THE Lusaka High Court has nullified the Kwacha parliamentary seat which was held by former foreign affairs minister Joseph Malanji due to lack of a Grade 12 certificate and electoral misconduct.
But Malanji claimed he possessed the requisite academic qualification and was successful at nomination.
This is in a matter where losing UPND candidate Charles Mulenga challenged the election of Malanji citing bribery and electoral misconduct, among other reasons.
Mulenga also cited the Electoral Commission of Zambia as the second respondent in the matter.
Judge Kazimbe Chenda found that Malanji distributed money at Kwacha Market, Chikwepe Market in Chipata compound of Musonda Ward and Ipusukilo Market to traders, which was a misconduct in line with section 81(1)(a) of the electoral process Act.
“I find Malanji culpable of misconduct of distributing money to lobby for votes at Ipusukilo Market, Musonda Ward and Kwacha Market. The three isolated incidents of misconduct by Malanji in only three out of the seven wards was not so extensively prevalent to be said that it did or may have swayed the majority of voters in the entire Constituency from electing their preferred candidate,” judge Chenda said.
He said although there were some incidents of irregularity in the electoral process, the conduct of the election could not be said to have substantially deviated from the electoral process Act.
He added that the small number of votes in issue did not affect the victory by one candidate over the others.
Regarding Malanji not possessing the requisite Grade 12 certificate when filing for nomination, judge Chenda rejected the former MP’s argument.
Malanji had argued that by virtue of him successfully filing in his nomination as a candidate the eligibility issue was a non-issue or that it was statute barred.
The court said Malanji failed to produce concrete evidence to support his assertion that he possessed a G12 certificate on August 12.
Judge Chenda said Malanji also failed to prove in his answer to the petition that he possessed the requisite academic qualification and it was not produced by the returning officer.
“I accordingly accept that it has been proven by the petitioner beyond a simple balance of probabilities that Malanji did not possess a Grade 12 certificate at the time he was re-elected. There is equally no evidence of him otherwise holding a General Certificate of Education (GCE) or anything equivalent to a Grade 12 certificate,” said judge Chenda. “It has been proven to satisfaction that at the time of his re-election, Malanji was not eligible for election on account of not meeting the minimum academic qualification set by Article 70(1)(d) of the Constitution. I accordingly invoke section 99(a) of the Electoral Process Act and declare Malanji’s re-election on August 12, 2021 as MP for Kwacha Constituency to be void.”
He ordered Malanji to pay Mulenga costs while the latter will pay ECZ costs.
Reacting to the judgment, Malanji claimed that he possessed a GCE certificate and that he would appeal the High Court’s decision to the Constitutional Court.
“It’s unfortunate, we have to revisit this. I filed in my nomination and was successful. I produced a General Certificate of Education, I qualified. How do I stand for an election if I don’t qualify? We are appealing this on Monday,” said Malanji.
And Mulenga said Malanji committed a lot of irregularities and the elections were marred with violence, but he was delighted that justice had prevailed.
Mulenga was represented by Zevyanji Sinkala, and M Kansanji while Malanji was represented by Ferd Jere and Company.
Meanwhile, the court has upheld the election of Miles Sampa, Christopher Shakafuswa and Tasila Lungu as the petitioners did not prove their petitions to the required standard.