By Mwamba Peni II.
As a point of departure, let me state that prior to the Constitutional amendments of 2016, there was no provision in the Constitution which required an aspiring Parliamentary Candidate to meet certain academic credentials in order to qualify to stand in an election. According to the committee selected to draft the Constitution, the rationale for coming up with minimum academic qualifications was to ensure that we have members of Parliament who are able to debate and make meaningful contributions to the proceedings as representatives of the people.
THE KABWE HIGH COURT INTERPRETATION OF WHAT CONSTITUTES A GRADE 12 IN 2016.
Following the provisions contained in Article 70 (i) (d), which requires a candidate aspiring to become a Member of Parliament to have a minimum academic qualification of a grade 12 School Certificate, one Sibongile Zulu went to the Kabwe High Court seeking an interpretation of said Article. In its ruling prior to the General Elections in 2016, the Kabwe High Court stated that a grade 12 Certificate included a School certificate; General Certificate of Education (GCE); or any academic qualification higher than a grade 12 Certificate.
Consequently, all those with no grade 12 certificate but went to Mongu or Mpika home Craft Schools qualified to be admitted as candidates in the 2016 General Elections. A few of them took advantage of the occurrence and registered for some online courses prior to the nomination date in an attempt to qualify to stand.
THE 10TH MARCH 2021 CONCOURT RULING.
In 2019, a losing candidate in the 2016 Lundazi Central Parliamentary elections Bizwayo Nkunika sued the winning candidate Lawrence Nyirenda and the Electoral commission of Zambia (ECL) on the basis that Mr. Nyirenda did not meet the minimum academic qualifications as provided for in Article 70 (i) (d) of the Republican Constitution.
In it’s ruling, on 10th March 2021, the ConCourt unanimously agreed that the Kabwe High misinterpreted the Constitution by including any tertiary certification as equipment to a grade 12. However, they could not agree on the implications of that on the winning candidate as two of them ConCourt judges submitted that the Lundazi seat should be declared vacant as the candidate did not initially meet the minimum academic requirements while three others (majority) stated although he did not meet the minimum academic qualifications, the seat could not be declared vacant because the Kabwe judgement was still in effect at the time the candidate was filling in his nomination as no one had challenged it until it was overturned by the ConCourt therefore the Law could not be applied retrospectively.
WHAT CONSTITUTES A GRADE 12 CERTIFICATE ACCORDING TO THE CONCOURT RULING OF MARCH 10, 2021?
Although the common name used for a minimum qualification is a grade 12 certificate, its official name is “School Certificate.” And a School Certificate is obtained when you have studied for twelve continuous years, obtaining a grade nine certificate in the process, then you fulfil the following conditions after sitting for your final examinations:
(i). When you pass in at least six (6) subjects, including English, and one of which is graded as credit or better; or,
(ii). When you obtain a pass in at least five (5) subjects, including English, two of which must be graded as credit or better.
WHAT IS EQUIVALENT TO A GRADE 12 CERTIFICATE? DOES THAT INCLUDE GENERAL CERTIFICATE OF EDUCATION (GCE).
According to the ConCourt, an equivalent to a grade 12 means “qualifications that are comparable in value, amount, meaning and functions and are neither inferior nor superior to a School Certificate.” Meaning, a Matric certificate offered in South Africa, the General Certificate of Secondary Education (GCSE offered in Britain or any School Certificate offered in any country at the end of your Senior Secondary School is equivalent to a School Certificate.
And as for the General Certificate of Education (GCE) offered in Zambia, one doesn’t need to be in School for 12 years to get one nor do they need to write eight subjects. One can get a GCE even with one subject. However, for it to qualify to be equivalent to a School Certificate, you must meet the requirements for a School Certificate which are:
(i). Pass in at least six (6) subjects, including English, and one of which should be graded as credit or better; or,
(ii). Pass in at least five (5) subjects, including English, two of which must be graded as credits or better.
The spirit of the framers of the Constitution for coming up with minimum academic qualification for one to qualify to stand as a member of Parliament was to ensure that Parliament has members who are able to debate and make meaningful contributions to the proceedings as representatives of the masses. Therefore, it will be unfair to disqualify a form three product of UNIP education because they do not have a School Certificate or its equivalent and accept a School Certificate holder from the current standard of education, which is not as good as the past one, who can’t speak or write the official language properly.
In a country where education from grade one to University is not free, coupled with the challenges we have in the sector, its discriminatory and a contradiction to come up with such a constitutional provision given that the majority of our people do not have a School Certificate or its equivalent. Parliament is a legislative organ of Government even those with School Certificates do not understand the implications of certain clauses contained in those pieces of Legislation they discuss on the floor of the house otherwise they would not have passed some of the provisions in the current Constitution given the implications of some of the landmark judgments that have so far been passed by the ConCourt.
In order for us to have both equitable and fair representation in Parliament, its composition should reflect the social stratums of our country i.e more young people and women in decision making positions. For me, and from my experience in facilitating the drafting process for several years, you need language proficiency more than a School Certificate to qualify to stand as a member of Parliament. Moreover, since the legislative proceedings are so technical that even those with PhD’s or some lawyers with no drafting training have challenges in understanding the implications of certain clauses, may be we should spend more time discussing how to restructure Parliament and thereby provide experts in drafting, Public Finance, Procurement, Economics, Tax and researchers to the office of the member of Parliament as the case is in the Congress of the United States.