to achieve justice which cannot be with a high standard,” said the State. “The petitioner is entitled to the reliefs sought, save for costs as this petition raises serious constitutional issues and the said costs should be in the cause.”
Meanwhile, Busenga has opposed Isaac Mwanza’s quest to join the petition as an interested party.
He said Mwanza could not file an application to be joined to the proceedings without obtaining permission from the court.
Busenga argued that the intended interested party has not demonstrated sufficient interest in the matter.