Lusaka ~ Wed, 5 May 2021
By Brightwell Chabusha
The State has applied to be joined to the petition in which lawyer John Sangwa wants the court to order the Electoral Commission of Zambia (ECZ) to amend the Presidential nomination affidavit so that the President declares that he has not twice held office as President.
According to an affidavit in support of summons for joinder of party to the proceedings, Josiah Simachela, chief State advocate at the Attorney General’s Chambers, stated that Sangwa’s petition raises public interest issues relating to the process of conducting elections in Zambia.
“The petition herein also has implications of amending the law as contained in the Electoral Process (General) Regulations, Statutory Instrument No. 63 of 2016. It is imperative that the office of the Attorney General, being the custodian of public interest and Chief Legal Advisor to the Government, be joined to the proceedings herein,” he stated.
Mr Simachela stated that neither Sangwa nor the ECZ will be prejudiced by the granting of this application.
And Mr Simachela in his skeleton arguments, submitted that the State will demonstrate that based on the public interest issues that this matter raises, this is a proper case for this honourable court to exercise its jurisdiction and join the 2nd intended respondent.
“This application is made pursuant to Order V rule 4 (b) of the Constitutional Court Rules, 2016 which empowers this court to join a party to the proceedings,” he stated.
Mr Simachela further stated that it was clear that the court is vested with the jurisdiction to order the joinder of the Attorney General to the proceedings before judgment has been delivered if this honorable court finds it just and convenient,” he said.
He added that owing to the public interest issues relating to the electoral process that arise in Sangwa’s petition, it will be in the interest of justice that the intended 2nd respondent be joined to the proceedings.
“The judgment of this honourable court herein shall have an bearing on the public. Therefore, we submit that the Attorney General ought to be joined to these proceedings as a matter of public interest and policy as the Attorney General is not only a custodian of the public interest but also Chief Legal Advisor to the Government. If the main prayer of the petitioner herein is granted, it has implications of amending the law as contained in the Electoral Process (General) Regulations, Statutory Instrument No. 63 of 2016. As we close on this point, we wish to refer the court to Article 177 (5) of the Constitution,” he said.
Mr Simachela added that this is an appropriate instance for the court to join the Attorney General.
On Tuesday, Sangwa of Simeza Sangwa and Associates, filed a petition, arguing that the current version of the affidavit for Presidential candidate and running mate prescribed by the ECZ does not mandate Presidential candidates to address what is provided for in Article 106 (3) of the Constitution of Zambia.
He stated that Article 106 (3) of the Constitution provides another instance where one may be disqualified from nomination as presidential candidate.
“The current version of the affidavit for Presidential candidate/Running Mate prescribed by the respondent does not mandate Presidential candidates to address what is provided for in Article 106 (3) of the Constitution,” Sangwa stated. “By virtue of the what is stated in paragraph 3 to 14 above, the petitioner contends that the affidavit for Presidential candidate/Running Mate does not meet the requirement of Article 52 of the Constitution because it does not require a candidate in order to qualify for nomination as a Presidential candidate to state on Oath the number of times the candidate has held office as President as required by Article 106 (3) of the Constitution.”
Mr Sangwa stated that all those wishing to be nominated for election as President, member of parliament or councillor, are required to comply with Article 52(1) of the Constitution.
The petitioner stated that on April 30, 2021, he attended on the respondent’s manager of elections at ECZ headquarters in Lusaka.
“The purpose of the meeting was to confirm whether there has been any amendment to the said affidavit for purposes of the nomination of the Presidential candidates for the General Elections scheduled for Thursday 12th August, 2021. The petitioner was informed that the substance of the said affidavit has not changed,” he said.
Mr Sangwa urged the court to command ECZ to amend the said affidavit to include another paragraph to comply with Article 106(3) of the Constitution which must read: “I have not twice held office as President”.