Constitution’s lacunae need urgent attention
Published On January 11, 2022 » 208 Views» By Times Reporter » Opinion
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IMMEDIATELY information started emerging that a candidate in the Kabwata Parliamentary by elections had abandoned his candidature, it became apparent that the elections slated for January 20, 2022 were at risk and might not proceed as scheduled.
Right there the by elections process, as far as the nominations were concerned, seemed ill-fated and embroiled into constitutional issues.
Indeed, while the nominations are protected against any candidate’s withdrawal from the race they are not immune against resignation, death or any stipulated disqualification of a candidate after the process and before the election.
As it has turned out, the Electoral Commission of Zambia (ECZ) says United Progressive Party (UPP) Kabwata Parliamentary by-election candidate, Francis Libanda wrote to it on Saturday indicating his withdrawal from the race.
Seemingly, disappointed that his move would not affect the forthcoming by-elections because the Electoral Process Act empowers the commission to reject a withdrawal and proceed with the election, Mr Libanda yesterday took another move.
He decided to clarify his decision while invoking the provision of Article 52 of the constitution thereby making it constitutionally and legally impossible for the ECZ to ignore or reject his move.
This led to the ECZ cancelling by-elections, a day before receiving the ballot papers and will soon call for fresh nominations for all.
While no one has the right to question, let alone condemn Mr Libanda’s action because he has a democratic right to vie and withdraw or resign from participating anytime, there are enormous implications.
The move by Mr Libanda has a huge financial implication in terms of what has been spent so far in the preparations as well as the inconvenience caused to all those involved including other candidates.
That single move by the former candidate has trashed all the funds spent by all those who are involved into the drain while there is no guarantee that after the next nominations there would be no other potential candidate to frustrate the process.
For the ECZ, the participating political parties, candidates and other stakeholders like the members of the civil society who could be involved; their possible cost of this by election has just been doubled.
But who is to blame because this is law!
Yes the law clearly states that where a candidate dies, resigns or becomes disqualified in accordance with Article 70, 100 or 153 or a court disqualifies a candidate for corruption or malpractice, after the close of nominations and before the election date, the ECZ shall cancel the election.
Instead of ending just there the constitution requires the filing in of fresh nominations by eligible candidates.
Certainly, while no one has the right to question the withdrawn or resigned candidate, citizens have the right to question the merit of that law and what purpose it serves, apart from providing an opportunity for an unnecessary and extra cost.
Indeed, what purpose does it serve apart from creating an opportunity to inconvenience everyone including the electorate who could have been geared for election on January 20!
To whose disadvantage would it be if the fresh nominations were only for the party which has lost a candidate through resignations, death or other eventualities?
Therefore, why not restrict the fresh process to that party, in this case the UPP and maintain the candidature for other candidates who may already lodged in their nominations?
This could be one of the so called lacunae in the current constitution which require urgent attention in terms of amendment to make the law more progressive.

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