By McDonald Chipenzi
Davies Mwila, the ruling party Secretary General, seems to be in a high gear to encourage the violation of the constitution instead of defending the constitution as instructed in Art 2 of the Constitution of Zambia (Amendment) Act No. 2 of 2016.
Mr. Mwila is quoted as having said, in his congratulatory message to his party’s scooping of the Nangula ward by-election in Luena Constituency of Limulunga District in Western Province,
*”In light of the COVID19 outbreak in the country, I call upon the Electoral Commission of Zambia to postpone all by elections that are scheduled to take place in the near future to a period after the pandemic has been dealt with and the nation declared COVID-19 free. This is in order to safeguard the lives of our citizens and curtail possible transmission of the virus.*
The Country is expecting three more ward by-elections one in Chilubi and two in Nalikwanda Constituencies of Chilubi and Mongu districts respectively following the resignation of the opposition sitting Councilors to join the ruling party.
In as much as the call is morally right, Mr. MWILA must not tempt the Commission to violate the constitution with impunity, as by law, Commission has not mandate to do so perhaps only the President with approval of Parliament can do such a thing.
This is so because the Electoral Process Act No. 35 of 2016 guides the Commission that it may only postpone an election *if only the polling day for that election shall fall within the period required by the Constitution*
Even if the Commission decides to postpone a by-election when it is satisfied that the postponement is necessary for ensuring a free and fair by-election,
*”the polling day for the by-election must fall within the period required by the Constitution*”
It is therefore, important for Mr. Mwila to note and know that the Electoral Commission of Zambia (ECZ) is tightly put under a constitutional corner as it has no constitutional mandate and power to cancel any by-election in Zambia OUTSIDE the 90 days.
Except to postpone it and which postponed of that by-election must fall within the period required by the Constitution to hold it that is within 90 days.
The powers of the Commission ends at *amending the election timetable, varying the voting hours and/or postponement of voting at polling station if it is proven to be not possible to conduct a free and fair election* in accordance with sections 28(2); 50 and 56 of the Electoral Process Act.
Unless, the Constitution or part of it is suspended legally during war or and STATE of EMERGENCY which is done by the President invoking emergency or and Executive powers, *no by-election CANNOT be postponed, unfortunately.
So the commission cannot be blamed for holding a by-election either in the face of Coronavirus pandemic or cholera.
All it needs is to put health measures in place as it happened in NANGULA BY-ELECTION to avoid endangering the lives of the voters, poll staff, monitors/observers, media and security personnel and other stakeholders.
Therefore, the call for Mr Mwila on ECZ to postpone futureby-elections is legally and constitutionally misplaced and obnoxious to the letter and spirit of Zambia as a constitutional democracy.
The ruling party shouldn’t be in the forefront subjecting the Commission to public ridicule when it fails to abide by such directives in respect to the law.
ECZ can’t postpone an election outside the provisions of the law because all by-elections are an operation of law meant to fill casual vacancies that fall in between the major elections and must be held within 90 days as stipulated by law.
Mr. MWILA must be reminded that Zambia is a constitutional democracy and not a banana republic where every Jim and Jack can call for the postponement of an election and must be done and direct state institutions as and when they want.