CONSTITUTIONAL lawyer John Sangwa has urged the Constitutional Court to nullify the nomination of running mates for 16 political parties for not meeting the requirements stipulated in the constitution when filing in nomination papers.
This is in a matter where historian and political commentator Sishuwa Shishuwa and lawyer Alfred Kanda have petitioned running mates for contravening the constitution by not paying nomination fees and providing 100 registered voters as supporters when filing nomination papers to the office of Vice-president.
During hearing of the matter before all the nine judges of the Constitutional Court, Sangwa, who is representing Sishuwa, said according to Article 110 of the Constitution, the same qualifications that apply to presidential candidate shall apply to Vice-presidents.
He said all the running mates did not comply with the qualifications set out in Article 110(1)(i) and (j) as they were required to pay nomination fees and provide 100 supporters and therefore their nomination for election to the office of Vice-President was a nullity.
Sangwa said the running mates did not show that they had complied with the requirements of the constitution but had given reasons for not complying with the constitution and such an omission contravened the constitution and was illegal.
“The qualifications that apply to presidential candidates apply to them and there is no exemption. They will automatically assume the office of President in an event of a vacancy, so there can be no exemptions, they must meet qualifications,” Sangwa said.
“Their nomination and supporting documents are illegal, null and void for contravening the constitution and should be struck out.”
Kanda argued that the Vice-President takes over power and to suggest that they cannot meet qualifications set out in the constitution was unconstitutional.
“We need to arrest the situation; why did we become lawyers? We can’t just sit and fold arms when the constitution is being violated. Any contravention of the constitution is an illegality,” Kanda said.
“A poor councillor is forced to pay nomination fees but the Vice-Presidents have jumped the gun. Whatever the presidential candidate brings, the running mate should also bring.”
Eric Silwamba, who is representing PF’s Professor Nkandu Luo, said the prescribed nomination fee and production of supporters could not apply to running mate because they were passengers on the ticket of a presidential candidate.
He said running mates and presidential candidates were treated differently as it was the President who enjoys immunity and not running mate.
He said it was the duty of the presidential candidate to ensure their preferred running mates meet the qualification of Vice-President.
Another lawyer C. Bwalya said unless there was a competent challenge made to ECZ within seven days challenging the validity of the nominations, the court had no authority to determine the proceedings.
He said just as the speaker does not pay nomination fees and provide supporters under Article 70 of the Constitution…the same applies to running mates.
“There is no competent challenge against the returning officer. The non-joinder of a primary party to the petition is fatal,” said Bwalya.
And lawyer representing John Brown Harawa of UNIP, Sakwiba Sikota said the position of running mate was not in a vacuum but attached to presidential candidate.
He said there was no need to meet the requirements of the Constitution in filing nomination papers.
He urged the court to dismiss the petitions.
Attorney General Likando Kalaluka said running mates were not required to pay nomination fees or secure a number of voters which Article 100 omitted to distinguish between substantive qualifications and nomination qualification.
He asked the court to dismiss the petitions for incompetence because Article 52(4) of the constitution does not apply to running mates although it talks about the nomination of president, mayor and council chairpersons.
Kalaluka asked the court to down tools because the court does not have jurisdiction to determine Article 52(4) which the constitution has not granted.
“A running mate is selected and not elected, they only become Vice-President upon election of a presidential candidate,” said Kalaluka.
Solicitor general Abraham Mwansa said the issue lies in the definition of a candidate and a running mate is not a candidate.
He said running mates have not been defined as candidates, therefore they only have to meet the substantive requirements listed in Article 100(1) (a) to (h) which have to be ensured by the person selecting such that in case of a vacancy, the running mate takes up the presidency.
Mwansa added that the petitioners have not shown that the running mates had not provided supporters.
In reply, Sangwa said the requirements to comply was imposed by the constitution and any law that was inconsistent with the constitution could not apply.
He affirmed that the speaker was not required to pay money or provide supporters because the constitution says so.
“What is the purpose of Article 52(4) if the determination of the returning officer is final? The returning officer has no adjudicative power, the legality of nomination is being challenged and it is not the duty of the returning officer to determine,” Sangwa said.
“One cannot say I don’t qualify but he (presidential candidate) chose me; this is not the issue. The petition is simple because the requirements are enshrined in the constitution and it can only be changed by the constitution. The respondents are not eligible to stand for elections.”
He added that Sishuwa’s petition was competently before court because the respondents did not file their nomination on any other provisions but under Article 52(1) and for that reason they were subject to the court’s decision under Article 52(4).
“The court has jurisdiction under Article 128(3) to interrogate their (running mates) nomination.”
Jeffrey Chimankata, who is also representing Dr Sishuwa, submitted that under Article 226 of the constitution, presidential elections include the elections of Vice-President, which was not the case for the Speaker and member of parliament.
And Kanda indicated that lawyers should not create a lacuna in the constitution or create jurisprudence that would lead to a hide and seek in the constitution.
He said the returning officer’s decision was not final and was amenable to review by the court.
“Kalaluka is taking away the court’s power to interpret serious constitutional transgressions and trying to make the country look like it does not see these things. The arguments by Kalaluka should not be entertained by the court because the transgressions raised must be applied to a person who wants to be Vice- President,” said Kanda
The court has reserved judgment to today at 16:00.