Division in ConCourt bench saves Lundazi MP from the axe

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THE Constitutional Court has delivered another split judgment in the Lundazi Central petition ruling that member of Parliament Lawrence Nyirenda did not breach the constitution and also that he does not have the requisite Grade 12 certificate and must vacate the House.

This is in a matter where losing candidate for Lundazi Constituency Colonel Bizwayo Nkunika asked the Constitutional Court to declare the Lundazi parliamentary seat vacant and order the Electoral Commission of Zambia (ECZ) to hold elections within 90 days.

Col Nkunika, who had cited Lawrence Nyirenda as first respondent and ECZ as the second respondent in the matter claimed that Nyirenda does not have the minimum academic qualifications as prescribed under Article 70 (1) (d) of the Constitution of Zambia because he does not hold a minimum grade 12 certificate.

But the Constitutional Court says Nyirenda and the Electoral Commission of Zambia did not breach the Constitution when the electoral body allowed Nyirenda to file his nomination for the 2016 parliamentary election without the requisite grade 12 certificate or its equivalent.

But in their dissenting judgments, Constitutional Court President Hildah Chibomba and Palan Mulonda said Nyirenda ought to be disqualified as a member of parliament as he does not have the requisite academic qualifications and contravenes Article 70(1)(d) of the Constitution.

According to the majority judgment by judges Ann Sitali, Mungeni Mulenga and Martin Musaluke, the Constitutional Court stated that Nyirenda’s nomination was based on other qualifications that were deemed equivalent to grade 12 certificate as notified by the electoral body.

The court said the Electoral Commission of Zambia had an obligation to obey the pronouncement of the High Court in the Sibongile Zulu case that a draft vocational or apprenticeship certificate would be equivalent to a grade 12 certificate.

Judge Musaluke said the court cannot disregard the central role which the judgment of the Sibongile case played in the 2016 elections in regards to the interpretation of what constituted a grade 12 certificate.

He said the description by the Zambia Qualifications Authority and the Examination Council of Zambia of what constitutes a grade 12 certificate cannot apply to Nyirenda because at the time of his nomination and election, there was a binding High Court decision upon which the electoral body acted.

Justice Musaluke said Col Nkunika did not challenge the validity of Nyirenda’s nomination or his election due to the instructions by ECZ that candidates without grade 12 certificates but had other qualifications should be accepted.

He added that Col. Nkuinka’s claims regarding the contravention of Article 70 (1)(d) of the Constitution failed and was dismissed.

Justice Chibomba in her dissenting judgment said the Sibongile case should not oust the interpretation of Article 70(1)(d) as the implication of such a decision was that a contravention of the Constitution must not arise until the court declares.

She said any Act that contravenes the constitution after it came into force should be rendered unconstitutional and illegal ab initio.

“The Sibongile Zulu case did not qualify any person in an election or member of parliament. It directed would be candidates to present their qualifications before ECZ in a manner evidencing that he or she has completed the required education programme or its equivalent,” justice Chibomba said.

She said ECZ’s mandate was to either accept or reject the nomination based in the qualifications submitted by candidates.

Judge Chibomba cautioned the electoral body against allowing candidates who do not have a grade 12 certificate or its equivalent to file their nominations.

“It has not been shown that ECZ complied with the guidelines given by the High Court in the Sibongile Zulu case. In my view, Nyirenda and ECZ contravened Article 70 (1)(d) of the Constitution on grounds that the certificates Nyirenda produced during his nomination were not equivalent to a grade 12 certificate,” said judge Chibomba.

” I would have ordered that since he did not meet the requirements of Article 70 (1)(d) of the Constitution his nomination and election and continued holding of office as member of parliament is contrary to the said Article and should be disqualified from continuing to hold office.”

And justice Mulonda said the Sibongile Zulu case cannot continue to hold in view of the fact that Nyirenda does not possess requisite academic qualifications.

He said the constitution was clear on the consequences of its contravention and any contravention of the Constitution was illegal.

Judge Mulonda ruled that according to the evidence by ZAQA and the Examination Council of Zambia, which was that Nyirenda does not possess requisite academic qualifications Article 70 (1)(d) of the Constitution, disqualifies him from being a member of parliament.

“Nyirenda not being in possession of a grade 12 certificate or its equivalent stands disqualified in terms of Article 70 (1)(d) of the Constitution and cannot continue to sit in Parliament as to do so will not only be illegal under Article 1(2) of the Constitution but a dereliction of duty on our part as a court. I would have ordered that Nyirenda should not have continued to sit as a member of parliament as this goes against Article 70 (1)(d) of the Constitution,” said justice Mulonda.

Credit: The Mast/By Mwaka Ndawa

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