. Siliya

By PERPETUAL SICHIKWENKWE –
THE Supreme Court has ordered the Electoral Commission of Zambia (ECZ) to consider former Petauke Central Member of Parliament Dora Siliya and two others’ applications to re-contest their parliamentary seats.
The court in its ruling granted Ms Siliya, former Malambo MP Maxwell Mwale and former Mulobezi MP Hastings Sililo an order, compelling ECZ to consider their applications to re-contest the by-elections.
The seats were nullified by the courts after allegations of corrupt practices in the 2011 general elections.
Acting Deputy Chief Justice Mervin Mwanamwambwa, judges Hildah Chibomba, Gregory Phiri, Munyinda Wanki, Elizabeth Mayovwe, Evans Hamaundu and Munalula Lisimba, made the order yesterday.
Mr Justice Mwanamwambwa, who read out the judgment on behalf of the six other judges, said yesterday that the Supreme Court is not ordering the commission to determine the applications in a particular way.
The Attorney General in this matter had appealed against the High Court’s decision to order Electoral Commission of Zambia (ECZ) to accept nominations from the three despite the Supreme Court having
nullified their seats on account of corrupt practices.
The State wanted to know  whether the commission should bar candidates under section 22 read with section 104 (6) and (7) of the Act from contesting on the basis of the Supreme Court judgment alone, that found them guilty of having practiced corrupt practices to win the 2011 elections.
Mr Justice Mwanamwambwa said that the High Court was specifically mentioned as the institution that was tasked to write a report and that there was no ambiguity in that the Act gave an elaborate
procedure as to when and how such a report was to be made and delivered to the commission and the director of public prosecution.
The panel did not agree with the Attorney General that the High Court should have barred Ms Siliya, Mr Mwale and Mr Sililo from re-contesting the by-elections solely on the basis of the Supreme Court  judgments without the report from the High Court and procedure provided for under section 104 (6) and (7) of the Act.
Mr Justice Mwanamwambwa said that even after a Supreme Court judgment on appeal, a report by the high court , under section 104 (6) and (7), must be made before a person can be barred from contesting a preliminary election.
The commission was mandated to act only on the court conviction and the report issued by the high court to bar a person from voting and from contesting an election.
It was not in order for the commission to act on the report issued by the judiciary public relations officer and high court acting deputy registrar to bar the three from contesting in the elections that were scheduled for August, 2013.
Mr Justice Mwanamwambwa said that the act by the judiciary public relations and acting high court registrar was highly irregular and improper and that, “it should not have happened and should never happen again.”
He said that this was an attempt to bar the losing candidates from contesting parliamentary elections, outside the due process of law.
Mr Justice Mwanamwambwa said that those guilty of corruption or illegal practices should be barred but it must be under the due process of law.
He said that the statements had no useful purpose and had only deprived the people of Malambo, Petauke Central and Mulobezi constituencies of representation in parliament since 2013 because it induced the commission to postpone nominations and by-elections, indefinitely.
Mr Justice Mwanamwambwa said that the statements were null and void and of no legal effect because it is the trial judge and not the registrar of the high court who is mandated to make a report under section 104 (6) and (7) of the Act.