Malanji v Mulenga and Ors (2022/HP /EP /0002) [2023] ZMHC 10 (24 January 2023)

IN THE IDGH COURT FOR ZAMBIA \ AT 'THE PRINCIPAL REGISTRY 2022/HP /EP /0002 HOLDEN AT KITWE (Civil Jurisdiction) ___ _ ( .. _/4 Mn . / .<1 ... �;� 8 LI C O F ,'_,r ?-(_ 1 �1 ' , [. ' u � "'-,�-tll Si ) I -( "f �f:1:j ifH·HV / ,--::? t ··,. -��' A WS OF ZAMBIA BIA ARTICLE 1(1), (3), 8 (c) (d) (e) AND 9 1) (b) OF THE CONSTITUTION OF IN THE/. -: J:J;{g;<;)f:� ' ', ·� . :�:.:·��-�,:-· :·· �-'L - � ! < . .#� L ' _:,.,,;-i ..,t;J,.,-� .. ZAMB IA CHAPTER ONE OF THE IN THE � -,Tef�-;r«t-/ ARTICLE 73(1) AND 70 (1) OF THE CONSTITUTION OF ZAMBIA, CHAPTER ONE OF THE LAWS OF ZAMBIA AS READ TOGETHER WITH SECTION 96(1) (a) (c) (i) and (2) OF THE ELECTORAL PROCESS ACT No. 35 of 2016 IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: ARTICLE 45(1) (a), (2) (a) (c) (e) AS READ TOGETHER WITH ARTICLE OF 52 (4) OF THE CONSTITUTION ZAMB IA, CHAPTER ONE OF THE LAWS OF ZAMBIA (2) (b) AND (4) AS SECTION 97(1), READ TOGETHER WITH SECTIONS 83(2) AND 99 (a) OF THE ELECTORAL PROCESS ACT NO.35 OF 2016 SECTION 98 (a) (b) OF THE ELECTORAL PROCESS ACT NO.35 OF 2016 SECTION 4 (1) AND (2) (a), (b) AND (c) OF THE ELECTORAL COMMISSION ACT NO. 25 OF 2016 IN THE MATTER OF: THE NATIONAL ASSE1\1BLY BY­ TITLE ELECTIONS (KABUSID CONSTITUENCY No.36 AND KWACHA CONSTITUENCY NO.22) (ELECTION DATE AND TIME OF POLL) (No.3) oRUER, 2022.. IN THE MATTER OF: THE ELECTOR. AL (� OF CONDUCT) REGJJLATI� 2011 STATUTORY INSTRUMENT No. 52 OF 2011 THE SCHEDULE TO THE ELECTORAL PROCESS ACT No. 35 IN THE MATTER OF: ,-, --�-��?��-2016 ... IN THE MATTER OFf · · •·:_p ..--.... �.......... ACHA CONSTITUENCY ION HELD ON THE 21ST .mt, 2022 , ,.,, .1 . . Jt �-· BY BETWEEN: JOSEPH MALANIT AND - .� ""-·&:- ;, ?°' l �1 )4 • ;,/ "�� / . - . ,-t��T�'•"'··· ,,,,,.- PETITIONER CHARLES MULENGA ELECTORAL CO1\1MISSION OF ZAMBIA ATTORNEY GENERAL 1 ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT Before: Honourable Lady Justice Zulu C. Chinyanwa For the Petitioner: For the Respondents: Mr. J Zimba and Mr. F W Daka both of Make bi Zulu Advocates, Mr. J Chirwa of Fred Jere & Company Mr B. A. Sitali -Messrs Mr. M Bwalya-In Mr. C. Mulonda-Principal Mr. C. Watopa -State Attorney Mr. C. Mulumbwa- Legal Practitioners of Zambia Commission General State Advocate-Attorney & Company House Counsel-Electoral General Chambers General's Chambers Chambers -Attorney Butler Ad�ocate- State Advocate JUDGEMENT CASES REFERRED TO: 1. Joseph Malanji & Bowman Chiloshi Lusamho v Attorney General & Another 2022/CCZ/0018; 2. Bernard 20221 CCZI 0024; 3. Peter Chizya Sinkamba and Issac Mwanza v Electoral Kanengo v Attorney General and Another Commission of Zambia 2022/ CCZ/ 0023; 2021 ICCZ/0051; General Z. R .49; Namugala of Zambia V Attorney 4. Law Association {1998). and Others v Chiluba 5. Lewanika 6. Brelsford James Gondwe V Catherine 7. Isaac Mwanza V Electoral Commission 8. Mulli Brother 9. Jere V Ngoma (1969) ZR 106; 10. Mlewa V Wightman 11. Limbo V Muthunda 197 4 I HP I EP I 2 Unreported; V Malawi Savings 1995 I 1997 ZR 171 Limited SCZ Appeal No. 129 of 2016; of Zambia V Attorney General 2020 I CCZI 0008; Bank/ 2015/MWSC 46�· -J2- 12. Anderson ZR138; Kambela Mazoka & Another V Levy Patrick Mwanawasa & Another 13. Nkandu Luo & Electoral Commission of Zambia V Doreen Sefuka Mwamba Selected Judgment No. 51 of 2019; Mabenga V Sikota Wina & Others Supreme Court Judgment No. 15 of 2003; 14. Michael 15. Akashimatwa Mbakusita 16. Bizwayo Newton Nkunika V Lawrence Lewanika & Another V Fredrick Chiluba 1998 ZR 49; Nyirenda & Electoral Commission of Zambia 2019/CCZ/005; 17. Charles Maboshe V Steven Nyirenda, Lucy Change & Electoral Commission of Zambia 2021 I CCZI 0031; 18. Munir Zulu V Gertrude 19. George Muhali Imbuwa V Electoral Commission 20. Kafuka Kufuke V Mwila Ndalame Appeal No 15 of2016; 21. Governance Mwanza 2021 I CCZI 009; Elections Research Services Pili/a of Zambia 2021 I CCZI A00I; Attorney General 22. Institute of Law, Policy Advocacy and The Electoral Research Commission and Human Rights, Limited vs The Initiative Zambia of Zambia 2022/CCZ/0020; Peter Chazya Sinkamba of Zambia and The Attorney General Commission and Isaac Mwanza vs. Electoral 2022/ I CCZI 0029; and 23. Nickson Chilangwa v The Attorney General and The Electoral Commission of Zambia 20221 CCZI 0026. Wise V E. F Hervey Limited Lubasi Mundia V Sentor Motor Limited 1995 ZR 179; (1982) Z. R 66; 24. William David Carlisle 25. Christopher 26. Bidvest 27. Bapi Audrey Kipdasa 28. BP Zambia PLC 29. Mukumbuta Mukumbuta Food Zambia Limited & 4 Others V CAA Import Export (Appeal 56 of2012,· & Joseph Busenga V Attorney General 2021 I CCZI 0011 & 0014; V Inter/and & Motor Limited 201 ZR 37; (SCZ No. 8 of & Another V Nkuilimba Choobana Lubinda 2003,· V Charles 30. Joseph Malanji 31. John Sangwa V Nkonde Appeal No. 2 of2021; 32. Dean Masole V Romeo Kangombe 33. Giles Chomba Yamba Yamba V Kapembwe Simbao Abel Mulenga & Other 2021 I CCZI A02; 2019 CCZ/002; & Other Selected Judgment No, 6 of 2018; 34. Austin C. Milambo V Machi/a 35. Margraret of2018; Mwanaktwe Jamba CCZ/ A06/ 2016; V Charlottte Scott & Attorney General Selected No. 50 Judgment 36. Bowman Lusambo V Bernard Kanengo 2021 I CCZI A00l 9 3 7. Aristogerismios Yangelatos No. 35 of2016; Judgment & Another V Meto Investment & Others Supreme Court LEGISLATION AND OTHER WORK REFERRED TO: of Zambia (Amendment)Act No. 2 o/2016; Act No. 35 of2016 & Act No. 32 o/2021; (General) Regulations, of Zambia Amendment Statutory No. 63 of 2016; Instrument Act No. 25 of 2016 & No. 5 of 2019; 1. The Constitution 2. The Electoral Process 3. The Electoral Process 4. Electoral Commission 5. Rules of the Supreme Court (1999) Edition 4th Edition, 6. Halsbury's Vol JO; 7. Butterworths. Landon; 8. Advanced Laws of England Dictionary of English 14th Edition; White Book; -J3- 9. Pocket· Oxford Dictionary 2''d Edition 1 O. Francis Beninon (1997) Bennion on Statutory and thesaurus interpretation. By 3'd Edition butterworths Londom Dublin and Edinburgh 1.0 INTRODUCTION 1.1 By Petition made pursuant to Articles 1(1), (3), 8 (c) (d) (e), 9 (1) (b), 73(1) and 70 (1) of the Constitution of Zambia, with as read together Sections 96(1) (a) (c) (i) and (2) of the Electoral Process Act No. 35 of 2016, Article 45(1) (a), (2) (a) (c) (e) as read together 52 (4) with Article of the Constitution of Zambia, Section 97(1)(2)(b) and 4 as read together with Sections 83(2) and 99 (a) of the Electoral Process Act, Section (a) (b) of the Electoral Process Act, Section 4(1) and 2(a), (b) and (c) of the Electoral Commission Act, the ational Assembly by-title Elections Kwacha Constituency No.22 (Election date and time of poll) (No.3) Order, 2022, the Electoral (code of conduct) Regulations 2011 Statutory Instrument No. 52 of 2011, the schedule to the Electoral 35 of 2016 and the Kwacha Constituency By-Election Act No. Process held on the 2isr October, 2022. The Petitioner, Mr Joseph Malanji seeks for the following reliefs:- that the election for K wacha Constituency on the Copperbelt and was void; 1. A declaration Province is 2. A declaration Constituency 3. A declaration Respondent that the J5' Respondent was not duly elected in the K wacha by-election; that upon the resignation of the said Lawrence Kasonde, the 2nd 4. An order for the 2'1d Respondent ought to have called for fresh nominations; to call for fresh elections within 90 days from the date of the judgment of this Court; 5. Damages for breach of duty by the 2nd Respondent; 6. Costs; 7. Any other relief that the Court may deem.fit. 1.2 The provisions of the law cited is expressed in the following terms:- Article 1 (1) This Constitution is the Supreme Law of the Republic -J4- of Zambia and any other written that is inconsistent practice inconsistency; law, customary with its provisions law and customary law of the is void to the extent (3) This Constitution institutions. shall bind all persons in Zambia, State organs and State Article The national values (c) are democracy ( d) human dignity, and Constitutionalism,· equity, social justice, equality and non- and principles discrimination; (e) good governance and integrity; Article (i) The national (b) enactment and q,nd principles interpretation of the law; values shall apply to the­ Article Article 73 (1) Qualification (1) A person may file an election of a Member of petition & disqualification with the High Court to Parliament; challenge the election of a Member of Parliament. Section 96(1) A question which may arise as to whether- (a) a person has been validly appointed or nominated as a Member of Parliament; (c) a petition application may be heard and determined made by any person to whom the question by the High Court upon relates. Article 45 (1) The electoral for in Article 47 for the election of systems provided Member of Parliament President, ( a) that citizens or Counsellor shall ensue- their political rights; are free to exercise (2) The Electoral process and system of administering election shall ensue- (a) that elections are free and fair; (c) independence, electoral process; efficiency accountability, and transparency of the {e) timely resolution of electoral disputes. Article 52 ( 4) A person may challenge before and the court shall hear the case within twenty-one as prescribed, a court or tribunal within seven (7) days of the close of (21) days of of a candidate the nomination nomination its lodgment. Section 97 (1) An election questioned by an election -JS- of a candidate except as Member of Parliament shall not he petition presented; (2) The election of a candidate as a Member of Parliament shall petition, it is proved to be void if, on the trial of an election the satisfaction (h) Subject of the High Court that to the provisions of Sub Section with the provisions ( 4), there has of this Act and it of the elections, to the conduct been non-compliance relating appears to election principles affected non-compliance was not conducted in accordance with the laid down in such provision and that such of the elections. the result the High Court or tribunal that the 83 (2) Section Section Section 4 (1) Section to the other provisions another person from exercising of this Act, a person shall not a right conferred by Subject prevent this Act Any of the following petition; reliefs may be claimed in an election (a) a declaration that the election was void; may be presented to the High Court or by one or more of the following persons petition An election tribunal a. A person who lawfully voted or had a right to vote to which the election petition relates; b. A person claiming nominated which the election as a candidate petition or elected relates. to have had a right to be to at the election The commission elections shall direct in a fair and impartial supervise manner; and control 2. The functions of a commission are: (a) Ensue that elections conditions (b) Promote and fair elections; are free and fair; conducive to free 2.0 HISTORICAL BACKGROUND electoral (c) Promote democratic process 2.1 The brief history leading to this Petition is that the Petitioner stood as parliamentary candidate for K wacha Constituency Front under Patriotic -J6- Ticket at the general elections that were held in 2021 and was declared as the duly elected Member of Parliament for Kwacha Constituency. 2.2 The Petitioner's seat was however, Zambia by the 1st Respondent. The High Court Judge that heard and petitioned in the High Court for determined the matter nullified the Kwacha Constituency Elections. The Petitioner appealed to the Constitutional Court under Cause Number 2021 I CCZI A002 l, which appeal was unsuccessful, as the Constitutional Court upheld the decision of the High Court. 2.3 The 2nd Respondent then set 25th August, in of 2022 as the date for filling nomination papers and I 5th September, 2022 as the polling date for. the Kwacha Constituency By-Elections. 2.4 On the 21st August, 2022 the Petitioner was adopted to stand as parliamentary candidate for Kwacha Constituency By-Election under the Patriotic Front ticket. The 2nd Respondent on the 24th August, published a media statement that it would not accept nominations from candidates whose seats were nullified by the Constitutional Court causing vacancies m the National Assembly. As such, when the Petitioner filed in his nomination on the 25th August, 2022, the 2nd Respondent's Returning that his Officer informed the Petitioner nomination for the K wacha Constituency was unsuccessful owing to the fact that his seat was nullified and that the rejection was as a result of Article 72 ( 4) of the Constitution. 2.5 The Petitioner alleged that the 2nd Respondent's agents had no power or authority to reject his nomination on the basis that his seat was nullified. Also that both the High Court judgment which nullified his seat and the Constitutional Court judgment which upheld the High Court judgment -J7- never drsqualified the Petitioner. According to the Petitioner, the 2nd Respondent was using undue influence to frustrate the Petitioner from taking part in the By-Elections for Kwacha Constituency. 2.6 Dissatisfied with the decision of the 2nd Respondent, the Petitioner proceeded to file Court Process in the Constitutional Court under Cause Number 2022/CCZ/0009 (although in his affidavit verifying facts he exhibited cause number 2022/CCZ/0018) wherein, to the according Petitioner, the Constitutional Court clarified that nullification is not the same as disqualification and further that the Court did not disqualify him. 2. 7 The Petitioner also challenged the decision of the 2nd Respondent's agent, the Returning Officer in the High Court. Since the election was to be held on the 15th September, 2022 before the High Court would have concluded the Petition, the Petitioner applied for a stay which suspended the election. That before the High Court could hear and determine the matter, the 3rd Respondent joined the matter claiming public interest. 2.8 Upon being joined to the matter, the 3rd Respondent applied to dismiss the matter which application failed. The 3rd Respondent then appealed to the Court of Appeal where they obtained a stay suspending the proceedings in the High Court. 2.9 The Petitioner applied to the Court of Appeal to discharge the stay which application was unsuccessful. 2.10 It is the Petitioner's contention that while the matter was before the High Court, a candidate namely, Lawrence Kasonde, tendered his resignation for candidature in the K wacha Constituency By-Election on or about 13th September, 2022 which he later purportedly rescinded on or about -JS- 2022. As opposed to addressing the resignation of a and while the High Court order that stopped the election was 7th· October, candidate still in force, the 2nd Respondent elections to be held on the 2l October, 5t proceeded to announce a date for 2022 notwithstanding that there and that the I st Respondent was was ·a stay or suspension of the elections subsequently declared dully elected. 3.0 THE ALLEGED CONTRAVENTION OF THE LAW 3.1 As stated above, the Petitioner alleges contravention of the law in that there was: Respondent from preventing to provisions the Petitioner Process Act of the Electoral his right to to exercise candidates; by the Act to eligible as conferred by the z,d Respondent as a Court of competent to stay I suspension jurisdiction by the the under this Act renders order issued nd (a) Non-compliance by the 2 any person prohibiting contest as a candidate (b) Non-compliance High Court action and void and an election null and void; by the Statutory Instrument issued on the 12th October 2022 illegal, null conducted under an illegal and void order is illegal, (c) Non-compliance Article (d) The Returning 52( 4) affected by the z,d Respondent and result 1d Officer of the Z Respondent the conduct to electoral timelines provided under of the election; violated and declaring Article that the Petitioner's 70(1) of the of Zambia by rejecting as unsuccessful by the Constitutional Constitution nominations Constituency having met the qualifications election because offices. to their respective (e) By not calling for fresh nominations his election Court of Zambia despite was nullified for the kwacha the Petitioner and procedural requirements specified for an after the decision and thereafter communication communication Respondent. (I) Calling for elections by the candidate that withdrew from the poll which was made to the Chief Electoral Officer in the employ of the 2nd without Respondent's their right to participate agent the returning in the said the nominations officer in this case from Petitioners which right was subsisting elections of the Petitioner being allowed by d the 2" against at the time. 4.0 THE PETITIONER'S CASE -J9- 4.1 The Petitioner repeated the contents of his Petition stated above, in the affidavit verifying facts and to avoid repetitions I find it in this judgment, unnecessary to recast the same. 5.0 THE RESPONDENT'S CASE 5.1 In opposing the claims in the Petition, each of the Respondents filed an Answer and Affidavit in opposition in which they disputed all the allegations in the Petition. 5 .2 I wish to state at the outset that the 3rd Respondent, the Attorney General was not a party at the commencement of this Petition. By summons for joinder filed on 9th November, 2022, the Attorney General applied to be joined to the proceedings on the ground that election petitions by their nature generate public interest and that the Attorney General being the custodian of public interest had sufficient interest in this matter. This Court through a Ruling dated 16th November, 2022 ordered the joinder of the Attorney General as the yd Respondent. 5.3 In his Answer, the pt Respondent stated that the issues raised in this Petition had been litigated and already resolved under Cause No. 2022/CCZ/0024 and Cause No. 2022/CCZ/0023 by the Constitutional Court, as such, the petition ought to be dismissed for being an abuse of Court process. 5.4 As regards the assertion by the Petitioner, that the 2nd Respondent had no power or authority to reject that the Petitioner's election was nullified, the Petitioner's nominations on the basis the pt Respondent's Answer was that the 2nd Respondent's agent had power or authority to do so. The 2nd Respondent's justification for the foregoing position was that the Constitutional Court had not yet interpreted the effect of nullification of -JlO- an ·election on the validity of a candidate's nomination who seeks to be re-nominated. 5.5 As regards the case of Joseph Malanji & Bowman Chiloshi Lusambo V Attorney General & Another, 1 the 1st Respondent's Answer was to the effect that the Constitutional Court did not pronounce itself on the qualification or disqualification of the Petitioner. 5.6 Further that there was no High Court Order, Stay or Suspension of the elections subsisting, when It is the 1st Respondent elections. the 2nd Respondent announced the date for position that the date for elections was on 11th October, 2022 whereas the High Court jurisdiction announced ceased on 20th September, 2022 a position by the that was confirmed Constitutional Court in the case of Bernard J(anengo V Attorney General &Another. 5. 7 Also that the validity or otherwise of the Statutory No. 64 of Instrument 2022 was subject of ligation in the Constitutional Court under Cause Number 2022/CCZ/0029, hence, the Petitioner to any of is not entitled the reliefs sought. 5.8 To this effect, the 1st Respondent averred that the 2nd Respondent acted within its constitutional and statutory mandate in conducting the elections. That the Constitutional Court in its abridged Judgment of Peter Chazya Sinkamha, Isaac Mwanza V Electoral Commission of Zamhia3 at paragraph 27 pointed out that the 2nd Respondent did not breach its constitutional mandate when it did not cancel the By-Election in the Kabushi and Kwacha Constituencies. 5.9 In winding up, the pt Respondent's answer Counsel for the pt Respondent maintained that the 3rd and 4th reliefs sought by the Petitioner were settled by the Constitutional Court under Cause No. -Jll- 2022/CCZ/0023 under paragraph 35 in which the Court declined to grant the declaration that the 2ndRespondent was obliged to hold fresh nominations for Kabushi and K wacha Constituencies and also that the the 2nd Respondent to Court declined to grant an order compelling conduct fresh nominations in Kabushi and K wacha Constituencies. 5.10 The 1st Respondent's Answer was accompanied by an Affidavit m Support of the Answer, which more or less repeated of the the contents pt Respondent's Answer. To avoid repetition I will not the pt recast Respondent's affidavit in support of the Answer. 5.11 In reply to the pt Respondent's Answer, the Petitioner filed its reply on the 18th December, 2022. The Petitioner contended that the petition sought to challenge the legalities of the By-Election held in K wacha Parliamentary Constituency where he was prevented from participating by no fault of his own. Hence, the petition was no way an abuse of Court process. He further stated that although his seat was nullified, he was not disqualified from re-contesting and that the 2nd Respondent disqualified him without any proper application of the law. 5.12 The Petitioner further stated that the decision to clarify that nullification is not synonymous to disqualification was rendered before the nomination process under the Cause No. 2022/CCZ/0051 in the matter of the Law Association of Zambia & Attorney Genera/4 which the 2nd Respondent's ignored. According to the Petitioner, the effect of aforementioned case meant that the 2nd Respondent should have decision rescinded their but that they never the less proceeded with the illegality despite the guidance by the Constitutional Court. 5.13 The Petitioner further stated that the Statutory that was Instrument subject of consideration in the Constitutional Court under Cause Number 2022/CCZ/0029 -J12- was not subject of consideration in this matter and that the petition was not making any attempt to challenge the Statutory Instrument. 5.14 In winding up his Reply to the pt Respondent answer, the Petitioner stated st that the 1 Respondent participated in an election that was void and that the issues raised in this petition in any had not been resolved Court before and that are novel matters which need determination. 5.15 The Petitioner's reply was accompanied by an affidavit The in reply. affidavit in reply more or less repeated the contents of the Petitioner's reply to the Answer save to add that the Petitioner this petition the Constitutional and statutory did not challenge mandate of the 2nd in Respondent. However, the 2nd Respondent that the petition was challenging the decision of of preventing him from participating in the By­ Elections. That he was thus challenging the illegality of the By-Election held in Kwacha Parliamentary Constituency. 5.16 Lastly that, it was correct that the Petitioner malpractice, corruption practices or illegalities had not alleged on the part of the 1st any Respondent in the petition. of the 2nd Respondent illegality That he had however, challenged the and that as a product of an illegality, the st Respondent participated in a void election. 5.17 In their Answer filed on 14th November, 2022, the 2nd Respondent stated that it issued a media statement to all aspiring candidates for the By­ Elections informing them of the guidelines on the filing of nominations for the seats that had been nullified. Also that, the said media statement had no legal effect and did not target any person, but was a general guidance for all aspiring candidates. As such, the 2nd Respondent acted within his constitutional mandate regarding the conduct of the nominations for the said elections. -J13- 5.18 The 2nd Respondent, further stated Court did not that the Constitutional pronounce itself on the eligibility of the Petitioner the By­ to contest Elections set for 15th September, 2022. Further that, on 20th October, 2022 the Constitutional Court under Cause No. 2022/CCZ/0024 determined that to hear and the High Court was out of jurisdiction determine the election petition filed under Cause No. 2022/HP /1327 when the 21 days prescribed by the Constitution and for hearing determining the said petition lapsed. Thus, that the stay/ suspension of election order granted by the High Court under Cause No. 2022/HP / 1327 expired on or about 20th September, 2022 when the 21 days provided by the Constitution for hearing and determining the petition lapsed. 5.19 As regards the alleged contravention of the law, the 2nd Respondent's answer, was that the 2nd Respondent acted within its constitutional and legal mandate regarding the conduct of nominations for K wacha Constituency By-Election. That the Statutory Instrument No. 64 of 2022 which set 21st October, 2022 as the poll day for the By-Elections for Kwacha Constituency was issued in line with Article 57 (3) of the Further Constitution. that the Petitioner did not allege the provisions of the law which were breached by the issuance of the Statutory Instrument. Therefore, that the Petitioner was not entitled to any relief as the election for the K wacha Constituency was conducted m substantial conformity with the electoral laws and procedures. 5.20 The 2nd Respondent's answer was accompanied by an affidavit m support. The sum total of the affidavit in support deposed by Bob Mwelwa Musenga, the Acting Chief Electoral Officer, was that the Kwacha Constituency National Assembly election by the was nullified Constitutional Court on appeal from the High Court on the 3rd August, -Jl4- 2022. ·Following that, the 2nd Respondent Instrument set 25th August, 2022 as the date of nominations through a Statutory and 15th September, 2022, as the poll day for the By-Election for the Kwacha 24th August, Constituency. On 2022, the 2nd Respondent issued a media statement to all aspiring candidates for the said By-Elections informing them on the guidelines on the filing of nominations for the seats that had been nullified. That the media statement was a guideline to all aspiring candidates on the nomination process that was scheduled to be conducted on 15th August, 2022 and that in accordance with the law, the Petitioner's nomination was rejected. 5.21 On 13th September, 2022, the High Court stayed/suspended the Parliamentary By-Elections in Kwacha Constituency which was scheduled to be held on Thursday, 15th September, the 2022 pending hearing and determination of Cause No. 2022/HP/1327. On 14th September, 2022 the 2nd Respondent issued a press statement to advise the electoral stakeholders and the general public that following the High Court Ruling delivered h September, 2022, staying/suspending the on 13t election for Kwacha Constituency, set for 15th the By-Elections September, 2022 would not take place until further notice. 5.22 That on 20th October, 2022 the Constitutional Court under Cause No. 2022/CCZ/0024 determined that the High Court ran out of jurisdiction to hear and determine the election petition filed under Ca use No. 2022/HP/1327 when the twenty-one by the (21) days prescribed Constitution for hearing and determining the petition lapsed. 5.23 Further that the Constitutional Court and the High Cou1t had not pronounced By-Election themselves set for 15th September, 2022. on the eligibility of the Petitioner to contest the -J15- 5.24 The 3rd Respondent filed its answer on 12th November, 2022. The gist of the 3rd Respondent's answer was that the issues raised in the petition had already been litigated and resolved in Cause No. 2022/CCZ/0024 by the Constitutional Court and that this petition was actually an appeal disguised as a petition as such it ought to be dismissed. 5 .25 The 3rd Respondent stated that at the material time, the 2nd Respondent's agent had power or authority to reject the Petitioner's nomination papers on the basis that the Petitioner's election was nullified as the Constitutional Court had not yet interpreted the effect of nullification of an election on the validity of a nomination for a candidate that seeks to be nominated for a by election following the nullification. 5 .26 In addition, that there was no High Court Order or stay or suspension of elections subsisting when the 2nd Respondent proceeded to announce the date for elections. The date for elections was announced on 11th October, 2022 whereas ceased on 20th the High Court jurisdiction September, 2022, a position that was confirmed by the Constitutional Court in Cause No. 2022/CCZ/0024. 5.27 As regards the alleged contravention of the law, the 3rd Respondent stated that the 2nd Respondent complied with the provisions of the Electoral Process Act and the Constitution. That the constitutional Court in its abridged Judgment under Cause No. 2022/CCZ/0024 held at paragraph 2 7 that the 2nd Respondent did not breach its Constitutional mandate when it did not cancel the By-Elections in the Kabushi and Kwacha Constituencies set for lSCh September, 2022 call for fresh nominations and hold elections within thirty (30) days. 5.28 Regarding the reliefs sought by the Petitioner, the 3rd Respondent maintained that the Petitioner was not entitled to any reliefs at all. Also that reliefs No. 3 and 4, were settled by the Constitutional Court in -J16- Cause Nb. 2022/CCZ/0024 at paragraph 35 of the abridged judgment dated 17th October, 2022 where the Court declined to grant the declaration that the 2ndRespondent was obliged to hold fresh nominations for Kabushi and K wacha Constituencies and also declined to grant an order compelling the 2nd Respondent to conduct fresh nominations and elections in Kabushi and K wacha Constituencies. 5.29 In reply to the 3rd Respondent's on the 23rd Answer, the Petitioner November, 2022 filed his reply. He maintained therein that his petition assails the legality of the By-Election held in K wacha parliamentary constituency while a stay suspending the election was still in effect. He further stated that the clarification that nullification is not synonymous to disqualification came before the nomination process in the Constitutional Court matter of Law Association of Zambia v Attorney Genera/ 4 wherein the Court clarified with utmost precision the terms nullification and disqualification which the 2nd Respondent ignored. 5 .30 The Petitioner further maintained that while the High Court order which suspended the election was in force, the 2nd Respondent proceeded to announce a date for elections notwithstanding the stay or suspension of the elections. 5.31 The reply to the 3rd Respondent's Answer was accompanied by an affidavit in support, wherein it was deposed that his petition was not in any way an appeal in disguise, but a petition of an election that was held in total disregard of the Court order. Further in the that the issues raised petition were not dealt with under cause number 2022/CCZ/0024. Also that a Ruling dated 13th September, 2022 was delivered by the High Court which stayed and or suspended the elections that were scheduled to take place on 15th September 2022 under cause Number 2022/HP / 1327 which the 2nd Respondent totally disregarded. As such this petition -J17- was challenging the legality of the elections that were held amid a Court Ruling staying and or suspending the holding of the elections. Further that the petition by the 3rd Respondent but that the 2nd Respondent breached the was not challenging the Statutory Instrument as asserted Constitution when it went ahead and made a declaration that no fresh nominations were to be conducted and proceeded to hold elections when a stay was still in effect. 6.0 EVIDENCE AT TRIAL 6.1 At the trial of the petition, three (3) witnesses were called in aid of the Petitioner's case. 6.2 The first witness to take the stand was the Petitioner himself who testified as PWI. The sum total of his evidence was that he was elected in 2021 as Member of Parliament and that his for K wacha Constituency election was challenged by the I st Respondent. The High Court nullified his election which decision was upheld by the Constitutional The Court. 2nd Respondent then set a date for nomination for the By-Election. 6.3 It was PWI 's evidence that considering that he was not disqualified from re-contesting the By-Election in the Constitutional Court judgment he started preparing himself for the By-Election. That on the 24th August, 2022 there was a circulation of a media statement by the 2nd Respondent preventing persons perceived to have caused nullification of Parliamentary seats from filling nominations. PWI produced the media statement which the Court marked "Pl" and read out the statement couched words: in the following "The commission amendment candidates in line with Article Act No 2 of 2026 will therefore in the National who caused a vacancy not accept Assembly" 72( 4) of the Constitution nominations of Zambia from any -J18- 6.4 PWt then told the Court that on 25th August 2022, he went to the nomination center at River Rain within Kitwe where he presented his papers as per requirement together fess. The 2nd Respondent's and prescribed with the prescribed number of people agent the Returning Officer, a Mr. Brian Mbula went through the documents and was satisfied with the documents. That he, however, rejected the ground of article 72( 4), actualizing PWI's nomination on by the 2nd the media statement as invalid Respondent. The Returning Officer then gave PWl a document which he produced in Court and was marked as "P2" couched in the following words: as invalid "I have rejected name Malanji Joseph, Constitution". the nomination reason for rejection papers of the following based on Article candidate (i) full 72(4) of the 6.5 According to PWl, he was prevented from participating in the election. 6. 7 He told the Court that he was aggrieved High Court which stayed the elections. and filed court process The 2nd and Y in the d Respondent however, appealed to the Court of Appeal to stay the proceedings in the High Court which application was granted and the proceedings in the High Court were stayed. PWI testified that he then instructed his lawyers to discharge the stay in the Court of Appeal which was unsuccessful as he was given a hearing date of 20th October, 2022. 6.8 It is PWI 's testimony that on the 20th October, 2022 hearing did not take place as all matters from the 3rd Respondent's chambers had been rescheduled as they were attending a workshop. He went on to state that on that same day, 20th October, 2022, the Constitutional Court delivered a Ruling allowing the election to go ahead. However, in the said Judgment, the Constitutional Court stated that the Court of Appeal had no jurisdiction to hear matters relating to nominations. PWl stated that -J19- m the meantime, the 2nd Respondent had already set a date for 2 l5t October, 2022 for the By-Elections. He further testified that, it was his belief that all these happenings were an attempt by the 2nd and 3rd the elections. him from participating in Respondents to prevent 6. 9 PWl further testified Court did not that the Ruling of the Constitutional disqualify him from participating in the election but merely nullified his seat. He then proceeded to read a passage in Cause Number 2022/CCZ/0018 at page 18 which reads: "In conclusion, persons c, d, g and h" cannot contest we find that article an election 72( 4) has specified and these are specified or 72 a, b, in Article which categories 6.10 According to the Petitioner, the Article does not include persons' whose seats fell vacant by virtual of nullification of an election in which category he falls. Therefore, Respondent's media statement "Pl" nd the 2 Court's was out of order as the Constitutional judgment was very categorical. 6.11 In winding up his testimony on his he told the Court that he was relying petition, affidavits and urged this Court to grant him the relief sought in the petition as reproduced above in paragraph 1.1. 6.12 Under cross-examination by Mr. Sitali, Counsel for the pr Respondent, PWl was asked whether he filed originating summons in cause number 2022/CCZ/0018 in the Constitutional Court against the 2nd and 3rd Respondents to determine and interpret three questions, namely that: 1. Whether the decision of the 2nd Respondent dated 24th August, 2022 was illegal, null and void; 2. Whether the applicants are eligible the 15'1 to contest 2022 by­ ' September, elections; 3. Whether fresh nominations should be conducted to allow the applicants to participate in the by-elections; 4. What was meant by causing a vacancy in the National Assembly as stated in Article 72 of the Constitution. -J20- 6.13 His answer was in the affirmative. When further asked which decision of the 2nd Respondent he was inviting the Constitutional Court to declare as illegal, null and void, he responded that it was the decision to circulate, a day before nominations, a media statement to the effect that individuals who caused vacancies were not eligible to re-contest in By-Elections. When further asked to confirm that questions 1, 2 and 3 above were dismissed by the Constitution al Court, PWl answered in the affirmative. 6.14 When asked that his petition did not allege any malpractice or illegality against the 1st Respondent, he answered that the 1st Respondent participated in an election where he was prevented from participating and that the 1st Respondent is a party to an illegality. 6.15 Further under cross-examination by Mr. Bwalya, counsel for the 2nd Respondent, PWl was asked whether he remembered the date he filed his petition and his answer was that it was immediately after the rejection of his nomination. When asked the outcome if any of the petition challenging his nomination, he stated that there was no outcome as the 2nd Respondent appealed to the Court of Appeal. When referred to read a Ruling of the High Court as appearing at page 252 of the Petitioner's bundle of documents, PWl stated that his petition in the High Court challenging his nomination was filed on the 30th August 2022 and that the 21 days in which the High Court had to determine the matter lapsed on the 2isr September 2022. He was then asked whether the stay/ suspension order lapsed after the 21 days, he stated that he was not aware. When further asked whether the Statutory Instrument issued by the 2nd Respondent on the 11th October 2022 was issued after the 21 days or before, he stated that it was issued after the 21 days. -J21- 6.16 Under further cross-examination by Mr. Mulonda, Principal State advocate for the 3rd Respondent, PWl was asked the question whether it was his testimony that the 3rd Respondent prevented him from in the by-election, PWl in his response stated that, it was participating the 2nd and 3rd Respondent 3rd Respondent appealed who prevented him. He stated further that the against the High Court decision and obtained a stay suspending the High Court proceedings. When asked what course of action and outcome he took after his nomination was rejected, he stated that he commenced an action in the High Court challenging the rejection of his nomination but that the High Court did not grant him the relief he sought because the 21 days in which the Court had to decide had lapsed, so his claims did not fail. When asked whether he was on the ballot paper for the By-Election, he stated that he was not. When further asked whether it is possible for a person that is not on the ballot paper to take part in an election as a candidate, he stated that it was not possible. When asked why this Court should declare the kwacha By-Election void, he stated that the announcement of the date of election of 21st October, 2022 by the 2nd Respondent was done before the ruling of the Constitutional Court and discharge of stay suspending elections. He was then referred to cause number 2022/CCZ/0024 and asked whether the judgment was delivered before the elections or after the elections. His evidence was that it was delivered after the fresh date of the election had already been set. 6.17 In re-examination PWl confirmed that he had asked the Constitutional Court to determine whether he was qualified to re-contest the elections. He further stated that the 2nd Respondent breached the law by not calling therefore, for fresh nominations, he was prevented from re-contesting. Also that the electoral timelines were affected and yet the 2nd Respondent from contesting agent was satisfied with the because he was prevented -J22- documents submitted. He further told the Court that the elections were held after the twenty-one (21) days. 6.18 The Petitioner's second witness, Alex Chembo, testified as PW2. The sum total of PW2's evidence was that he was one of the persons chosen to escort the Petitioner to file nominations at River Rain School Nomination Centre. That when he reached in the nomination Centre, he saw workers from the 2nd Respondent a and the Returning Officer, Mr. Brian Mbula. The Returning Officer told the Petitioner to give him his documents and guided him which document he wanted. The Petitioner gave the Returning Officer the documents and was taken to a camera where his image was captured, he signed and paid the prescribed fees. Further that the Petitioner's supporters had their voter's cards verified. At the end, the Returning Officer stood up and told the Petitioner that all his documents were okay and that as he was uttering the words he was also writing on a piece of paper. He further said that because of Article 72 ( 4) the Returning Officer refused to receive the nomination, a thing that worried PWI. PWI said this made him worried and left him with so many questions in his mind. 6.19 PW2 then showed the Court the document marked "P2" as the document that the Returning Officer wrote. PW2's further evidence was that he developed thoughts in this mind and wondered how the 2nd Respondent being an institution that conducts elections can prevent someone from participating in the election. 6.20 Under cross-examination, by Mr Sitali Counsel for the 1st Respondent PW2 conceded that the events narrated in his evidence in chief occurred at nomination stage. In further cross-examination by Mr Bwalya Counsel for the 2nd Respondent, PW2 conceded that he did not produce any document showing that he was an election agent. -J23- 6.21 The 3rd Respondent's question, Respondent's Counsel, Mr Mulumbwa merely repeated the 1st which for the sake of repetition, I find unnecessary to rehash. 6.22 There were no questions for the Petitioner in re-examination. 6.23 PW3 was Brian Mbula, the 2nd Respondent's Returning Officer for Kwacha Constituency, who was subpoenaed of the at the instance Petitioner. PW3 brought two (2) documents namely a declaration of the results of the poll-Member of Parliament and the notification of the nomination Assembly. received-National 6.24 The sum total of PW3's evidence was that the Petitioner came at the nomination center around 14 hours on 25th August, 2022. That prior to that on 24th August, 2022 there was a media statement issued by the 2nd Respondent barring certain candidates who had caused By-Elections from filing nominations. He then stated that the Returning Officer received all the documents required from the Petition er, scrutinized them and that he was comfortable, however, he that his told the Petitioner nomination was invalid based on Article 72( 4) of the Constitution as per the media statement. As a result the nomination for the Petitioner was rejected and he did not participate in the By-Election. 6.25 There were no questions by the Respondents in cross-examination. 6.26 The Petitioner then closed his case. 6.27 The Respondents called only one witness, the 1st Respondent who testified as RWl. The sum total of his evidence was that he was relying on the affidavit in response filed in this matter and briefly added that he was at a loss to understand his involvement in this matter. that Further the Petitioner had not asserted that R Wl breached or abrogated any of the provisions of the Electoral Process Act or the Constitution. -J24- Under crbss-examination by Mr. Zimba, RWl stated that he participated in the By-Election that was held on 21st October, 2022 and that the Petitioner's nomination was rejected by the 2nd Respondent. 6.28 There was further cross examination by Mr Chirwa and Daka boarding on various portions of the judgment by Court and the the Constitutional High Court. 6.29 There were no questions by the Respondents in re-examination. 6.30 The 2nd and 3rd Respondents did not call any witness. 7 .0 SUBMISSIONS BY THE PETITIONER 7 .1 At the close of their case, Counsel for the Petitioner filed written submissions. The gist of the argument was that the 2nd Respondent the Petitioner from participating in the election that was held prevented on the 2l5t October, 2022 when he was eligible and that the to participate 1st Respondent participated in an illegal election. 7 .2 They stated that section 98 of the Electoral Process Act provides that:- petition "An election more of the following persons: (a) A person who lawfully may be presented to the High Court or a tribunal by one or voted or had a right to vote at the election to which the election petition relate (b) A person claiming to have had a right to be nominated at the as a candidate election to which the election relates to have been a candidate petition (c) A person claiming to the election to which the election petition relates and ( d) The Attorney General " 7 .3 They submitted that the Petitioner who falls under Section 98 (b) was properly before this Court. Further that for the Petitioner to succeed in the matter, he had demonstrated and discharged the burden of proof to the required standard applicable in election petitions. The cases of -J25- Lewanika and another v Chiluba 5 and Brelsford James Gondwe v Catherine Namuga/a6 were cited in support of this proposition. They argued that the Petitioner had demonstrated in his evidence that the 2nd and 3rd Respondents prevented PW3 who was the 2nd Respondent's him from participating in the By-Election. That agent rejected and/or refused to accept the Petitioners nomination despite being satisfied that the Petitioner complied with all the requirements to contest the By-Election by reason of Article 72( 4) of the Constitution. 7 .4 Taking the argument further, it was submitted that Article 72(2) provides instances which warrant one to be ousted from eligibility to contest an election and that the Petitioner did not fall under any of the instances of the provision. 7.5 It was their submission that the instances in Article 72 (2) provision are the ones that warrant an one to be ousted from eligibility to contest election and maintained their position that the Petitioner did not fall under any of the instances specified therein. 7.6 It was argued that although the Petitioner's election was nullified by the High Court and upheld by the Constitutional Court, that did not warrant the 2nd Respondent to reject the Petitioners nomination the By­ to contest Election. The case of Law Association of Zambia V Attorney Genera/ 4 was cited and further submitted that the decision in that case was rendered on the 22nd March, 2022 before the announcement of the By-Elections or issuance of the notice relating to the By-Election by the 2nd Respondent. Further that in Joseph Malanji and Bowman Chilosha Lusambo V Attorney Genera/1, the Constitutional Court held that nullification of an election does not amount to disqualification to contest the same seat. -J26- 7.7 Referring · to the case of Joseph Malanji and Bowman Lusambo1 , it was argued that the Constitutional Court, upheld its earlier in Law decision Association of Zambia4 where that Court held at page 11-13 that: 72(4) does not specifies from contesting Article clearly person of an election one of them by either which situations It in Article 72(2). apply to all the instances outlined a a vacancy causes or holding that would disqualify public office and nullification an election the High Court or the Constitutional Court is not cannot contest we find that Article "In conclusion persons (2)(a), (b), (c), (d), (g) and (h). These persons whose seats fell vacant an election by virtue 72 ( 4) has specified and these are specified in Article which categories of do not include those members of a nullification of an election. " 7 .8 It was argued that the Petitioner was eligible to contest and that the 2nd Respondent prevented him from filing his nomination on the provision that did not apply to him. Further that the same was done in disobedience of the court's decision that the Petitioner did not fall within the ambit of Article 72(2)(a)(b)(c) (d)(g) and (h) owing to the fact that his seat fell vacant by reason of nullification and not by reasons specified under the said Article. 7. 9 It was further submitted that the Petitioner commenced an action in the High Court but The 2nd Respondent announced that the 3rd Respondent appealed to the Court of Appeal. the date of elections on the 11th October, 2022 when the Stay/ Suspension order was still in force. 7.10 It was then argued that an order of Court is valid unless it is set aside and this position was confirmed by the Constitutional Court in the case of Benard Kanengo V Electoral Commission of Zambia and Attorney Genera/2 wherein the Court stated that: "That stay order had it issued remains Thus, the High Court had to abide or set aside. the Court of Appeal stay order and ran out of time as the 21 days have since expired." and had to be obeyed even though erroneously issued in force until discharged -127- 7 .11 Counsel reiterated that the Petitioner was prevented from participating in the said election and at no fault of his own. In reinforcing this point, he referred the Court to the works of Francis Bennion on Statutory interpretation at Page 876 in which it is stated that unless the contrary intention appears, an enactment by implication imports the principle of the maxim Impotentia Excusat Legem, (the law does not punish a person for not doing what they lacked power to do, or for being in a situation they were powerless to avoid), it is of the very essence of civilised law, that where there is something barbaric done to a powerless person, such person should not be punished and the helpless should not be punished for their very helplessness. 7 .12 They further submitted that the Petitioner was helpless and placed in a helpless situation by the 2nd Respondent who had a duty to conduct elections in a free and fair manner as well as level the playing field for all participants in the election. They argued that Article 229 of the Constitution establish the 2nd Respondent and Act No. 25 of 2016 enjoins the 2nd Respondent with power to conduct elections. However, the 2nd Respondent fell in grave error by conducting elections in the manner that did not reflect the dictates of the provisions of section 4 of the Act and was thus in breach of the statutory duty placed on it by the law. 7 .13 It was spiritedly submitted that the 2nd Respondent took it upon themselves to interpret the Constitution which power they did not have and disqualified the Petitioner. That the power to disqualify a candidate is vested in the Court as can be seen from Article 52( 4) of the Article Constitution. 52 ( 4) provides that: person may challenge, before ( 4) A nomination within seven days the court shall hear the case within twenty-one of the close of nomination days of its lodgment." a court or tribunal, of a candidate the and as prescribed, -J28- 7.14 It was further submitted that the 2nd Respondent contravened the Constitution article particularly 52(6) of the Constitution of Zambia by not cancelling the elections following the resignation of the two independent candidates and call for fresh nominations. 7 .15 It was submitted that Article 52 ( 6) provides for the procedure to relating nominations and that the Constitutional Court proceedings under cause No. 2022/CCZ/0023 were anchored on clause 6. It was thus argued that the resignation of the two candidates were communicated to the Respondent on the 12th and 13th September, 2022 and that Article 52(6) was triggered. It was submitted held on the 2Yh August, nominations that it mattered the not, whether 2022 are and/ or were found to be valid or not, Article 52( 6) requires that the election based on those nominations should be cancelled and fresh nominations ought to have been held forthwith. That however, in breach of Article 5(6) the 2nd Respondent, proceeded to hold the By-Elections notwithstanding the provisions proffered above and in view of the fact that a stay was still in effect as it was not discharged by the court, making the elections held illegal and void. Further that the argument that the two (2) candidates later rescinded their decisions still remains flawed and unattainable following the decision in the case of Isaac Mwanza v Electoral Commission of Zambia and Attorney Generaf where the constitutional court held that: " Where the Constitution the resignation cannot be rescinded. does not provide " for a rescission of a resignation, 7 .16 It was further submitted that the 2nd Respondent proceeded to announce the date of elections when there was a stay. They referred the Court to the Malawian Bank 8 where the Court held that: Supreme Court case of Mu/Ii Brother Ltd v Malawi Savings -J29- "As we understand through particular proceeding the order of a court. within a case." it, a stay is the act of temporarily stopping a judicial proceeding It is a suspension of a case or a suspension of a 7 .17 It was submitted that the 2nd Respondent was obligated to comply with the High Court (?rder which stayed the holding of the By-Elections until it was set aside, discharged or vacated. 7.18 On the effect of preventing a candidate, to the the Court was referred case of Jere V Ngoma9 where the court stated in relation to prevention of an eligible candidate from filing his nomination and contesting m an election that: shows that a candidate "Where evidence by the misconduct returning constituency void". of other persons, officer, such misconduct for elections from lodging essentially his nomination to Parliament was papers with the in the particular prevented, makes the election 7.19 In reinforcing the above argument they cited the case of M/,ewa V Wightman 10 where the Supreme Court of Zambia pronounced on itself this matter and cited with approval the cases of Jere v Ngoma9 and Limbo v Mututwa11 which cases dealt with prevention of a candidate from contesting an election and stated as follows: "Where evidence the misconduct officer, such misconduct void. The election prevented nomination paper". shows that a candidate for election to Parliament was prevented of other persons, from lodging his nomination papers with by the returning constituency essentially makes the election in the particular was nullified under paragraph (a) because by a crowd of people, nothing to do with the respondent, the petitioner had been his from lodging 7 .20 They argued that the Petitioner was prevented his from lodging nomination on account of "Article 72( 4)" by the 2nd Respondent and the action by the 2nd Respondent of preventing the Petitioner was misconduct which must attract the same consequence as that in Jere v -J30- Ngoma9 ahd that the election of the 1st Respondent ought to be declared void on the basis that it was marred with illegality. 8.0 SUBMISSIONS BY THE RESPONDENTS 8.1 In the pr Respondent's written submissions, Mr. Sitali that all submitted the issues contained in the petition had already been litigated and pronounced upon by the Court. 8.2 As regards the Petitioner's position that the 2nd Respondent contravened the law by not calling fresh nomination after some candidates withdrew from the poll, Mr Sitali argued that the allegation was conclusively determined by the Constitutional Court in Peter Chazya Sinkamba and another v Electoral Commission of Zambia3 , where the Court held at paragraph 27 that: mandate when it did not cancel the by-elections Commission of Zambia) did not in the (Electoral the Respondent "In the circumstance, breach its constitutional Kabushi and Kwacha constituencies nominations the Constitution candidates and hold elections within after the resignations in the two constituencies tendered set for JS,, September, thirty days as stipulated by article by the named independent 52(6) of 2022, call for fresh we have stated Based on the reasons the Respondent contravened due to have taken place on JS,, September, Constituencies'' the Constitution above, we decline to grant the declaration that the elections by its omission 2022 in the Kabushi and Kwacha to cancel 8.3 He contended that the question whether or not the 2nd Respondent contravened the Constitution or any law by not calling for fresh nominations following the resignations of the two (2) independent candidates was determined. 8.4 It was Mr. Sitali's further submission that the Petitioner's that position the courts had declared him eligible to participate in the By-Election was not correct. He cited the case of Joseph Malanji and Bowman Lusambo v -J31- Attorney Genera/1 where the Petitioner and Mr Lusambo requested the Court to determine four questions as follows: J. Whether the decision of the Z'd respondent dated 24th august, 2022 is illegal, null and void; 2. Whether the applicants are eligible to contest the Jjlh September, 2022 By- Elections; 3. Whether fresh nominations should be conducted to allow the applicants to participate 4. What is meant by causing in the By-Elections; a vacancy 72 of the Constitution. Article in the National Assembly as stated in 8.5 That the Court in the above judgment dated 7th September, dismissed questions 1, 2 and 3 stating as follows: in Jonas Zimba v Attorney General, for the interpretation which in our view, are contentious to we will proceed of the Constitution to be and require only that question matters, by way of petition. ''In light of our decision deal with and will not consider brought with on their merits as they are not properly " dismissed. The questions that is solely raised in (1), (2), and (3) cannot be dealt before us and are accordingly 8.6 He stated that having already dismissed the question on whether or not the Petitioner was eligible to contest the 15th September, 2022 By­ Election, it was not possible for the same court to thereafter to state that they were eligible to contest the said By-Election. it was Therefore, submitted that the Court was not referring to the Petitioner when it stated that:- "These persons nullification do not include of an election" those members whose seats fell vacant by virtue of a 8. 7 He argued that the Constitutional Court did not declare the Petitioner eligible to contest the 15th September, 2022 By-Election. Further that the decision in the case of Law Association of Zambia v Attorney Genera/ passed on 22nd March 2022 in which the Court distinguished "nullification" did not settle from "disqualification" the Petitioner's eligibility as the Petitioner would not have approached the -J32- Cortstitutional Court four months later on 25th August, 2022 to determine the question of his eligibility. 8.8 As regards the issue of the rejection of the Petitioner's nomination, it was submitted that the same was heard by the High Court which ran out of time and the Petitioner conceded under cross-examination that the 21 days which the High Court was to hear and determine the matter had run out. He stressed the point by referring the Court to the case of Benard kanengo v Attorney General and Electoral Commission of Zambia2 where the Constitutional Court stated that: "... The High Court has jurisdiction the 21 days' time given by the Constitution the two questions court or authority. which jurisdiction must be exercised 52(4). under article 52( 4) cannot be stopped within In sum to answer by any or enlarged the 21 days in article Thus, the High Court had to abide the Court of Appeal stay order and ran out of expired" time as the 21 days have since 8. 9 It was submitted as regards the allegation that the By-election was illegal as the Petitioner was not allowed to participate, that the allegation was settled by the Constitutional Court under cause number 2022/CCZ/0023 where the Court held that decline "We further Respondent invalid Constitution on 25th August, and that any election and are illegal and null and void ... " to grant the declaration 2022 in the Kabushi that nominations and Kwacha constituencies held by the are the held based on those nominations contravene 8.10 As regards the allegation of non-compliance to the electoral time lines which affected the conduct submitted that the Petitioner and outcome of the elections, under cross-examination conceded that the it was question of time affected all the candidates who participated in the elections equally. To stress this point, the case of Anderson Kambela Mazoka and Others v Levy Patrick Mwanawasa and others12 cited with approval in the case of Nkandu Luo and Electoral Commission of Zambia v -J33- Doreen Sefuka Mwamba and Another1 , was relied upon where the Supreme Court Stated that: that there were flaws, incompetency and dereliction of Zambia. This is exemplified supply of Presidential of duty on the part by the late delivery ballot papers in the of "We accept of the Electoral Commission the election complaining voting affected all candidates favoring materials constituencies However, the pt Respondent" and insufficient period. which led to the delays and extension of the gazette in our view, any negative out of these flaws equally and did not amount to a fraudulent impact arising exercise 8.11 In winding allege up the submission, it was stated did not that the petition any malpractice. Citing section 97(2) of the Electoral Act, Process it was argued that the Petitioner is bound by the petition attempt to allege any malpractice, illegality or misconduct against Respondent. The cases of Michael Mabenga v Sikota Wina and Others14 , Akashambatwa Mbikusita Lewanika and Others v Fredrick Chiluba15 , and cannot the 1st Anderson kambela others12 were cited in support Mazoka and Another v Levy Patrick and Mwanawasa of the proposition. Furthermore, that it is the requirement for a petition to succeed under section 97(2) of the Electoral Process Act to allege illegality or malpractice and that the majority of voters were prevented from voting for a candidate of their choice and that the petition did not disclose this fact. 8.12 In the 2nd Respondent written submissions, it was argued that the Petitioner was challenging nomination for election disguised as an election Petition. It was submitted that under the current electoral law regime, specifica lly Section 97 (2) of the Electoral Process Act, a parliamentary election can only be voided or nullified by Court, when the Court finds with "convincing clarity" that: (a) a corrupt practice, illegal practice or other misconduct has been committed in connection with the election - (i) by a candidate; (ii) with the knowledge candidate's election or agent or polling agent; -J34- and consent or approval of a candidate or of that And the majority have been prevented district from electing or ward whom they preferred; in a constituency, the candidate of voters district or ward were or may in that constituency, (h) to the provisions of subsection of this Act relating subject with the provisions appears accordance affected non-compliance to the High Court or tribunal with the principles laid down in such provision or of the election; the result and that such (4), there has been non-compliance to the conduct of elections, was not conducted and it in that the election (c) the candidate person disqualified for election. was at the time of the election a person not qualified or a 8.13 It was argued that the Petitioner ought to have proved any of the three grounds set out in Section in order to have the election 97 (2) of the Electoral Process held on 21st October, 2022 voided or Act cited above nullified by the Court. 8.14 It was further submitted that the process of nominations for members of parliament is prescribed under the Constitution of Zambia as Amended, Electoral Process Act and the Electoral Process ( General) Regulations Statutory Instrument o. 63 of 2016. Thus Article 52 (4) of the Constitution of Zambia empowers a person to challenge the nomination of a candidate under Article 52 (1) and (2). 8.15 Regulation 18 (7) of the Electoral Process (General) Regulations, Statutory Instrument No. 63 of 2016, prescribes the mode of challenging the decision of the returning officer. The said Regulation 18 (7) provides that: "The determination is final unless invalid with Article 52 ( 4) of the Constitution. of the Returning Officer an election through challenged " that a nomination is valid or petition in accordance 8.16 Referring to the Case of Bizwayo Newton Nkunika vs. Lawrence Nyirenda and Electoral Commission of Zambia16 , at pages J64 to J65 the -J35- Constitutional Court guided on the mandate of the 2nd Respondent in relation to Article 52 (2) of the Constitution that:- "The 2nd Respondent's the nomination Mandate was to either based on the qualifications out-rightly accept or reject submitted by the candidate." 8.17 Also in the case of Charles Maboshe vs Steven Nyirenda, Lucy Changwe and Electoral Commission of Zambia17 at , the Constitutional Court guided pages J28 to 29 on the steps for challenging filed in a nomination accordance with Article 52 of the Constitution that 52 of the Constitution with is concerned to for this Court's jurisdiction such as that candidate's whether 52 (1) of the Constitution. nomination the P1 Respondent was It is filed his in line with that sub article supported by an affidavit candidate as as a presidential of a presidential while Article 52(4) provides in casu. To determine the first step is Article "As aforementioned, Article nominations deal with a challenge of the Respondent validly nominated, clear that the J5' Respondent nomination stating stated by the l5' and 3rd Respondents Article paper, qualifications requirements or procedural office. This is also in line with the provisions Act. " Process Officer, that he was qualified for nomination 52(2) provides the Returning paper to the Returning Officer may reject in their Answers to the Petition. for the second step that upon filing a nomination it if the candidate does not meet the specified for election to that 30 of the Electoral of section 8.18 Further that in the case of Munir Zulu v. Gertrude Pili/a Mwanza18 the Constitutional Court held that the jurisdiction of hearing challenges relating to nominations under Article 52 ( 4) lies with the High Court and in the case of George Muhali Imbuwa vs Electoral Commission , of Zambia19 the Constitutional Court stated that in Article "Nowhere Constitutional 52 ( 4) to hear disputes The prescribed nomination disputes election " councillors. relating tribunals courts 52 has the Constitution provided of the Court prescribed for appeals to the Court from decisions emanating or relating to nomination Court for disputes under Article of candidates. to relating are, the Constitutional candidates, of presidential to parliamentary for nomination the High Court for nomination and Local Government relating candidates disputes to election of -J36- 8.19 Als·o that in the case of Bernard and Kanengo v The Attorney General Electoral Commission of Zambia,3 the Constitutional Court held inter alia that:- the High Court has Jurisdiction which jurisdiction under 52 ( 4) ...... Thus, the High Court had to abide the Court of Appeal "Similarly, exercised article stay order and ran out of time as the 21 days have within the 21 days' time frame given by the Constitution since expired." must be 8.20 It was submitted that in the case of Peter Chazya Sinkamba, Isaac Mwanza v Electoral Commission of Zambia3 , the Constitutional Court declined to grant the declaration that the nomination held by the 2nd Respondent on 25th August, 2022 in K wacha constituency were invalid. The Court held inter alia that: to grant the declaration 2022 in the Kabushi that nominations held by the and kwacha constituencies held based on those nominations decline on 25t" August; and that any election "We further Respondent are invalid contravene Court which has jurisdiction nomination pronouncement of candidates to that effect. the Constitution and are illegal to hear matters and null and void as the High of the relating to a challenge has no made a for parliamentary elections 8.21 It was argued that Article 52 of the Constitution provides for the manner and fashion for challen ging the decision of the returning officer at the nomination stage. Thus it is too late in the day for the Petitioner to attempt to challenge his nomination after the elections had been conducted, as the 21 days within which the High Court was supposed to pronounce itself on the validity of the nomination of the Petitioner under cause number 2022/HP/1327 expired. This Court was thus urged to dismiss the action for having been commenced wrongly and for failure to follow the laid down procedures for redress relating to nominations as stipulated under Article 52 of the Constitution of Zambia. 8.22 As regards the allegation of prevention of the Petitioner from Participating in the Kwacha By-Election held on 2isr October, 2022. It -J37- was· submitted that the Petitioner filed his nomination on 25th August, 2022 before the Returning Officer Mr. Brian Mbula (PW3) who rejected the said nomination and gave a reason for his rejection. It was therefore incorrect for the Petitioner to allege that he was prevented from participating in the Kwacha Constituency held on 2Pt By-Election October, 2022. 8.23 The Court was referred to Regulation 18 (7) of the Electoral Process (General) Regulations, Statutory Instrument No. 63 of 2016, which prescribes the mode of challenging the decision of the Returning Officer. It was submitted that rejecting a nomination is not the same as preventing the Petitioner from participating in the election. The Petitioner challenged his rejected nomination in the High Court under cause number 2022/HP /1327. It was therefore submitted that the cases cited of Mlewa v Wightman , Jere v Ngoma9 and Limbo v Mututwa11 which allegedly dealt with from a candidate being prevented participating in an election can be differentiated from the case in casu. 8.24 In the case in casu, evidence filed his shows that the Petitioner nomination paper before the Returning Officer and was not prevented by anyone from doing so. Further, his nomination papers were processed and rejected in accordance with the law. Therefore the Petitioner cannot claim to have been prevented as the law provides for a redress mechanism for someone dissatisfied with the Returning Officers decision. Also that the cases in question were delivered in 1969, 1974 and 1996 respectively before effect the coming into of Article 52 (4) of the Constitution of Zambia, Section 97 (2) of the Electoral Process Act No. 35 of 2016 and Regulation 18 (7) of the Electoral Process (General) Regulations, Statutory Instrument No. 63 of 2016. Thus, the said cases -J38- have since been overtaken by the repeal and amendments that have happened to the various laws. electoral 8.25 It was further submitted that the Constitutional Court has departed from the position taken in the case of Josephat M/ewa v Wightman10 • The wrong doer has to be specifically identified and the 1 stRespondent can only be held liable if the wrong complained of, were done by him or through his appointed agent. Further that it must be demonstrated that the act complained of was widespread or affected of the the majority The 2nd Respondent voters. Kufuka Kufuka V Mundia Ndalamei argued that the Constitutional Court in the 20discounted the Mlewa V Wightman10 case by stating that:- or illegal the proof of one corrupt "We wish to stress by the candidate is generally act is also proved to have been so widespread affected the majority of JOSEPHATE MLEWA V ERIC WIGHTMAN is distinguishable 97 (2) (a) of the Act." the current or misconduct only if that one or that it affected or may have It is to this effect only that the case enough to nullify an election of the electorate. provisions of section practice from 8.26 As regards the allegation of resignation of candidates, it was submitted that the Constitutional Court already pronounced itself on the issues relating to the alleged resignation of candidates in the case of Peter Chazya Sinkamba, Isaac Mwanza v Electoral Commission of Zambia. Further that this Court has no Jurisdiction to deal with the said alleged resignation of candidates. This Court was invited to take judicial notice of the fact that there were Court Cases still pending hearing and determination before the Constitutional Court relating to the resignation and cancellation of elections under Article 52 ( 6) of the Constitution under the following cause numbers: (i) Governance Elections Advocacy Research Services Initiative Zambia Limited vs The Attorney General and The Electoral Commission of Zambia 2022/ CCZI 002ff1; -J39- (ii) Institute of Law, Policy Sinkamba and The Attorney General and Human Rights, Research and Isaac Mwanza vs. Electoral 2022/ /CCZ/002�2 ; and and The Electoral v The Attorney General Peter Chazya of Zambia Commission Chilangwa (iii) Nickson Commission of Zambia 2022/CCZ/0026 • 8.27 In winding up the submission, the 2nd Respondent argued that the Petitioner had failed to prove the allegation of to the acceptable standard proof in election petitions as required by the law and authorities. Further that the alleged allegations did not in any way affect the final outcome of the results. 8.28 In the 3rd Respondent's written submissions, it was argued that the issues raised herein had been litigated and already resolved in Cause No. 2022/CCZ/0023 and Cause No. 2022/CCZ/0024 by the Constitutional Court. Further that the Petition is an appeal disguised as a petition. 8.29 It was submitted that although a petition is not a pleading the role and purpose of pleadings applies to petitions. Referring to the Supreme Court of Zambia' s decision on the purpose in the case of William of pleadings 24 wherein it was held that: David Carlisle Wise V E. F. Hervey Limited purpose serve the useful of defining they give each party distinct and they provide 'Pleadings to be decided; set up by the other; from which the nature of the claim and defence may be easily apprehended." of fact and of law of the case intended to be case a brief summary of each party's the issues notice 8.30 Further, in the case of Christopher Lubasi Mundia v Sentor Motors Limited25 it was held thus: in dispute the matters of pleadings on which the court will have to adjudicate are at variance is to give fair notice of the case which has to be in "The function met and to define the issues order to determine pleadings since the plaintiffs the statement reference having had no correct by Lord Russell of Killowen " As was stated p. 347 in the case of LONDON PASSENGER TRANSPORT BOARD v Where the the case fails amendment be incorrect the parties. in court, actual with the evidence re-cast but the other party will be unable to meet the case and not only will the court record between adduced case is completely thereafter of claim, without notice. as a at of -J40- in the pleadings ... Any departure should be preceded, from the cause of action alleged, or at all events, so that the exact cause of action amendments, or the relief accompanied, alleged, and of being shall form part of the Court's should necessity or 'treated to thereafter to be amended' as amended. arise. Pleadings ' They should be amended should not be record, and be capable MOS CROP: claimed by the relevant claimed relief referred 'deemed in fact." 8.31 Also the case of Bidvest Food Zambia Limited & 4 Others V CAA Import and Export26 the Supreme Court held that parties are bound by their pleadings and as such it was contended that the Petitioner be bound by his pleadings. 8.32 It was submitted that the claims sought by the Petitioner are an abuse of Court Process. Referring the Court to Order 19 rule 19 of the Rules of the Supreme Court of England-White Book which provides that: of the Court"-Para. {l)(d) Confers upon the Court terms powers which the Court has hitherto exercised where there appeared to be "an abuse of the process jurisdiction under its of This term connotes that the process and must not be abused. of the Court must be used the The Court will prevent use of its machinery, and will, in a proper case, summarily "Abuse of the process in express inherent the Court." bona fide and properly improper prevent oppression its machinery in the process from being used as a means of vexation of litigation. and 8.33 Also the case of Bampi Aubrey Kapalasa and Joseph Busenga V the Attorney General, 27 the Constitutional Court in finding the proceedings an abuse of court process stated that: order 18 (1) (d) of the an action on the ground of to what has been provided for in Order power to have broad inherent This is of abuse of process. 18 I 19 I 15 of the to be an abuse of the court, that a court can dismiss In addition d) of the White Book, courts on account "Where there appears White Book provides abuse of court process. 18 rule 19 (10 ( deal with and dismiss actions notes at paragraph in the explanatory succinctly White Book ... it is a duty of, and indeed it is incumbent curb abuse with at the earliest which should parties should process." The abuse must to safeguard of its process. the scarce stated opportunity resources be expended that cases ... we wish to emphasise desist from such conduct which is an abuse of court on deserving judicial be nipped in the bud and dealt to upon, the Court -J41- "Although the Respondent are of the considered of this Court ... raised the issue of res judicata view that this matter is in fact an abuse in its motion, of the process we regarding provisions of the constitutional its mandate in interpreting in matters to do that this Court is the final arbiter in as provided Once the constitutional as it the law. It is therefore not open We wish to emphasise with the interpretation Article 128 of the Constitution Court exercises did in the Dr. Daniel Pule' case, that settles who have contrary personal for parties settled issue in order to get their desired This is what is manifest in this case and such conduct discouraged. to seek to re-litigate or a different outcome. must be strongly jurisdiction. provisions opinions outcome the Court's a should desist Once a matter, provision from such conduct which is or as in this case the of a constitutional that parties We wish to emphasise an abuse of court process. interpretation upon parties bringing issue. Whether understanding Court's large. The underlying litigation. interpretation or not a party has its own grievance of the constitutional provision which is final and binds the parties is settled, this Court frowns or relitigating or a contrary view or what matters is this at and the public of is that there must be finality in issue, the the same issue for interpretation public interest upon, the Court to curb abuse of The abuse must be nipped in the bud and dealt with at the It is a duty of, and indeed it is incumbent its process. earliest be expended to safeguard cases." opportunity on deserving resources judicial the scarce which should 8.34 Also that in the case of BP Zambia PLC V. Inter/and and Motors Limited the Supreme Court stated that: "The administration of justice managed to get conflicting other ... " would be brought decisions or decisions into disrepute if a party each which undermine 8.35 Further that the Supreme Court in Mukumbuta Sam Mukumbuta Mukamamba Kweleka Mubita Mooto Mooto and Another V Nkwilimba Choobana Lubinda Richard Mbikusita Munyinda Rosalyn Mukelabai and Another2- 9 stated that: "There is force in this argument. into ridicule advocates respondents for the respondents. who should he punished The High Court was certainly about by the view, it is not the But in our considered in costs. They are not lawyers by the forum shopping exercise brought brought -J42- 1 themselves. They may not have been following what was going on. On the other hand, their advocates, shopping several respondents resulting High Court Judges. deliberately in the parties twice being before " who should be punished in costs. It is the advocates and consciously went forum this Court and before of the respondents and not the 8.36 As regards the allegation that the elections were illegal and void on the ground that the Petitioner was prevented Kwacha Constituency By-Elections from participating 2022, the Yd of 2l5t October, in the Respondent submitted that there was nothing illegal in the action of the 2nd Respondent's agents to reject the Petitioner's nomination. Firstly, the 2nd Respondent's agent is authorized to either accept or reject a nomination of a candidate as per Article 52(2) of the Constitution which provides that:- in accordance (2) A Returning paper, candidate specified to that office." for election Officer shall, immediately (1), duly reject with clause the nomination on the filing of a nomination paper if the does not meet the qualifications or procedural requirements 8.37 Also that the judgment under cause 2022/CCZ/0018 was after delivered the Petitioner's nomination was rejected. Therefore, since there was no Court pronunciation on the effect of a nullification of a parliamentary seat on the qualification of a candidate the press statement barring candidates whose seats were nullified cannot, be termed to be illegal or a prevention on the part of the Petitioner. Also that the issues surrounding rejection of nominations were already litigated under the Case of Joseph Malanji and Bowman Lusambo V Electoral Commission of Zambia and Attorney Genera/1. 8.38 As regards the allegation that the 2nd Respondent who is the agent of the 3rd Respondent contravened the Constitution Article particularly 52 (6) of the Constitution by not cancelling the elections following the resignation and call for fresh of two independent candidates -J43- nominations, the 2nd Respondent it was argued that the question as to whether the failure by to cancel the K wacha Constituency By-Elections and to call for fresh nominations despite there being a resignation or withdraw by one of the candidates already been settled by the Constitutional for the Kwacha Constituency Court in the Peter Sinkamba had case. 8.39 As regards the allegation that the 2nd Respondent was obligated to comply with stayed the High Court Order which the holding of the by­ elections until it was set aside, discharged or vacated, it was submitted that there was no High Court Order, Stay or suspension of elections in Kwacha and Kabushi constituencies, respectively, under cause number 2022/HP I l 327 subsisting when the 2nd Respondent proceeded to announce the date for elections. Further, that the date for elections was announced on 11th October, 2022 whereas the High Court jurisdiction ceased on 20th September, 2022, a position that was confirmed by the Court in the Case of Bernard Kanengo V Attorney General & Electoral Commission • of Zambia 8.40 Further, that on the 17th October, 2022, the Constitutional Court pronounced itself on the validity of the nominations for the K wacha Constituency that were held on 25th August, 2022. The Court further went on to pronounce itself on the validity of the elections that would be based on the said nominations. To support this position, the judgment in Peter Sinkamba 3 case at paragraph 29 was cited which stated that: to grant the declaration ''[29 J We further the Respondent constituen nominations decline that nominations on 25'" August, 2022 in the Kabushi and Kwacha held based on those and null ... " cies are invalid contravene and that any election the Constitution and are illegal held by 8.41 Therefore, the act by the 2nd Respondent to cause the issuance of Statutory Instrument No. 64 of 2022, was lawful and constitutional as -J44- there was' no stay order in force as the stay order granted under cause number 2022/HP / 1327 was by law no longer in force by effluxion of time. That this position was by judgment confirmed dated 20th October, 2022 under cause number 2022/CCZ/0024 where it held at J20 to the effect that the High Court's jurisdiction and all orders therein lapsed after 21 days, that is, by the 2022. 20th September, 8.42 As regards the argument by the Petitioner that as a consequence of his purported prevention to participate in the Kwacha Constituency, this Court should nullify the elections of 2isr October, 2022 held in Kwacha Constituency the 3rd Resp on dent argued that the cases of Jere Vs Ngoma9 and Mlewa V Wightman the case in casu as the facts are different seeing the that in those cases, 10 cited by the Petitioner, are distinguishable with candidates were prevented from filing nominations based on the misconduct of other people unlike the case at hand where there was no such misconduct on the part of the Respondents. 9.0 PETITIONER'S SUBJ\.1ISSIONS IN REPLY 9.1 In reply, Counsel for the Petitioner, stressed the point that the aggregate of the events outlined in the petition culminates into one issue, that the Petitioner was prevented to participate in an election where the Petitioner was eligible to participate. Thus, the argument by the 3rd Respondent that the petition was at variance with the pleadings was an argument replete with speculation and devoid of merit. 9.2 As regards the argument that the issues in the petition been had already litigated, Counsel argued that the argument was a misapprehension of the facts. He stated that it was astonishing, that the 2nd Respondents were insisting that the Petitioner came to this Court to challenge the nomination and the yct Respondent on the other hand are arguing that this matter is an abuse of court process. He submitted that these -J45- arguments are imaginary and a ploy to mislead the court as no Court had ever dealt with the issue that the Petitioner from was prevented participating in the Kwacha by-elections, where the 1st Respondent emerged duly-elected. 9.3 Counsel for the Petitioner conceded that there was a Petition to relating a nomination and that, the decision of the High Court on such matters is final. Reference was made to the case of George Muhali lmbwae V Attorney General and Electoral Commission of Zambia19 case where the Constitutional Court struck out order IX rule 4 of the Constitutional Court as being unconstitutional. The said provision provided for appeals from a decision of the High Court in election petitions and the Court stated that such procedure was not provided for in the constitution and therefore the provision was unconstitutional. 9 .4 On the other hand, he argued that a cause of action relating to a challenge of an election by way of an election petition arises after the election had taken place. In the present case, the issue of whether fresh nominations ought to have been called or not only arose after the election was conducted without nominations. He stressed the point that the issue of cause of action relating to this petition only arose after the election on the 2l5t October, 2022. He further argued that in the present case, the cause of action was different Peter Chazya Sinkamba case and another from what was determined in the 3. The circumstances of the said case and the reliefs being sought herein are different and that the time of the cause of action is equally different. He stated that it cannot therefore be said to have been determined. Simply put, the issue of whether fresh nominations held on the 2l5t October, 2022 has never been determined before any ought to have been called or not relating to the elections Court in Zambia or elsewhere. It was therefore submitted that this case -J46- was' not ah abuse of Court process, the mode of commencement was not wrong and that no court has ever litigated on the issues. Hence, this court has the jurisdiction to hear this matter. 9.5 In relation to the position that the 2nd Respondent ought to have called for fresh nominations the moment it was in receipt of the notice of resignation by the two candidates, they argued that their submission was anchored of Article on the provisions 52(6) of the constitution which is instructive on providing the judicial guidance in the determination of the issue in so far as nominations are concerned. It was argued that the findings of the constitutional court in the case of Peter Chazya Sinkamha and Isaac Mwanza v Electoral Commission of Zambia, 3 were based on its findings on the fact that there was a stay in effect and that the court observed that a party to a court proceedings is obligated to obey Court orders, unless and until they are set aside, discharged That it or vacated. was thus imperative for the 2nd Respondent to comply with the High Court Order which stayed the holding of the by-elections in the K wacha and Kabushi constituencies on the 15th September, 2022. Further that the Court pointed out that there was a stay from the High Court and another one from the Court of Appeal and under the circumstances the status was to be maintained. made The Court at page 26 of the same judgment this clear. The Court pointed out as follows: to obey Court orders, unless Article or vacated. for the Court to determine "We wish to state at the outset that a party to Court proceedings obligated discharged provision election Respondent of the by-election September, and until they are set aside and makes before the in this case for the to comply with the High Court order which stayed the holding in the Kabushi and kwacha constituencies in issue can be held. It was thus imperative recognises challenges 52 of the Constitution nomination 2022." on I 5th is 9 .6 It was submitted that the High Court proceedings were anchored on clause 4 of Article 52, which provides for an avenue to challenge -J47- nominations. The issue which was subject of determination under cause No. 2022/CCZ/002 was centered on clause 6 of Article 52, regarding the death, resignation or disqualification of the candidate. Hence, the proceedings under cause number 2022/CCZ/002 and 2022/HP/1327 both sought to enforce the constitutional provisions touching on nominations. 9. 7 It was further argued that the proceedings in the High Court, which is the court of competent jurisdiction for proceedings 52( 4), under Article were commenced earlier and pursuant to which an order staying the Kabushi pending and Kwacha by-elections the determination of the nomination challenge was granted on 13th September, 2022. The resignation of the two candidates to the 2nd were communicated Respondent on the 12th and 13th September, 2022 respectively and the Petitioners then Peter Chazya Sinkamba and Isaac Mwanza3 commenced the action under Cause No. 2022/CCZ/002 on 26th September, 2022. 9.8 It was submitted that the Petitioner had no quarrels with the decision of the Court under Cause No. 2022/CCZ/002 that Article 52 of the Constitution recognizes and makes provision for the courts to determine nomination challenges before the election could be held. Hence, the 2nd Respondent was obligated to comply with the High Court order which stayed the holding of the By-Elections until it was set aside, discharged or vacated. They contended that the position is that the above findings entailed that the status quo immediately after the grant of the stay by the High Court was made, it was to be maintained until a court of competent jurisdiction pronounced itself on the status of those proceedings and after which the 2nd Respondent was to proceed to comply with the dictates of Article 52 ( 6), whatever was to be the outcome of the nomination challenge Article 52( 4). That, that was as -J48- result of' Article 52(6) having been triggered by the resignation of candidates after nomination which 1s and before the by-election subsequent to Article 52(4) proceedings. That it mattered not whether the nominations held on 25th August, 2022 were to be found to be valid or invalid by the High Court under the proceedings under Article 52(4), Article 52( 6) requires that the election based on those nominations should be cancelled forthwith. They contended was not supposed to hold elections based on the nominations that the 2nd Respondent of the 25th August, 2022. 9.9 Counsel conceded that Article 52(6) does not provide for a timeframe within which the 2nd Respondent was to cancel the election and the Article 274 states that a function may be performed as occasion requires. Therefore, the 2nd Respondent was also required the to take into account substantive provisions on the timeframes for holding the elections. It was submitted that the 2nd Respondent failed to maintain required. That the 2nd Respondent proceeded quo as the status to set 2l5t October, 2022 as the date for the by-election based on the in the two constituencies nominations of 2sth August, 2022 without first complying with the provisions of Article 52(6). Counsel then invited this Court to take judicial notice of what happened during the 2021 elections in Lusaka Central when a candidate withdrew and fresh nominations were called. It was submitted that the 2nd Respondent acted in disregard of the very High Court stay order it was arguing had constrained it to act in line with Article 52( 6) and whilst being fully aware of the proceedings under cause Number 2022/CCZ/002 wherein the legality of the failure or omission to cancel the election was yet to be determined. 9.10 Based on the above, they submitted that the arguments advanced by the Respondents that the issues in this petition were already litigated, that -J49- the ·petition was an abuse of court process and that this court has no jurisdiction based on the Peter Sinkamba case3 are footless. 9 .11 It was further argued that the Petitioner was declared eligible to re­ contest his seat upon a painstaking analysis of various Court decisions on the issue. Others3° the Constitutional In the case of Joseph Malanji Court upheld the decision of the High Court vs Charles Abel Mulenga and which nullified the kwacha parliamentary seat held by the petitioner. It was submitted that nullification of a parliamentary seat only makes the Member of Parliament loose that seat and it does not mean that a Member of Parliament is equally disqualified to re-contest. Nullification only affects the seat held by that Member of Parliament; it has nothing to do with disqualification of a person himself. It was on this premise that they submitted that when the Constitutional Court made the pronouncement that the petitioner's seat had been nullified, they meant the kwacha Parliamentary seat. Meaning therefore that the Petitioner was not disqualified by virtue of nullification of his seat. 9 .12 Further to demonstrate that the Court declared that the Petitioner was eligible to participate in the By-elections but was prevented, they referred this court to the case of Law Association of Zambia V Attorney Genera/ 4 a decision that was pronounced on the 22nd March, 2022 before the announcement of the said By-Elections or the notice relating to the said By-election was issued and the case of Joseph Malanji and Bowman Chilosha Lusambo V Attorney Genera/ 1, wherein the court held that nullification of an election does not amount to disqualification to re­ contest the same seat. 9.13 Further to the above, it was argued that the unambiguous import of the above pronouncements by the Court was that nullification is not syn6nymous to disqualification and the petitioner in this matter was and is still eligible to contest the kw a cha By-Elections. 9 .14 It was further submitted that the I st Respondents submission that there was non-compliance acknowledged nd by the 2 Respondent in his to the Electoral timelines. That notwithstanding, the failure to acknowledge that only the Petitioner was affected, and an was an affront to justice attempt to mislead this Court. Further that the case of Anderson Kamhela Mazoka and Others v Levy Patrick Mwanawasa and Others12 cited with Approval in the Case of Nkandu Luo and Electoral Commission of Zambia V Doreen Sifuka Mwaha and Attorney General, 13 relied by the 1 t Respondent is distinguishable from the circumstances in this case. That the issue in the Kambela Mazoka case was centred on failure nd by the 2 Respondent herein to deliver ballot papers on time to the respective constituencies and polling none of them was prevented stations where all candidates as is the case in casu. That, that is the reason participated and why the court in condemning Respondent herein stated that the nd the 2 negative impact arising out of these flaws affected all candidates equally because they were all participants. In this case, the petitioner was affected unilaterally as he was prevented from participating in the kwacha by-election as a result Respondent's conduct. Further nd of the 2 that, even if they were to assume without nd by the flaws of the 2 candidates were equally that the 1st Respondent affected submitted conceding that all the Respondent, they has failed lamentably both, in his Answer and submissions to demonstrate to the Court how negatively the nd flaws by the 2 Respondent affected him and the damage he suffered as a result of the alleged negative flaws. 9.15 In winding up as regards the position that the Petitioner's does Petition not allege any malpractice, illegality or misconduct on the part of the I st -J51- Respondent, before this It was argued that the issue for determination Court was that the Petitioner was prevented from participating in an election and that the pt Respondent participated in a void election. Hence, the 1st Respondent is a product of an illegality as such he cannot validly hold the kwacha Parliamentary that seat. It was submitted preventing a candidate from participating in an election is proscribed and not allowed by the law and makes that particular election void. Also that in the case of Mlewa v Wightman9 , the Supreme Court cited with approval the cases of Jere v Ngoma10 and Limbo v Mututwa11 which cases dealt with prevention of a candidate from contesting an election. Further that despite the facts from the case cited hereinbefore, being different from those in casu. The fundamental principle is that prevention of a candidate from lodging his nomination paper, void. makes an election 10.0 ANALYSIS AND CONSIDERATION BY THE COURT 10.1 I have considered the allegations in the Petition together with the averments in the Affidavit verifying the facts, Answer the Respondent's to the Petition affidavits and the respective in opposition. I have also considered the detailed written arguments advanced in the respective submissions and the authorities cited therein by the Learned Counsel for the parties in this matter. 10.2 However, before, I proceed to consider the petition, there are issues which I find to be profound and need to be addressed at this stage. These issues are that, Firstly, whether or not the Petitioner has locus standi to file this petition as the same was raised in this petition. My brief reaction to the said issue is that, I have observed that Section 98 of the Electoral Act Process enjoins a person who lawfully voted or had a right to vote at the election -J52- to which the election petition relates or a person claiming to have had a right to be nominated as a candidate or elected at the election to which the election petition relates to present to the High Court an election petition. This entails that the Petitioner being a person claiming to have had a right to be nominated as a candidate at the election in issue herein is rightfully before this Court. 10.3 Secondly, there have been arguments raised by both parties surrounding the issue of whether or not a petition is a pleading. Whilst the 3rd Respondent conceded in its submission that a petition is not a pleading, Counsel for the 3rd Respondent went ahead to state that the role and purpose of pleadings apply to petitions. That, to this effect the Petitioner must be bound by his pleadings and thus restrict himself to what is pleaded in the petition. In response, Counsel the Petitioner's submitted that the purpose of pleadings do not apply to petitions and that the 3rd Respondent's submission on this aspect was a ploy to mislead the Court. 10.4 I do agree with both Counsel that, it is trite is not a law that a petition pleading. This position was reaffirmed by the Supreme Court in the case of John Sangwa V Nkonde31 . In the said judgment the Supreme Court at J40 opined that Order 18 sub rule 2 specifically states that "A pleading does not include a petition. Order 18A of the White Book provides that:- is a party's ''A pleading his claim or defence, a petition, include written for of the facts on which he relies does not as the case may be. The term ''pleading" statement summons or preliminary act. 10.5 As regards that:- provides the contents of a petition Order 9 rule 2 of the White Book "Every petition the head of the page and must include must be printed or embossed by an Officer of the Court at a concise statement o the nature o -J53- , the claim made or the relie or remed re uired in the proceedings begun thereby (underlying is for emphasis)" 10.6 It thus follows, a concise that although a petition is not a pleading it must contain statement of the nature of the claim, the relief and remedy required. A petition therefore despite not being a pleading is still subject to rules of evidence. Thus, even in Petitions matters which are not pleaded can only be taken into account by the court in determining issues if not objected to and thus placed on record by a party. This is fortified position Anderson by the holding Mazoka & Others V Mwanawasa of the Supreme Court in the case of and Another12 wherein when dealing with a presidential petition the Court stated that: is let in evidence "In case where any matter not pleaded other side, the Court is not and should not be precluded to by the and not objected from considering it. " I believe the converse applies even in election petitions that where a matter is not pleaded and objected to, it must not be placed on record and consequently cannot be taken into account by the court in determining issues. It was thus imperative the that in the matter herein Petitioner restricted himself to issues as outlined in the petition and that is�ues not pleaded would only be placed on record and considered by the Court if not objected to by the Respondents. 10. 7 This election petition has been brought pursuant to Section 97 (1) (2) (b) and (4) of the Electoral Process Act. The said provisions are couched as follows: 97. (1) An election of a candidate or Councillor council chairperson under this part election presented petition as a Member of Parliament, shall not be questioned except by an mayor, (2) An election of a candidate Counsel Chairperson or Councilor petition, it is proved to the satisfaction he that:- the case may as a Member of Parliament, Mayor, shall be void i,f; on the trial of an election of the High Court or a tribunal, as -J54- , (b) subject compliance elections, not conducted provisions to the provisions with the provisions of subsection of this Act relating and it appears to the High Court or tribunal (4), that there has been non­ of was to the conduct that the election laid down in such in accordance with the principles the result affected and that such non-compliance of the election; shall not be declared officer in breach of that officer's void by reason of any act or official duty in ( 4) An election omission connection the election provisions of that election. by an election with an election if it appears was so conducted of this Act, and that such act or omission as to be substantially to the High Court or a tribunal that with the in accordance did not affect the result 10.8 Core to this Petition therefore, 1s Section 97(2)(b) of the Electoral Process Act. In the case of Nkandu Luo and another, V Doreen Sefuke Mwamha and Attorney , the Constitutional Genera/1 Court stated that: "Section disputes" 97(2) (b) of the Electoral Process Act is central to the electoral 10.9 The import of Section 97 (2) (b) was also addressed by the Constitutional Court in the case of Dean Masule V Romeo Kangombe32 that:- Article to the conduct of elections in the Electoral with the provisions 97(2) (b) addresses acts of non-compliance of seems to suggest that it 229 (2) (b) of the .... the provision of elections. as amended by Act No. 2 of 2016 vests power to conduct of Zambia. If that is accepted, to the discharge during an election. "Section the Act in the conduct specifically relates Constitution Commission elections (b) relates follows that section 97(2) Commission functions somehow made clear by the fact that Section subsection to Act or omission relation of an election " ...... is to void due in officer in breach of his official duties of the Electoral This position 97 (2) (b) is subject will not be declared (4) which provides that an election of the election to the conduct of Zambia's it IO. IO The Constitutional Court further guided in the case of Giles Chomha Yamha Yamha V Kapembwa Simhao and Others33 that:- "It is unequivocal provisions of elections principals elections elections?" that Section 97(2) (b) relates to non-compliance with the of the law in the conduct of elections. It calls for the annulment in the event that there has been non-compliance Act in as far as the conduct who has conduct laid down in the Electoral is concerned. The question then arises, Process of of with the -J55- , The answer, in our view, lies in Article 229 (2) (b) of the Constitution it reads: shall ... (b) conduct Commission the Constitution (2) the Electoral "thus, the Electoral concerns non-compliance Commission candidates to an election Commission expressly gives the function .. Section of Zambia (ECZ) to the provisions of Zambia, the body charged or their agents. " elections to conduct and referenda elections to 97 (2) (b), therefore, of the Act by the Electoral with the conduct and not the 10.11 Further in the case of Austin C. Milambo V Machi/a Jamba3 \ the Constitutional Court guided that:- "Section Electoral 97 (2) (b) of the Act relates Commission of Zambia. " to the conduct of elections by the 10.12 In addition, in Margaret Mwanakatwe V Charlotte Scott and the Attorney Genera/35 , the Constitutional Court equally guided that: "Section 97 (2) (b) relates to non-compliance with the provisions in issue and that the non-compliance of the Act in has affected the conduct the election of the election result" 10.13 It is therefore, trite law that Section 97 (2) (b) of the Electoral Process Act relates to the discharge of the 2nd Respondent's functions an during election and how that conduct by the 2nd Respondent affected the election results. 10.14 At this point I also wish to remind myself that in election Petitions, the applicable standard of proof is higher than a mere balance of probability applicable in ordinary Civil Cases. The Constitutional Court aptly explained this in the Bowman Lusambo V Bennard Kanengo & Election Commission of Zambia36 Case. The Constitutional Court also echoed the same position in the Nkandu Luo V Doreen Sefuke Mwamba13 case when it stated that the standard of proof in Election Petitions is higher than the balance of probabilities but less than beyond all reasonable doubt and that the trial court must be satisfied with credible and cogent evidence -J56- which a Petitioner must prove to a fairly high degree of convincing clarity. 10.15 In determining the issues raised in this Petition, I shall therefore be guided by the positions of the law as illustrated above. 10.16 As indicated above, the Petitioner alleges that the 2nd Respondent contravened the law based on six (6) grounds that there was: (a) Non-compliance by the 2nd Respondent to provisions prohibiting contest any person as a candidate as conferred by the Act to eligible from preventing the Petitioner of the Electoral to exercise candidates; Act Process his right to (b) Non-compliance by the ?d Respondent by the Statutory High Court as a Court of competent action issued and void and an election null and void,· Instrument conducted to stay I suspension jurisdiction by the under this Act renders the null on the 12th October order issued 2022 illegal, under an illegal and void order is illegal, (c) Non-compliance 52( 4) affected Article by the 2'1d Respondent to electoral timelines provided under the conduct and result of the election; (d) The Returning Officer of the Z'dRespondent of Zambia by rejecting as unsuccessful by the Constitutional Constitution nominations Constituency having met the qualifications election offices. to their respective because violated and declaring Article that the Petitioner's 70(1) of the his election Court of Zambia despite was nullified for the kwacha the Petitioner and procedural requirements specified for an (e) By not calling after the decision and thereafter for fresh nominations by the candidate that withdrew from the poll which was made to the Chief Electoral Officer in the employ of the 2nd communication communication Respondent. (I) Calling for elections without the nominations of the Petitioner being allowed by their right to participate in the said elections agent the returning officer in this case from Petitioners which right was subsisting the 2''d Respondent's against at the time. 10.17 My firm view is that based on the foregoing grounds, the Petition raises two cardinal questions for determination being: 1. Firstly, Whether or not there was non-compliance Process Electoral Constituency Section on the Copperhelt 97 (2) (h) of the Electoral Province held on 21 ' October, Act. Process Act relating to the conduct with the provisions for Kwacha of the by-election of the 2022 as provided by -J57- 2·. Secondly, if the answer to the foregoing affected the results question of the by-election is in the affirmative, then, whether this Court to to warrant or not that conduct find the said by-election to have been null and void. 10.18 In answering the two central questions posed above, I shall consider five (5) peripheral questions based on the above six (6) grounds which the Petitioner has relied on to prove that the 2nd Respondent contravened the law. I, however, find grounds (a) and (d) relied upon by the Petitioner to be interlinked as they both relate to the first issue of prevention of the Petitioner to file his nomination. In determining the same, therefore, I shall tackle the said grounds together. The five (5) peripheral questions are as follows:- (I) Whether the Petitioner Kwacha By-Election was prevented held on 2JSf October, 2022. by the 2nd Respondent to participate in the (2) Whether the statutory instrument 2022 was illegal, null and void as a result the High Court in cause No. 2022/HPI 1327. issued by the ?d Respondent on 11'" October, of the stay I suspension order issued by (3) Whether the 2'1 d Respondent did not comply to the electoral time lines as provided under Article 52 ( 4) of the Constitution of Zambia. (4) Whether or not the Returning Officer of the 2nd Respondent violated the Petitioner' Article 70(1) nomination of the Constitution unsuccessful on the basis that his election and declaring was nullified by rejecting (5) Whether or not the failure the resignation by-election held on 2J5' October, 2022 null and void. by the 2''d Respondent to conduct fresh nominations after of the independent candidate rendered the Kwacha Constituency 11.0 WHETHER THE PETITIONER WAS PREVENTED BY THE 2 RESPONDENT FROM PARTICIPATING THE KWACHA BY-ELECTION HELD ON 21 sT OCTOBER, 2022. AS A CANDIDATE IN 11.1 I have considered the submission by Counsel for the respective parties on this allegation of contravention of the law. The thrust of the Petitioners argument in support of this allegation was that there was non­ compliance by the 2nd Respondent to the provisions of the Electoral Process Act when it prevented the Petitioner, who was eligible to -J58- exercise his right to contest as a candidate in the K wacha by-election, from filing his nomination The Petitioner argued that he was papers. but that the 2nd Respondent eligible to contest prevented him from filling his nomination on the basis of article 72( 4) of the Constitution. Both PWI and PW2 produced document of the marked "P2" as evidence prevention. 11.2 The crux of the pt Respondent's argument in response was that the 2nd Respondent acted within its powers or authority to reject the Petitioners nomination was papers on the basis that the Petitioner's election nullified as the Court had not at that point interpreted the effect of nullification of an election on the validity of a candidate's nomination. 11.3 The kernel of the 2nd respondent's argument is that the Petitioner's nomination was merely rejected and that he was not prevented in filling in his nomination as he actually presented his documents to the Returning Officer. 11.4 The thrust of the 3rd Respondent's argument was that on this allegation the 2nd Respondent was within its powers to reject the Petitioners nomination as the 2nd Respondent is empowered under article 52(2) of the Constitution to reject a nomination paper. 11.5 To ably determine the above question, it is imperative first to define the word "prevention". The Electoral Process Act does not define the word prevention. The authors of dictionary of English define "prevention" in the following terms: "The act of hindering, obstmction of action or impede" 11.6 The authors of the Pocket Oxford Dictionary & Thesaurus, z,d Edition defined the word prevent as follows: "Stop something from happening or someone from doing something" -J59- 11. 7 From the above definitions, the question therefore is was the Petitioner hindered, obstructed or impeded by the 2nd Respondent in filing his nomination. In other words, was the Petitioner stopped from filing his nomination documents? It is trite law that in election matters, like any civil actions, the burden to prove allegations complained of rests with the Petitioner, The petitioner testified that on 25th August 2022, he went to River Rain nomination center where he presented his papers as per requirement together with the prescribed number of people and fees. It agent Mr. that the 2nd Respondent's was also the Petitioner's evidence Brian Mbula (PW3) went through the documents with and was satisfied the documents presented to him. This evidence was corroborated by the Petitioner's own witness PW2 who gave a vivid account of what transpired on nomination day. He testified that he escorted the petitioner to River Rain nomination Centre. The 2nd Respondent's Returning Officer, PW3 told the Petitioner to give him documents and guided the petitioner the documents he wanted. The Petitioner was later taken to a he signed camera where his image was captured; and paid the prescribed fees. Further that the Petitioner's supporters had their voter's cards verified. PWI and PW2 both testified that the Returning then Officer, rejected the Petitioner's nomination and that as he did so, the Nomination Officer, gave the Petitioner a document marked "P2". 11.8 I have examined the contents of the document marked "P2". It states that: " I have re ·ected as invalid full name Malanji Joseph, constitution" (underlying for emphasis) the nomination reason for rejection papers of the following based on Article (i) candidate 72( 4) of the 11.9 I find that the Petitioner's own evidence place and that of his witnesses the Petitioner at the scene of the nomination without any hindrance, -J60- obstruction or impediment by the 2nd Respondent or any other person. The 2nd Respondent did not stop the Petitioner from filing his nomination documents. 11. I0The words used by the 2nd Respondent on the document marked P2 are "rejected" as invalid. The word rejected in ordinary parlance means decline. The authors of the Pocket Oxford Dictionary & Thesaurus, 2nd Edition define the word "reject" as to: "Refuse to accept" II. II I am therefore of the considered view that the words "prevention" and "rejected" connote two different actions and are distinct. I Furthermore, am of the view that the case of Jere v Ngoma9 cited by the Petitioner in support of his allegation that the Petitioner was prevented from filing his nomination is distinguishable from the facts and evidence in this petition. The facts in Jere case are that Mr Wingford Kaliza Jere, who had intended to put himself forward as a candidate for the African National Congress Party for the Chi pa ta West Constituency at the General Election, petitioned for a declaration that the election be declared void on the ground that he, the petitioner, by the was prevented supporters of his opposing candidate, Mr John Chiponda Chisamba Peterson Ngoma, from duly lodging his nomination papers on nomination day, namely 26th November, 1968. 11.12 In the current case there is no evidence showing that the Petitioner was prevented or stopped from filing his nomination documents by any of the Respondents or their supporters but that his nomination was rejected by the 2nd Respondent. As argued by the 2nd Respondent, the law under Article 52(2) of the Constitution and Regulation 18 (7) of the Electoral Process Act, Statutory Number 63 of 2016 allows the 2nd Respondent upon filling of the nomination to either accept or reject by a candidate -J61- the nomination, of course stating the reason for doing so. If not satisfied with the rejection, the candidate can then challenge the rejection by filling process in the High Court a right that PWl exercised under Cause No. 2022/HP/1327. However the court ran out of jurisdiction to hear and determine the matter within the period prescribed (21) of twenty-one days. 11.13 Based on the foregoing analysis, it is therefore my finding that there no merit in the allegation that the Petitioner was prevented his from filling nomination. 11.14 I now tum to the second allegation of contravention of the law by non­ compliance by the 2nd Respondent to the stay/ suspension order issued by the High Court thus rendering Statutory Instrument issued on 12th October, 2022 illegal, null and void and the election conducted under it void. BY THE 12.0 WHETHER THE STATUTORY INSTRUMENT ISSUED 2 ° RESPONDENT ON 11TH OCTOBER 2022 WAS ILLEGAL NULL AND VOID AS A RESULT OF THE STAY/SUSPENSION ORDER ISSUED BY THE HIGH COURT IN CAUSE NO. 2022/HP/1327 12.1 The thrust of the Petitioner's argument is that the under this allegation 2nd Respondent announced the date of elections on the 11th October, 2022 when the stay I suspension order was still in force. 12.2 I must state from the outset that the Petitioner contradicted himself in his evidence in Court on this allegation. On one hand the Petitioner testified in cross-examination that the notice of election slated for 21st October 2022 was issued on the 11th October, 2022 after the 21 days had lapsed. On the other hand he testified in cross-examination that the -J62- announcement of the date of election of 21st October, 2022 by the 2nd Respondent was done before the judgment of the Constitutional Court and thereby before the discharge of the stay suspending elections. 12.3 The evidence on record indicates that the Petitioner filed process challenging his nomination in the High Court under cause No 2022/HP/1327 on the 30th August, 2022. Following September, 2022, the High Court granted a stay suspending this, on 13th the 15th September, 2022 by election. The proceedings in the High Court were later stayed by the Court of Appeal on the 16th September, 2022. The twenty-one (21) days period provided by the Constitution in which the proceedings in the High Court challenging nomination concluded thus expired on the 20th September, 2022. were to be The 2nd Respondent issued the Statutory Instrument on the 11th October, 2022. 12.4 Consequently, the twenty-one (21) days having lapsed on 20th September, 2022, from this date onwards there was no stay as the action had been terminated by the effluxion of time. I say so because I do not see how the stay would remain in force when the matter under which it was issued has been dismissed due to lapse of time. This position is also in line with the holding of the Constitutional Court in the case of Bernard Kanengo V The Attorney General & The Electoral Commission of Zambia2 wherein the Court held as follows:- the Court with no discretion to the Court hearing to enlarge "The use of the word 'Shall' in relation (21) days, leaves prescribed Hichilema of the Presidential follows: time of twenty-one on the import of Articles Election Petition (21) days. We elucidated 101 (5) and 103 (2) which provides within fourteen (14) days of its filling, as the case in twenty-one time to go outside in the case of Hakainde for hearing the 101 (5) and 103 (2) of the Constitution As Article Election Petition Presidential petition hear a Court cannot competently limit the period within which a (14) days the must be heard by the Court to fourteen outside this period ........ . -J63- • , . . . . . . where the time for hearing the petition bound to enforce the time limit. This means that if this Petition (14) days period, were to be " will be a nullity. the proceedings Court is heard outside the fourteen is limited by the Constitution, the that: Furthermore of the Constitution The purposive approach to the interpretation this case as the time frame for the hearing terms. As Article 101 (5) and 103 (2) of the Constitution which a Presidential days, the Court cannot competently position limited is that the petition lapsed. for its hearing must be heard by this Court to fourteen (14) outside hear a petition for want of prosecution is stated limit the period within stood dismissed of the petition does not assist this period. Our when the time petition election in in mandatory challenge When a nomination concluded Hakainde nomination If anything, the time being limited handled. within twenty-one Hichilema challenge Article is limited case is that the twenty-one is properly (21) days. Additionally, before the High Court it should -be in the by the Constitution our decision (21) days for hearing and it does not stop running. appeal on nominations challenge hence a 52 ( 4) does not envisage to twenty-one (21) days as those cases are to be expeditiously 12.5 Based on the foregoing, I come to the inescapable conclusion that the allegation that there was non-compliance by the 2nd Respondent to the stay I suspension by the High Court rendering the Statutory Instrument issued 2022 has no merit. order issued on 12th October 12.6 I now tum to the third allegation that there was non-compliance by the 2nd Respondent to the electoral timelines provided under Article 52(4) which affected the conduct and result of the by-election. 13.0 WHETHER THE 2ND RESPONDENT DID NOT COMPLY TO THE ARTICLE 52 AS PROVIDED UNDER ELECTORAL TIMELINES 4 OF THE CONSTITUTION OF ZAMBIA. 13.1 Article 52 ( 4) provides that: ''A person may challenge, of a candidate hear the case within 21 days of its lodgment" within seven days of the close of nomination and that the court shall before a Court or tribunal, as prescribed, the nomination 13.2 In relation to this allegation the Petitioner did not lay any evidence as regards how the 2nd Respondent allegedly did not comply with the -J64- electoral timelines neither did he argue the allegation to a fairly ♦ convincing clarity. 13.3 Therefore, my short response on this allegation is that Article 52(4) of the Constitution relates to a challenge of a nomination before the High Court in the case of parliamentary election. This has to be done within days of the close of filing nomination and the High Court has 21 days to hear and determine the matter. In the current case, the Petitioner did file his nomination challenge in the High Court on 30th August, 2022 after his nomination was rejected by the 2nd Respondent. T_he High Court stayed or suspended the elections on 13th September, 2022 and consequently the elections slated for 1 sth September, 2022 were not held or conducted by the 2nd Respondent. 13.4 What I note from the above analysis is that none of the timelines indicated in Article 52( 4) relate to the 2nd Respondent. To the contrary, the same relate to the Petitioner and the High Court. Furthermore, the High Court having granted a stay of the elections, there was no breach of the timelines provided under Article 52( 4) and no prejudice was occasioned on the Petitioner. 13.5 In addition, it must be borne in mind that for this court to find the by­ election null and void in casu under section 97(2)(b ), the section under which the herein petition was brought, the contravention of the law must be against the Electoral Petition Act and not the Constitution. Furthermore, even if that was not the case, the Electoral Act, Process section 97( 4) provides that an election shall not be declared void if it appears to the High Court that the election as to be was so conducted substantially in accordance with the provisions of the Electoral Process Act, and that the act or omission did not affect the result of that election. As earlier stated no evidence was adduced by the Petitioner to show how -J65- substantially the 2nd Respondent did not follow the electoral timelines or ♦ . how the omission affected the election results. It is, therefore, my finding that the allegation of non-compliance to the electoral timelines equally has no merit. 14.0 WHETHER OR NOT THE FAILURE BY THE 2ND RESPONDENT TO CONDUCT FRESH NOMINATIONS AFTER THE RESIGNATION OF THE INDEPENDENT CANDIDATE RENDERED THE HELD ON 21 sr OCTOBER, 2022 NULL AND VOID KWACHA CONSTITUENCY BY-ELECTION 14.1 I have taken judicial notice, as submitted by the 2nd Respondent, that there are Court cases pending hearing and determination before the Constitutional Court relating to this allegation on the failure by the 2nd Respondent to cancel the election and call for fresh nominations as indicated under Article 52 (6) of the Constitution following the resignation of the independent candidate. The said cases are Governance Elections Advocacy Research Services Initiative Zambia Limited V The Attorney General and The Electoral Commission of Zambia 2022/CCZ/00202 1, Institute of Law, Policy Research and Human Rights, Peter Chazya Sinkamba and Isaac Mwanza V Electoral Commission of Zambia, The Attorney General 2022/ I CCZI 002fJ22 and Nickson Chilangwa V The Attorney General and The Electoral Commission of Zambia 2022/CCZ/00262 • I have had sight of the above cases. 14.2 In the case of Governance Elections Advocacy Research Services Initiative Zambia Limited V The Attorney General and The Electoral Commission of Zambia21 , the issues for determination by the Constitutional Court are inter alia:- 1. Whether Article 52(6) of the Constitution of Zambia is applicable where an independent candidate in a Parliamentary election withdraws -J66- after the close of nominations and before the his/her election candidature date; 2. Whether, under Article Process the Electoral Zambia is obligated when an independent close of nominations but before 52 (6) of the Constitution and Section 31 (2) of of Commission Act No. 35 of 2016, the the election to cancel Electoral and call for fresh nominations candidate withdraws from the election date; the election after the 14.3 In the case of Institute of Law, Policy Research and Human Rights, Peter Chazya Sinkamba and Isaac Mwanza V Electoral Commission of Zambia22 the issues for determination by the Constitutional Court are inter alia :- 52(6) of the Constitution to the effect that he I she cannot rescind of such a resignation their has effect of Article candidate and the purported 1. An interpretation where an election resignation on the operation 2. A declaration nominations and has no option other than cancelling fresh nominations; of the said Article that whenever resigns, rescission 52(6); and before the date of an election, a candidate after close of resigns the Respondent is bound and conducting an election 3. A declaration nominations Court proceedings have had lapsed and conduct that Respondent in Kabushi and Kwacha Constituencies was obliged to cancel fresh had lapsed or declared by effl.uxion of time on 2[Jh October, 2021,· by the Constitutional when the High Court to 14.4 In the case of Nickson Chilangwa V The Attorney General and The Electoral Commission of Zambia23 the issues for determination by the Constitutional Court are inter alia. 1. Whether under Article 52 (6) of the Constitution Act) number 2 of 2016 after the withdrawal By­ candidates and K wacha Parliamentary (Amendment independent Elections to conduct from Kabushi the Electoral Commission or not; fresh nominations of Zambia has a discretion whether of Zambia of two (2) 14.5 It is thus clear that indeed the issue of failure to call for fresh nominations by the 2nd Respondent upon the resignation of the independent candidate is currently pending determination by the Constitutional Court. I therefore decline to make any determination on -J67- the issue -as it is already pending determination by the Constitutional Court, a court superior to the High Court. 15.0 WHETHER OR NOT THE RETURNING OFFICER OF THE 2ND RESPONDENT VIOLATED ARTICLE 70 1 OF THE CONSTITUTION BY REJECTING AND DECLARING THE PETITIONER'S THAT ms ELECTION w AS NULLIFIED. NOMINATION UNSUCCESSFUL ON THE BASIS 15.1 The Petitioner alleged that the Returning Officer of the 2nd Respondent violated article 70(1) of the Constitution by rejecting and declaring the Petitioner's nomination unsuccessful on the basis that his election was nullified. 15.2 My considered view is that the Returning Officer is empowered under Article 52(2) of the Constitution and Regulation 18 (7) of the Electoral Process Act, Statutory Number 63 of 2016 to, upon the filing of the nomination by a candidate, to either accept or reject the nomination. The Returning Officer's decision is final unless challenged through an election petition under Article 52( 4). In the current case, the Petitioner had an opportunity and actually challenged the decision of the Returning Officer in the High Court under cause number 2022/HP / 1327. Therefore, the Petitioner cannot at this stage again allege that the Returning Officer violated Article 70 (1) of the Constitution by rejecting and declaring his nomination unsuccessful This post-election period. Court does not and cannot assume jurisdiction to determine the said allegation of the Returning Officer violating Article 70 (1) by rejecting and declaring the petitioner's nomination unsuccessful on the basis of want of jurisdiction. Am fortified in saying so by the Supreme Court's of Aristogersimos Vangelatos and Another v Metro Investment Ltd decision and Three Others37 citing Halsbury's at 715 that: -J68- "Where a Court takes it upon itself to exercise not possess before its decision is given n amounts to nothing. judgment a jurisdiction which it does must be acquired Jurisdiction 15.3 My firm view is that the High Court has no jurisdiction under Article ( 4) as evidenced by regulation 18 (7) to entertain petitions regarding rejection by the Returning Officer of nomination papers of candidates for elections, post-election polls. 15.4 Regulation 18 (7) in my view was apparently enacted to prescribe the manner in which and stage at which rejection by the of nomination Returning Officer can be challenged. It follows by necessary implication from the language of the regulation 18 (7) that a challenge of rejection of nomination cannot be challenged in any other manner, at any other stage and before any other Court other than the High Court within seven (7) days of the decision of rejection of the nomination paper and the High Court must decide within twenty of the (21) days of the filling election petition challenging the rejection of the nomination paper by the Returning Officer. As was held by the Constitutional Court in the case of Zamhia19 the decision of George Muhali Imhuwa V Electoral Commission of the High Court cannot even be appealed against. 15.5 I therefore dismiss the above allegation for lack of jurisdiction as the same ought to have been determined by the High Court at nomination. In fact, this allegation must not even have been raised in this petition as section 97 (2)(b) relates to contravention of the Electoral Process Act and not the Constitution. On this position I am fortified by the holding of the Constitutional Court in the case of Giles Chomha Yamba Yamba V Kapembwa Simbao and Others33 where the court held that: "It is unequivocal that Section provisions elections of the law in the conduct in the event that there has been non-com liance with the 97(2) (b) relates of elections. to non-compliance It calls or the annulment with the o -J69- e dow� in the Electoral mine) (emphasis Process Act in as far as the conduct of elections is concerned. 15.6 Having found that all of the Petitioner's allegations the have no merit, second question whether or not the 2nd Petitioner's conduct affected the results of the by-election to warrant this Court to find the said by-election to 'laNe been null and void is rendered otiose. 15. 7 On the totality of the evidence before me, I find that the Petitioner has not provided this Court with credible and cogent evidence to prove to a fairly high degree of convincing clarity did not that the 2nd Respondent Process comply with the provisions of the Electoral to the Act relating conduct of the by-election held on 2ist October, Province 2022 and that the election was not for Kwacha Constituency on the Copperbelt conducted in accordance with the principles laid down in the said provisions to warrant this Court to find the said by-election to have been null and void. 16.0 ORDERS OF THE COURT 16.1 In view of the above the Petitioner's reliefs in this petition therefore fail and the petition is dismissed. 16.2 Since election petition are of public interest, I order that each party bears its own costs. 16. 3 Leave to appeal is hereby granted. Delivered at Kitwe this 24th day of January, Zulu C. Chinyanwa HIGH COURT JUDGE -J70-