Charles Mathias Zulu v Electoral Commission of Zambia & Attorney-General (15 of 2021) [2021] ZMCC 6 (14 May 2021)

IN THE CONSTITUTIONAL COURT OF ZAMBIA 2021/CCZ/0015 HOLDEN AT LUSAKA (Constitutional Jurisdiction) IN THE MATTER OF: (cid:9) IN THE MATTER OF: AND IN THE MATTER OF: (cid:9) Articles 1(5) and 128(1)(a) of the Constitution of Zambia, Chapter 1 of the' Laws of Zambia The interpretation of Article 70(1)(d) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia Order IV Rule 2(2) of the Constitutional Court Rule, SI No. 37 R , OF ZAMBIA COURT OF ZAMBIA BETWEEN: (cid:9) um AN (cid:9) 14 MAY 2021 CHARLES MATHIAS ZULU REGE$Thy2 (cid:9) P o &o 50067. LUSAKA APPLICANT AND ELECTORAL COMMISSION OF ZAMBIA (cid:9) 18T RESPONDENT ATTORNEY GENERAL (cid:9) 2N11 RESPONDENT CORAM: (cid:9) Mulenga, Munalula, Chitabo, Chisunka and Mulongoti, JJC on 14" May, 2021. For the Apptkrint' (cid:9) .. Mr. K.. M Siribuo and Ms.. Nrffânthao of Mesàr~'Mt*wiqushi Chambers For the J! Respondent: (cid:9) Mr. B. M. Musenga., Commission Secretary (cid:9) For the 2nd Respondent: Mr. 3. Simachela, Chief State Advocate Mr. P. Kachi7nba, Principal State Advocate Mr. L Nyainbe, Principal State Advocate Ms. N. Lungwe, Senior State Advocate Ms. S. Mofya, Assistant Senior State Advocate Mrs. N. Malilwe, State Advocate RULING Mulongati JC, delivered the Ruling of the Court Case referred to: 1. Bizwayo Newton Ivkunika v Lawrence Nyirenda and another 201 9/CCZ/005 Legislation referred to: 1. The Constitution of Zambia Chapter 1 of the Laws of Zambia 2. The Constitutional Court Rules Statutory Instrument No. 37 of 2016 The Ruling pertains to the Notice of Motion to raise preliminary issues by the 2nd respondent pursuant to Order 14A and Order 33 rule 3 of the Rules of the Supreme Court of England, 1999 edition as read with Order I of the Constitutional Court Rules, Statutory Instrument No. 37 of 2016. The background giving rise to this Motion is that the applicant, by, 'Originating-8tM'imons, rñ*e (cid:9) of Article 70 ()(d) of the Contitution of Zanibia as amended by the R2 Constitution of Zambia (Amendment) Act No. 2 of 2016 (the Constitution). The questions raised for the Court's determination being- a) Whether, having regard to the Constitutional Court's Judgment delivered on the 10th day of March, 2021, 2019/CCZ/605 the pronouncement by the Electoral Commission of Zambia at its media briefing held on the 17th March, 2021 addressed by the Chief Electoral Officer that... tertiary qualifications such as a trade certificates, diploma or university degree are not equivalent to a grade 12 certificate and therefore will not be separately accepted without a grade twelve (12) certificate...". is in breach of the Constitution considering that a grade twelve (12) certificate or its equivalent is the minimum academic qualification required for a candidate; b) Whether a person who possesses a qualification that is higher than a Grade 12 Certificate or its equivalent is ineligible to be elected as a Member of Parliament on account that he or she does not possess the minimum Grade 12 Certificate or its equivalent; and c) Whether the Electoral Commission of Zambia should make a blanket interpretation as to what amounts to the equivalent of a Grade 12 Certificate or and that no .tertiary.:qucdtfi cation can. at alt be equivalettt to a grader 12 Certificate. R3 The 2h111 respondent subsequently filed this Motion raising the following preliminary issues: 1. Whether the interpretation of Article 70 (1)(d) of the Constitution of Zambia Act No. 2 of 2016 being sought in the current Originating Summons is res judicata on account of the Judgment of this Courfr in the case of Bizwayo Newton Nkunika v Lawrence Nyirenda and another' and therefore should be dismissed with costs; and 2. Whether this Honourable Court is wanting in jurisdiction as it is functus officio having pronounced itself on the subject of the litigation herein in the case of Bizwayo Newton Nkunika v Lawrence Nyirenda and another'? The Motion is supported by an affidavit, the gist of which is that the questions have already been determined by this Court in the case of Bizwayo Newton Nkunika v Lawrence Nyirenda and another'. The applicant opposed the Motion in an Affidavit in Opposition, the gist of which is that this Court is being implored to interpret the meaning of the words "has obtained as a minimum academic qualification, a Grade 12 Certificate or its equivalent" -We haie-c6isidered th&iües raised in'the :otiofl Th .ffklav1f evidence by both sides and the skeleton arguments. We have alse considered the oral submissions made during the hearing. We agree R4 that the interpretation of Article 70 (1) (ci) of the Constitution was well settled in the case of Bizwayo Newton Nkunika v Lawrence Nyirenda and another1. Accordingly, we find merit in the first preliminary issue. Given our position regarding the first preliminary issue, the second preliminary issue, therefore, falls away. The net result is that the applicant's action is dismissed. Each party will bear their own costs. M. S MULENGA CONSTITUTIONAL COURT JUDGE M. M MUNALULA M. CHITABO, SC CONSTITUTIONAL COURT JUDGE (cid:9) CONSTITUTIONAL COURT JUDCtF. - . M:K. CHISUNLI&1C1 JZL MtJLO1IGOTI.. CONSTITUTIONAL COURT JUDGE (cid:9) CONSTITUTIONAL COURT JuD&i; R5 (cid:9)