By Mwaka Ndawa
THE Constitutional Court has thrown out the case in which former PF Luangeni member of parliament Charles Zulu asked it to interpret what is equivalent to a grade 12 certificate and whether an individual without a grade 12 certificate but has tertiary certificates cannot participate in this year’s general elections.
Concourt judges Mungeni Mulenga, Margarete Munalula, Mwila Chitabo, Matthew Chisunka and Judy Mulongoti dismissed the matter for being res judicata.
Justice Mulongoti said the court found merit in the arguments by the Electoral Commission of Zambia and the state that the issues raised by Zulu were already decided upon in the Bizwayo Nkunika case.
Zulu had cited the Electoral Commission of Zambia and the Attorney General in the matter seeking an interpretation of Article 70 (1)(d) in relation to the notification by the electoral body that they will not accept nominations from aspiring candidates with only qualifications from tertiary institutions without the prescribed grade 12 certificate during the August 12 elections.
The former lawmaker wanted a determination on whether having regard to the Constitutional Court’s judgement delivered on March 10, 2021, in the Bizwayo Nkunika petition and the pronouncement by ECZ on March 17 that tertiary qualifications such as trade certificates, diploma or degree are not equivalent to grade 12 certificate is in breach of the Constitution considering that a grade 12 certificate or its equivalent is the minimum academic qualification required for a candidate.
Zulu wanted the court to determine wether a person who possess high qualifications than a grade 12 certificate or it’s equivalent is not eligible to contest as member of parliament because he or she does not have a grade 12 certificate or its equivalent.
He also wanted a determination on whether the electoral body should make a blanket interpretation to what constitutes a grade 12 certificate or equivalent and that no tertiary qualification is equivalent to a grade 12 certificate.
When the matter came up for hearing, Josiah Simachela, a chief state advocate in the Attorney General’s chambers, said the issues raised by Zulu were dealt with in the Nkunika case.
He said the case was res judicata, rendering the court functus officio.
Bob Musenga, who was representing the Electoral Commission of Zambia, adopted the arguments by the Attorney General.
Zulu’s lawyer Kenslick Simbao argued that the issues in the Nkunika case should be distinguished from his client’s case.
He said the court addressed what amounts to a grade 12 certificate and its equivalent but what was in contention was the interpretation of minimum qualification because Zulu had a diploma but does not have a grade 12 certificate and the same was certified to be equivalent to the requisite academic qualification.
Simbao urged the court to interpret the term minimum qualification under Article 70(1)(d) of the constitution because under the said Article, a candidate is not required to possess a minimum qualification when they have higher qualification.
“Res judicata is not the only instrument which can show that the court is firm and stands on its own decision. Neither the court (nor) ECZ have the mandate to determine what’s equivalent to a grade 12 certificate,” charged Simbao.
Judge Mulenga asked Simbao why he was before court when it had no mandate to interprete what constitutes a grade 12 certificate.
In his respons, Simbao said he was before court to inform it that Zulu’s tetiary qualifications were certified as an equivalence of a grade 12 certificate by the Zambia Qualifications Authority ZAQA but ECZ wants a grade 12 certificate.
When asked to produce a certificate to prove his claim, Simbao failed.
In his reply, Simachela insisted that the issues were adequately dealt with by the court, arguing that tertiary, vocational, crafts and apprenticeship certificates were not equivalent to a grade 12.
“Tertiary qualifications are the ones isued at colleges and universities and Zulu has been covered in the Nkunika case. We pray that the court confirms the preliminary issue and dismiss the case with costs,” said Simachela.
In dismissing the originating summons, the court ordered each party to bear own costs.
And reacting to the Court’s ruling, Zulu said he did not take the matter to court to qualify himself but did so for candidates who have tetiary qualifications but lacked a grade 12 certificate.
“The grade 12 clause has to be removed when we go back to Parliament because it has really disadvantaged people, especially women who were nurses and retired police officers who can participate better than a grade 12,” Zulu said.
“My diploma was graded grade six by the certifying council. I did not come to court to qualify myself. What I wanted was to clear the air because there is still a lot of tension in the country. I am not standing not because I don’t have a grade 12 certificate, no. Even if I qualified, I wasn’t supposed to stand, I have done two terms in my constituency.”
He said the electorates in Luangeni Constituency were disappointed that he had developed the constituency but he was not re-contesting his seat.
“The boreholes that I have built, the clinics and schools I built, I didn’t need that grade 12 certificate. I was also a deputy minister at some point, no one came to me and said no you are not debating well because you don’t have a grade 12 certificate. I participated full-time in Parliament for 10 years,” Zulu said.
“It is sad that many people have been disadvantaged. If I want to go back to Parliament, what I will do is simply write one subject, I need to rewrite which is nyanja, pass then I will qualify. For now am a member of the central committee. I don’t have intentions of going back to Parliament, my focus is to support the party, and campaign for Presindent Edgar Lungu.”
Zulu added that he will sit grade 12 exams in July this year under GCE.1