OUTSPOKEN lawyer John Sangwa has come to Edgar Lungu’s defense arguing that; by nullifying his nomination in the 2021 vote, the Constitutional Court would have also nullified the entire election that ushered in the UPND.
Despite having vehemently argued in the past that former president Edgar Lungu was not eligible to contest the 2021 presidential election after he was sworn into office twice, Sangwa has changed his position arguing that, nullifying Lungu’s nomination will also affect other candidates who participated in the election, including President Hakainde Hichilema who emerged triumphant.
“Such a decision cannot be made without hearing the rest of the presidential candidates who took part in the 2021 election, who are not parties to these proceedings,” Sangwa said.
He argued that there is no provision in the Constitution that clothes authority on the ConCourt to interrogate the eligibility of a losing presidential candidate to take part in the election post the election, which he has lost.
Sangwa who was joined to Lungu’s eligibility case as a friend of the Court said even if the Court decides that it has authority to entertain Michelo Chizombe’s petition, that authority is circumscribed in Article 118 of the Constitution.
“The import of this provision is firstly, that the exercise of the power must result in accountability and not anarchy. Therefore, where the converse will be the outcome, the Court must decline to exercise its authority. In effect, the authority must be exercised to achieve the prescribed goals,” he said.
Sangwa submitted that the Court is not free to do whatever it pleases, as it must protect and promote the national values and principles, in the exercise of its adjudicative authority as set out in Article 8 of the Constitution.
He said the Court cannot hear and entertain Chizombe’s petition without revisiting its decisions in this last three cases.
“A decision in favour of the Petitioner will mean the reversal of the Court’s previous decisions on Lungu’s suitability to stand in the election of 2021. This Court cannot entertain this petition in that it does not have the authority to do so,”Sangwa said.
“The jurisdiction of this Court stems from the Constitution. Therefore, the Petitioner ought to specify the provision of the Constitution, which gives this Court authority to do what it is being asked to do.”
He noted that Chizombe’s case appears to be that; although Lungu lost the election, he was not qualified as a presidential candidate. However Sangwa argues that the question that needs an answer is, whether the Court has authority under the Constitution to interrogate the eligibility of a losing presidential candidate to take part in the election, post- election.
“Such authority must be traceable to the Constitution. The Constitution has not conferred such authority on this Court. What exists
is authority to establish one’s eligibility to take part in the election: before the election is held,” he said
“This petition undermines the democracy and constitutionalism as well as good governance. At the heart of the constitutionalism is the need for public institutions and other persons subject to the Constitution, to accept the limitations imposed by the Constitution. This petition seeks to undermine objective.”
Sangwa said a declaration that Lungu was not eligible to contest the previous election, has profound implications for the governance of the country, which must not be ignored.
“Its impact will not be limited to Lungu alone. This Court will be expected to go further and address the constitutionality or legality on the 2021 presidential election that included an unqualified candidate,”he said.
“The intention of Article 52 of the Constitution is to ensure that only qualified persons take part in the presidential election. It follows that if an unqualified person took in an election, that election is tainted and must be nullified. It does not qualify as a presidential election envisaged by the Constitution. A valid presidential election is one that involves qualified presidential candidates.”
He said granting the reliefs by Chizombe will not only affect Lungu but all those who participated in the 2021 presidential race.
“Similarly, nothing stops the party that sponsored the First Respondent from contending that if indeed Lungu did not qualify it would have sponsored another candidate who would have helped the party retain both the National Assembly and presidency. It is also not inconceivable for one to contend that if Lungu did not take part in the 2021 presidential election, there would have been a second ballot,”he said
Sangwa added that the ConCourt cannot entertain the petition and grant the relief sought without affording the presidential candidates the opportunity to be joined and heard in support of the petition or against.
In this case, Chizombe is questioning Lungu’s Eligibility to contest the previous election and future presidential elections after having held office twice.
The youth activist has cited Lungu, the Electoral Commission of Zambia and the Attorney General as respondents in the matter arguing that; Lungu contravened the constitution when he participated in the August 12, 2021 general elections.
He stated that the electoral body contravened the constitution when it accepted Lungu’s nomination and allowed him to be on the ballot paper for the 2021 presidential elections which enabled him to participate.
The matter has been scheduled for today, for the main hearing.
By Mwaka Ndawa
Kalemba September 26, 2024.
