Kelvin Bwalya Fube

_*By Lubona*_

*KBF STOP MISLEADING THE MASSES, ENOUGH!*

A statement purporting to be from PF Vice Chairperson Election KBF, here below is making circles. I am Journalists but now in the legal faculty. Below is the statement to which I later give you some quick take-aways.

_*“Good afternoon Team:*_

_*Under the new Constitution by elections will be held pursuant to Article 57 within 90 days of the Vacancy.*_

_*In the case of Munali which we have lost OR in the case of Nalolo (which we had nullified )….ECZ is mandated to set the place, time and date of the by Election. Our Hon. Minister Nkandu Luo is eligible to stand and re contest. The court did not disqualify her from standing.*_

_*What is at play now is a struggle for the seats. We are expecting more judgments in the next 10 days. As a legal team we fid our best…We now have brace for by elections and/OR Appeals. As Party we need to start preparing for these results with these factors in mind. ALL IS NOT LOST. …WE JUST NEED TO FOCUS. …STRATEGISE AND EXECUTE OUR PLANS TO PERFECTION. Lusaka and the Copper belt must not be lost at all costs.*_

_*KBF-VICE CHAIRMAN ELECTIONS –PF”*_

*The Truth and Correct Position*

Firstly, that the by-election could be held within 90 days from date of nullification of election of Hon Prof Nkandu Luo is well within provisions as cited, and correct.

That Hon Prof Nkandu Luo is illegible to re-contest if upon her appeal, the ConCourt upholds the high court ruling, is not legally correct to advance that Hon Prof Nkandu Luo is eligible to contest is legally flawed and utra vires constitutional provisions.

It has been argued (purportedly) by Cousnel KBF that,

_*“Our Hon. Minister Nkandu Luo is eligible to stand and re contest. The court did not disqualify her from standing.”*_ End of his alleged actual words.

This argument by KBF is flawed and contradicts the provisions of the Amended Constitution no. 2 of 2016 which he cites. They are not even a legal but a political mind.

It cannot by interpretative principles be assumed that Hon Prof Luo is eligible to re-contest because the court did not so disqualify her by the Judge’s pronouncements, failure to cite the authority. It is highly misleading to take that mind. Hon Prof Luo will only remain Member of Parliament if upon her appeal to the ConCourt the decision of the High Court will be stayed; otherwise, she is dusted and done!

That the Hon Judge Musona did not actually utter the words “disqualified” is why KBF argues that the former PF Munali Parliamentarian is eligible for re-election in the potential by election within ninety days, is soothing a wound only without administering the healing or therapeutic antidote to the patient. It is mere self-comfort but impliedly alleging he erred in Law and fact, then KBF should apply to the court demanding that Judge Musona should specifically make certainly pronouncements disqualifying Hon Prof Luo as provided for in the amended constitution. The position is that it is the constitution itself, its directive that gives effect to that disqualification and not necessarily the pronouncement by the Judge which should disqualify Hon Prof Luo.

Article *72 (4)* is very *categorical* and *assertive enough* that,

_*“A person who causes a vacancy in the national assembly due the reasons specified under clauses article 72 (2) clauses; a, b, c, d, g, and h, shall not, during the term of that parliament (term of parliament is five years in Zambia)*_ –

*a) be eligible to contest an election; or*

*b) b) hold public office”*

What this means is that any person who loses the national assembly seat on account of the conditions set out in article 72 (2) under clauses herein below:

a) resigns by notice, in writing, to the speaker;

b) becomes disqualified for election in accordance with article 70;

*c) Acts contrary to a prescribed code of conduct;*

d) Resigns from the political party which sponsored the member for election to the national assembly;

g) Having been elected to the national assembly, as an independent candidate, joins a political party;

*h) is disqualified as a decision of the constitutional court,*

is effectively disqualified by the same constitution in the same article but under sub article 4 clauses (a) and (b), that, that person shall not;

*a) be eligible to contest an election; or*

*b) Eligible to hold public office;*

Thus on the scale given above, Judge Musona has ruled that the former PF Munali Parliamentarian is guilty of clauses; (c)- Acts contrary to a prescribed code of conduct; and (h) is disqualified as a decision of the constitutional court, are both the very fundamental reasons which disqualify her effectively from the race and any public office! So why is KBF the PF counsel misleading the masses?

The learned Hon Judge Musona has expanded the meaning of the breach of the constitutional provisions above (a) and (c) in this whole range of congent evidence as adduced and argued by the counsel for UPND petitioner Doreen Mwamba.

High court Judge Musona has nullified Munali parliamentary election of professor Nkandu Luo, today, 22nd November 2016, on account of:

1. Prof Nkandu Luo’s illegal stay in office after dissolution of parliament and used public resources to campaign;

2. Attack of UPND double deck bus in Mtendere compound;

3. Failure by ECZ to make form GEN 12 available which is a legal document;

4. Presiding officer in Munali denying UPND candidate Doreen Mwamba entry into the totalling centre but allowed Prof Nkandu Luo;

4. Failure by Zambia Police to protect UPND supporters during campaigns who lived in fear and could not even wear party regalia, and

5. Denying UPND candidate an opportunity to campaign and later frustrating and disrupting rallies using PF cadres, which all the reasons considered, Judge Musona submitted that the evidence submitted by the petitioners proved beyond reasonable doubt that the election was not free and fair and thus nullified.

*EXTENT, BINDING AND PERSUASIVE IMPACT*

My analysis and interpretation of the reasoning of the Judge and facts adduced in this case are not peculiar to Hon Prof Luo and ubiquitously before the high court in the country by UPND petitioners, and interestingly, the PF itself has petitioned some seats it lost, all in all, an indication that this whole election was a sham! Very few genuine cases.

The August election was certainly not free and fair. How can a ruling party which controls the electoral commission, on one hand petition an election as having been not fair where it lost, and on the other, embrace the outcome where it won? How can the PF regime cry foul to actions of ECZ perhaps to the extent that in some constituencies the ECZ did not provide a conducive environment for the ruling party to rig, manipulate the process, and that is what gives motivation to petition loss in an election they had total stranglehold of all elections agents!

The violence so raised was not caused by Hon Luo alone, disruption of meetings of opposition political parties was not peculiar to Hon Luo alone, nor was the attack on the UPND bus in Mtendere restricted to that area, as such was ubiquitously seen in Shiwang’andu, Kaputa, Samfya, Chawama, Kitwe, Ndola, Solwezi, to mention a few, nor was the refusal of UPND candidates, monitors, agents to enter polling or counting centres, a matter of Munali alone but the entire country, not even is it Hon Luo who overstayed in office illegally after dissolution of parliament, but all PF Cabinet and Deputy Ministers.

Thus going by these same and similar grounds upon which the constitutional court ruled so two weeks before the august elections, and the reasons now being advanced by High Court Judges are a harbinger of the expected outcome of all PF seats that have been contested by the UPND.

KBF is correct that more Judgments are coming, but be rest assured, he who laughs last, does longer, and you know who it is.

However, I do agree with KBF that Hon Prof Luo is allowed by the Constitution to appeal to the Constitutional Court according to article *73 (3)* of the amended constitution no 2 of 2016. This is why clause _*h*_ above in article 72 (2) refers to disqualification by the constitutional court, because one can appeal to the ConCourt if not happy, as this far Hon Prof Luo has indicated.

He is further correct when he advises the PF that,

_*“As Party we need to start preparing for these results with these factors in mind”*_ because more heartbreaks certainly abound in the next ten days.

If and when Hon Prof Luo appeals to the ConCourt, she remains in office as Member of Parliament for Munali until the matter is concluded by the ConCourt according to article *73(4).* It is by this very reason that the president may opt not to revoke her appointment during the time the matter is appealed to, and being determined by the ConCourt. As long the matter remains undetermined in the ConCourt, she remains elected Member of Parliament, and consequently, the president may choose to maintain her status quo as minister of high education.

_*The Author is a Media Business Consultant, Lecturer of Media and Journalism, & in the Legal Faculty*_

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