By Isaac Mwanza
A member of one opposition political party that successfully filed the presidential nomination asked this question today: Can we change our running mate at this point? My answer was that the law offers an option, dependent on what happens to a running mate: resignation or death (God forbid!)
1. EFFECT OF RESIGNATION OR DEATH OF RUNNING MATE
The first step to answering this question is to draw a parallel of what happens when a presidential candidate resigns or dies before the run-off in the presidential nomination as per clause (3) of Article 102 of the Constitution of Zambia. In terms of Article 102(3): –
“The presidential candidate who assumed the place of the previous presidential candidate in accordance with clause (2) shall appoint a running mate.”
Readers should take note that this does not talk about what happens if a running mate is one that resigns. But the courts would find the provision discriminatory if the same cannot be applied to when a running mate resigns or dies, as the Court did in the case of Attorney General and Another v Lewanika and 4 Others (Supreme Court of Zambia Judgment No. 2 of 1994) when the Court was faced with a similar debate around the then Article 71(2)(c) of the Constitution of the Republic of Zambia. Under that Constitution, Article 71(2)(c) (now repealed) read:
“Article 71(2)(c) (repealed).
A member of the National Assembly shall vacate his seat in the Assembly:
in the case of an elected member who becomes a member of a political party other than the party of which he was an authorised candidate; if he is an independent, joins a political party.”
The Supreme Court observed that “the article is in total silence as to what happens to a member “who resigns from the party that sponsored his candidature and does not join another party” and that situation is not expressly covered. There can be no doubt there is a lacuna or a void in this article.”
The Court then held that “whenever the strict interpretation of a statute gives rise to unreasonable and an unjust situation, it is our view that judges can and should use their good common sense to remedy it – that it by reading words in if necessary – so as to do what parliament would have done had they had the situation in mind. We, therefore, propose to remedy the situation in this case by reading in the necessary words so as to make the constitutional provision fair and un-discriminatory. Consequently, the necessary words to be read in are “vice versa”
Hence Article 71(2)(c) should now read:
71 (2) A member of the National Assembly shall vacate his seat in the Assembly: in the case of an elected member, if he becomes a member of a political party other than the party, of which he was an authorised candidate when he was elected to the National Assembly or, if having been an independent candidate, he joins a political party or vice versa.”
Again, it may be argued that the provisions in Article 102 are restricted to the time when a presidential candidate resigns due to ill-health or dies during the run-off but does not provide for what happens in the first round, that is, between nomination and the time of the general election. This may a good argument but may be held discriminatory again because the situation can also happen earlier.
2. REPLACEMENT TRIGGERED BY ARTICLE 52(6)
However, regardless that the Constitution has fixed the election date for a General Election in Article 56 clause 1, Article 52 clause 6 of the Constitution provides what happens when a candidate resigns after filing nomination but before the election date.
“Article 52(6) reads:
Where a candidate dies, resigns…, after the close of nominations and before the election date, the Electoral Commission shall cancel the election and require the filing of fresh nominations by eligible candidates and elections shall be held within thirty days of the filing of the fresh nominations.”
This article is clearer: if a candidate, be it presidential or running mate resigns or dies (God forbid!), the Electoral Commission shall cancel the election and require the filing of fresh nominations by eligible candidates and elections shall be held within thirty days of the filing of the fresh nominations.
Article 52(6) is the only opportunity for any party to replace a candidate if the candidate is becoming the custom in South Africa’s ANC. Zambia is lucky that all these candidates who have resigned or withdrawn have not done so after close of nomination and before the election. If they did, it would have cancelled the entire nomination and put the election in jeopardy as the Electoral Commission, in obedience of Article 52(6) is required to conduct fresh nomination and hold the election “within thirty days of the filing of the fresh nominations.”
The only sure way to replace a presidential running mate after the filing of the nomination is for that running mate to resign for any various reason as provided under Article 52(6) of the Constitution. The resignation under this Article mandatorily cancels that particular election and calls for fresh nominations of all candidates. The other way is by resigning due to ill-health and draw a parallel from Article 102 clauses (2) and (3) but this would need the Constitutional Court to hold that the similar instances apply to resignations done during the first round of the general election.