By Mwaka Ndawa
ATTORNEY General Likando Kalaluka says if the Constitutional Court agrees with constitutional lawyer John Sangwa and includes the paragraph which states that a presidential candidate has not served for two terms in the affidavit for presidential and running mates, it would be wandering into the drafting of legislative function which is not within its powers
He said the petition is incompetently before court as it comes after August 12, 2016 when the disputed statutory instrument was published in the national gazette.
In this case, Sangwa has petitioned the Electoral Commission of Zambia for eliminating the part which requires a presidential candidate to state the number of times they have held office as president in Form no. Gen 4 to be sworn by presidential candidates when filing in nomination papers.
He is seeking an order that the Constitutional Court commands ECZ to amend the affidavit for presidential candidates and running mates and include another paragraph which is in compliance with Article 106(3) of the constitution which must read “I have not twice held office as President”.
In the alternative, Sangwa wants ECZ to include another paragraph in the judgement of the court which shall satisfy Article 106(3) of the constitution.
In his answer to the petition, Kalaluka said by seeking an amendment to the affidavit for presidential candidates or running mates form no. Gen 4, in order for it to comply with Article 106(3) of the constitution to read “I have not twice held office as president” invites the court to exercise the jurisdiction of drafting laws.
“The petitioner is guilty of inordinate delay in presenting the challenge for constitutionality of the statutory instrument as he is hopelessly out of time. Quite clearly, the lapse of a period of four years and eight months is inexcusable,” Kalaluka said.
He indicated that the said challenge can only be entertained by the court if instituted within 14 days of its publication in the gazette in accordance with Article 67(3) of the constitution.
“Form no. Gen 4 which states that “I qualify for nomination as a presidential candidate and the disqualification in Article 100(2) do not apply to me” confirms that all constitutional requirements relating to the nomination of a presidential candidate have been met and in the premises, there would be no need for any amendment,” Kalaluka argued.
“The prayer to include the paragraph seeks to grant the court authority to draft laws which jurisdiction flies in the teeth of Article 62,128 and 177 of the constitution.”
Kalaluka stated that the prayer for amendment of the affidavit for presidential candidates and running mates does not take into account Article 106(6) of the constitution and the court’s pronouncement in the Danny Pule case and the Bampi Kapalasa and Busenga case.
“As this court has already pronounced itself to the effect that a term less than three years is not a full term and cannot be considered when Article 106(3) is invoked, it stands to reason that this petition is indefensible, not tenable at law and ought to be disregarded by the court,” said Kalaluka.
“The court has no jurisdiction to entertain the petition. Sangwa is not entitled to the reliefs prayed for.”
And in a notice to raise preliminary issue, Kalaluka wants a determination on whether or not the contention that Form no.Gen 4 prescribed by the Electoral Process (General) Regulations statutory instrument no.63 of 2016 promulgated on August 12, 2016 does not meet the requirements of Article 53, is out of time contrary to Article 67 of the constitution.