Concourt rules that after declaring seat vacant, it is mandatory, whatever legal challenges, that an election should take place within 90 days
On 3rd July 2024, Second Deputy Speaker, Moses Frank Moyo declared the seats of 9 MPs seats vacant, 103 days ago, I guess the period for their by-election has lapsed!
The nine MPs are Hon.Brian Mundubile, Hon. Stephen Kampyongo, Hon.Christopher Kang’ombe, Hon.Ronald Chitotela, Hon.Remember Mutale, Hon.Mulenga Fube, Hon. Mutotwe Kafwaya, Hon.Nickson Chilangwa and Hon. Emmanuel Musonda Mpankanta.
2024/CCZ/0017:
Belemu Sibanze
Vs
Electoral Commission of Zambia
Attorney General
CONCOURT JUDGEMENT -15 OCT 2024
An Excerpt from the Judgement
.the Constitution and relevant legislation provide that matters to do with councilors are the preserve of local govt election tribunals (LGETs), It is apparent that the judicial review process is not only misconceived, but is a nullity for lack of jurisdiction on the party of the High Court.
On Pg 12, the court has this to say, we now turn to the substantive issue. In doing so, we wish to make it clear that the matter having come by way of our interpretative jurisdiction, we will not delve into any personalized or contentious questions arising from the constitutional provisions. Our intention is to prevent a violation of the constitution from occuring in accordance with our mandate under Article 128 (1) (a) of the constitution.
The originating summons sought among other interpretations :
Whether pursuant to Art 57 of the constitution, the prescribed period of 90 days within which to hold or conduct a by-election can stop running by virtue of a stay arising from an application for judicial review or any other application;
Whether the High Court has jurisdiction to circumvent the provisions of Art 52(4) through a judicial review application
Whether a conviction is a criminal proceedings amount to misconduct…
Whether an appleal without a stay of execution from criminal conviction stays the period for holding by-election as envisaged in Art 57 (1) of the Constitution….
On Pg 15, the Court guides that
* …the only constitutionally mandated legal challenge which may be mounted during the 90 day by-election process is a NOMINATION CHALLENGE. It must be determined within the specific timelines set for such a challenge. *Hence the election process once triggered by the vacancy must run its course until the election and there is no provision for its extension or re-alignment outside of the provisions of the constitution* the sum total the two provisions (Art 57(1) and Art 52(4) is that the entire process of a by-election must take place within 90 days from the date when a vacancy occurs.
When does the vacancy occur?
“A casual vacancy in the office of the MP, Council Chairperson or Mayor or Councilor occurs on the date the ECZ receives notification either from the Speaker or the Council Secretaries/ Town clerks* and the 90 days in which to conduct the by-election process ticks in”
” The law does not contemplate any other processes being undertaken during the 90 days let alone permit those processes to undermine the constitutional time limits.””….Hence once the applicant [ECZ] receives notification of a vacancy having arisen, it is under compulsion to set in motion the by-election process and conclude it within the 90 days in Art 57″.
Concourt rules that after declaring seat vacant, it is mandatory, whatever legal challenges, that an election should take place within 90 days
