Governance and Legal Activist, Isaac Mwanza, says any election within the coming General Election can be moved forward or backward if any item listed in Article 52(6) of the Constitution takes place before 12th August, 2021 but after 18th June, 2021.
In an interview on Sunday, Mr Mwanza said while the date for a general election is generally fixed by Article 56(1) of the Constitution, the decision of the court, as an example, to disqualify any presidential candidate after hearing the nomination petition automatically triggers Article 52(6) which cancels such an election while others elections can go on.
“Article 52(6) expressly empowers the Electoral Commission to cancel any election in an event a candidate dies, resigns or becomes disqualified in accordance with Article 70, 100 or 153 or a court disqualifies a candidate for corruption or malpractice after the close of nominations but before 12th August 2021,” said Mwanza.
The Electoral Commission has set 14 – 18 June, 2021 for Presidential nomination. Various stakeholders have expressed interest to challenge the nomination of President Edgar Lungu, UPND leader Hakainde Hichilema and NDC leader Chishimba Kambwili to contest 2021 elections.
Mr. Mwanza said the filing and hearing of a nomination petition against any candidate has a maximum of 28 days, generally, from June 19 – July, 16, 2021 next year if such a nomination took place on the 18th June, 2021 as announced by the Commission.
“So, while Article 52 does not talk about cancelling the general election generally because the August date is fixed by the Constitution, any election, whether a presidential, parliamentary and local government election during the same general election gets affected by any happenings in article 52(6). The happening automatically cancels such an election,” said Mwanza
Mr. Mwanza advised ECZ to be cautious on the timing with regards to printing of ballot papers.
“Article 52(6) is clear and is not inferior to Article 56 which sets the date. When any of the items in this article happens, ECZ cannot run away from cancelling the affected election and calling for fresh nominations. The election from such fresh nominations can only be held within 30 days of the filing of the fresh nominations as stated in that provision of the Constitution,” he said
Mr. Mwanza has also clarified that the Constitutional Court is not bound by any timeframe to determine or pronounce itself on the challenge against the nomination.
The law only allows binds the Court to hear a nomination petition within 21 days but the Court has discretion on when to deliver its ruling. It can be done immediately thereafter or even months later as has been the case with many petitions before the Constitutional Court.