By Isaac Mwanza
In view of the substantial amendments to the Zambian Constitution in 2016, it followed logically that the prescribed affidavit for a presidential candidate would itself be altered in order to take into account the latest amendments to the Constitution.
The 1996 Amendment had for example, a parentage clause which required a presidential candidate’s parents to have been Zambian by birth or descent. The 1996 affidavit for a presidential candidate had paragraphs reflecting the same. This affidavit was in use from 1996-2015.
The 2016 Affidavit form which came into being through Electoral Process General Regulations, Statutory instrument No. 63 of 2016 dropped some paragraphs which were in the 1996 a Affidavit but were no longer in the Constitution as amended in 2016.
The 2016 affidavit for a presidential candidate also added some new paragraphs which were not part of the 1996 affidavit and were not required by the Constitution as amended in 1996. An example is the declaration of assets and liabilities.
However, the only difference between the 1996 and 2016 affidavits that has even resulted into a Constitutional Court petition is the dropping in the latter of a paragraph which provided that:
“That I have not twice been elected as President.”
This has led some people to wrongly assume that the dropping of the above paragraph was aimed at preventing a challenge of President Lungu’s nomination to recontest the forthcoming General Election this August for his second and last term. Such an assumption only demonstrates a lack of understanding of the effect of the 2016 Amendment on the issue of twice having been elected as President.
Under the 1996 Amendment, there was no express qualification (proviso or rider) for a presidential candidate to run for a third election without violating the two-term limit clause.
Under the 2016 Amendment, it is now possible for a presidential candidate to be elected more than twice without violating the provision on twice having been elected.
It follows that the paragraph which appears in the 1996 affidavit cannot exist in that exact form in the 2016 affidavit.
It’s little wonder Mr John Sangwa SC himself alternatively prayed in his petition that the 2016 affidavit be amended in such manner as would in the judgment of the Court satisfy Article 106(3) of the Constitution.
Article 106(3) has already been held by the Constitutional Court not to be a standalone provision. It must be read together with Article 106(6). This is unlike the 1996 Amendment which had a standalone provision on twice having been elected without any express qualification as is the case under the current Zambian Constitutional order.
At this point it is important to also understand that under Article 7 of the Constitution of Zambia, Statutory Instruments, such as the one containing the Affidavit form under dispute, are part of the Laws of Zambia and can be challenged in Court. The challenge to Statutory Instrument is provided under Article 67 of the Constitution which states:
“67. (3) A person may challenge a statutory instrument, for its constitutionality, within fourteen days of the publication of the statutory instrument in the Gazette.”
The question which the Constitutional Court may be faced with is whether the petition to challenge the form, in effect the Statutory Instrument, is constitutionally time barred or not.
For avoidance of doubt, many media houses and political commentators seem to be misleading the public that the Affidavit form was secretly amended by ECZ. This is untrue and patently false. The Affidavit was used in the 2016 elections by all Presidential candidates, without any problems at all. Lelo chaipa bwanji that you are accusing the Commission of manipulating the Affidavit?
No the Electoral Commission has done no wrong or manipulation at all. The Commission has always been doing what it does since time immemorial when the law changes on elections.