ANOTHER LAWYER SUES: Lusaka lawyer sues ECZ for accepting Lungu’s nomination paper
LUSAKA lawyer Michael Mutwena has petitioned the Electoral Commission of Zambia in the Constitutional Court for accepting President Edgar Lungu’s nomination papers in the August 12 General Election as he is not eligible to stand.
Mutwena wants a declaration that no State organ or institution was granted the power to change the Constitution by introducing the concept of president for life (wamuyayaya).
He argued that such power is a preserve of the Zambian people to be exercised through a referendum.
Mutwena wants a declaration that the concept of president for life is prohibited by the Constitution.
He is seeking a declaration that President Lungu is stopped from participating in presidential elections as a candidate by Article 106(3) because he has held office twice.
Mutwena also wants a declaration that ECZ allows the PF, which sponsored President Lungu, to file in nomination papers for a different candidate to participate in the elections on its ticket.
Mutwena said the ECZ on May 17, 2021 acted contrary to the dictates of Article 106(3) of the Constitution when they accepted President Lungu’s nomination papers as a presidential candidate who has already held office twice.
He said ECZ should have known that President Lungu was prohibited by the Constitution from taking part in elections to the office of President.
Mutwena further argued that decision of ECZ to accept President Lungu’s nomination papers was illegal and unconstitutional, and is null and void.
He submitted that the ECZ returning officer violated and contravened Article 106(3)of the Constitution and the decision to accept the President’s nomination papers was and is still illegal, unconstitutional and beyond the mandate of the electoral body.
He said according to Article 52(2) the returning officer of ECZ was given the right and duty to reject the nomination papers of a person who does not qualify or is not eligible to contest in presidential elections as a candidate.
Mutwena said Article 106(3) dictates that a person who has held office of President twice is not eligible for election.
“Article 106(3) is important and if not properly implemented it may culminate into the illegal and unconstitutional ouster of every fundamental concepts such as the constitutional limit imposed on democratic political power by way of mandatory alternation of the person holding the office of President, which is an integral and inseparable aspect of democracy,” Mutenwa submitted.
“Contrary to the provisions of Article 106(1) that the term of office for president is not supposed to have a minimal threshold, the substance Article 106(6) seemingly suggests that the term of office for President should have a minimum threshold of three years, in that if it is less than three years, then it should not be deemed to be a full term of office and gives rise to a possible constitutional conflict.”
He indicated that there was a possible conflict between Article 106(1) and Article 106(6) of the Constitution.
Mutwena however said Article 106(1) is superior to Article 106(6) and as such anything contained in Article 106(6) that contradicts that which is contained in Article 106(1) will be suppressed by the substance of the said Article.
“The position contained in Article 106(1) to the effect that a term of office is actually not supposed to have any minimum threshold whatsoever because it was intended to expire at any time when the president-elect assumes office will supersede the substance of Article 106(6),” Mutenwa said.
He said in an event that President Lungu wins an election the questions that will arise are whether the Head of State will be eligible for election to the office of President in 2026,2031 and all future elections if he decided to resign two months before he completes a term of office.
And Mutwena wondered if President Lungu will be eligible if he decides to swap offices with the Vice-President after two and half years, thereby reducing the time served in each office.
“If the answer is in the negative, what law will be invoked to stop the perpetual eligibility of President Lungu from happening and why the same law is not applicable now prior to the elections,” asked Mutwena.
He further wants a declaration that the concept of mandatory alternation of the person holding the office of President is a mandatory constitutional limit imposed on democratic political power.
Mutenwa wants an order that any illegal, unconstitutional and unjustified attempts to abolish the constitutional concept of mandatory alternation of the person holding the office of President are prohibited by the Constitution, hence null and void.
The petitioner also wants a declaration that any illegal, unconstitutional and unjustified attempts to relegate from “holding office” to “term of office” and making it easy to evade and manipulate are prohibited by the Constitution and are null and void.
Mutwena further wants an order of certiorari that President Lungu’s nomination papers and all documents in support of his nomination for election to the office of President and the decision of the returning officer of ECZ to accept his nomination papers be quashed from the Constitutional Court.