September 17, 2024
President Hichilema
addressed the National Assembly on 13 September, 2024, and of the many things
he discussed, one peripheral issue (and over which the government has shown
least interest), has sparked national debate: constitutional reform. His
rationalization of constitutional reform premised, inter alia, on the
possibility of deferral of scheduled elections seems to have awakened the ghost
of the infamous Bill 10. Perhaps this is a good thing as it shows that citizens
are awake and would not want to be deceived into believing that narrow,
partisan and short-term political interests can ground genuine constitutional
reforms.
The debate has particularly centered around the import of article 52(6) of the Constitution. When all the clutter is put aside, the question seems to be, can a scheduled election (in the context of a general election) be deferred beyond the set date of the general election as fixed by article 56 of the Constitution? For ease of reference, article 52(6) provides:
“Where a candidate dies, resigns or becomes disqualified in accordance with Article 70, 100 or 153 or a court disqualifies a candidate for corruption or malpractice, after the close of nominations and before the election date, the Electoral Commission shall cancel the election and require the filing of fresh nominations by eligible candidates and elections shall be held within thirty days of the filing of the fresh nominations.”
Although the article gives three potential triggers, that is,
death, resignation or disqualification, it is resignation that is the centre of
controversy because of the ease with which it can be done.
Although the article
seems to have caught popular imagination following the presidential speech, it
has been the subject of debate for many years for those working in the
electoral field and has already generated a sizeable amount of jurisprudence
from the Constitutional Court. The concern has always been its potential to
trigger uncertainty about when an election can be held, the cost of reprinting
ballot papers and concomitant logistics, as well as potential instability if
this were to happen at the presidential level where elections are a zero-sum
game.
Several cases, trying either to get clarity or to enforce the provision ended up in the Constitutional Court. Initially, the Constitutional Court took a simplistic view and considered even the withdraw of an independent candidate from the race, after filing of nominations, as constituting resignation and hence necessitating the cancellation of an election. However, in the case of Governance Elections Advocacy Research Services Initiative Zambia Limited v Attorney General and Electoral Commission of Zambia 2022/CCZ/0020, the Constitutional Court tried to narrow down the scope of the article and water down some uncertainty created by its earlier decisions. It held that a candidate could only withdraw from the election before the close of the nomination period. If a candidate withdraws after nominations, the Electoral Commission was not obligated to cancel the election. This was a significant point in clarifying the law and bringing certainty. However, as the Court noted, another strand of article 52(6) could still cause the cancellation of an election. That is, where a candidate sponsored by a political party resigns after the close of nominations but before the holding of an election. The Court noted:
“For the avoidance of doubt, we wish to state that in terms of Article 52(6) of the Constitution, where a political party sponsored candidate for election as a Member of Parliament resigns after the close of nominations but before the election date, the Electoral Commission is obligated to cancel the election and call for fresh nominations from eligible candidates and call for fresh elections in accordance with Article 52(6).”
From
the judgment of the Constitutional Court, it is clear that an election can be
deferred where a party sponsored candidate resigns. The law does not set any
limit of how many times a party sponsored candidate can resign, theoretically
leaving the election at the mercy of party candidates.
The concern about article
52(6) from this angle, then, is not just an abstract or speculative issue but
has materialized several times, at least at the level of local government and
parliamentary elections. Although this has not happened at the presidential
level, there is nothing immunizing presidential elections from the potential
uncertainty of the clause.
The article has also been the subject of several recommendations for reform by many local and international election observers. In 2021, for the example, the European Union Election Observation report noted:
“If a candidate in any constituency dies, resigns or becomes disqualified before the election date, the ECZ is obliged by law to cancel that election and restart the entire process. This entails uncertainty for the holding of elections and unnecessary additional costs for both candidates and the ECZ.”
To avoid
this uncertainty, the EU report recommended amendment of the clause.
Based on article 52(6) of
the Constitution and its interpretation by the Constitutional Court, it is clear
that the Electoral Commission is under a duty to cancel an election where any
of the three circumstances in the clause are met, regardless of the date for
the general election.
ABOUT THE AUTHORS
Dr. O’Brien Kaaba teaches
constitutional law at the University of Zambia and is a senior research fellow
at Saipar.