Col Nkunika, the former Zambian High Commissioner to London and losing independent candidate in the Lundazi Central parliamentary elections, petitioned the election of Lawrence Nyirenda.
He said the Lundazi Central seat must be declared vacant because Nyirenda does not hold a full grade 12 certificate.
Col Nkunika dragged to court Nyirenda as the first respondent and cited ECZ as the second respondent.
The ECZ, in its skeleton arguments filed in the Constitutional Court Registry by its legal team, has asked the court not to entertain Col Nkunika’s petition because it is an attempt to circumvent the constitution and the electoral process Act, adding that it was filed out of time.
The electoral body argued that the court had always been categorical on the need to comply with the Constitutional timeframes as evidenced from the case of Hakainde Hichilema and Geoffrey Bwalya Mwamba vs Edgar Chagwa Lungu, Inonge Wina, ECZ and Attorney General where the court ruled that when the time for hearing the petition is limited by the Constitution, the court is bound to enforce the time limit and any proceedings outside that would be a nullity.
ECZ has further argued that the petitioner had not submitted any special reasons why a parliamentary election in which he himself participated should not be subjected to the procedures that govern election petition in the Zambian legal system.
“The fact that the petitioner had an opportunity to challenge both the nomination process and election outcome should no doubt work against him and does not entitle him to any sympathy. He should be told in no uncertain terms that courts cannot be swayed by sympathy into making moral judgments as ably outlined by the Supreme Court in the case of Zambia Revenue Authority vs the The Post Newspaper Limited Judgement,” stated ECZ.
Meanwhile, Nyirenda, in his skeleton arguments, asked the court to dismiss the case with costs as it was in the wrong court.
He submitted that the petitioner should have filed his petition within seven days after the general election and not after more than two years.
Nyirenda further submitted that Article 73 of the Constitution sets out the procedure for challenging the election of a Member of Parliament and prescribes the High Court as the first court of instance and the Constitutional Court as an appellant’s court.