Electoral Commission of Zambia v Belemu Sibanze (2024/CCZ/0017) [2024] ZMCC 22 (15 October 2024)

JI 2024/CCZ/C0, 7 T :-ii: CONSTiTUTI Ol\iAL CO!. JR.,. Oi'" ZAM8 1A HOLDcN AT LUSAKA (Co;istitutiona/ Jurisdiction) IN THE MATTER OF: IN THE MATTER OF : THE CONSTITUTIOi\i OF ZAMBIA, CAP 1 OF THE LAWS OF ZAMBIA THE INTERPRETATION OF ARTICLE 52(4) AND ARTIC LE 157(E) AND 155 OF THE CONSTI TUTION OF ZAMBIA AS AMENDED BY ACT N0.2 OF 2016 BETWEEN: REPvauc OF ZAM814 ELECTORAL COMMISSION OF ZA ~~srrnrrl0f;ALCOIJRTOFZAA1e1A And BELEMU SIBANZE I ! 5 OCi 202't Ah ----1 '-.!.~ REGIS TR Y 6 APPLICANT RESPONDENT SOX 5006 7 LUSAKA Coram: Munalula, PC, Mulongoti, Mwandenga, Kawimbe and Mulife JJC in Open Court On 1oth october. 2024 and 14'~ October, 2024 For the Applicant: Mr M . lisimba of Messrs Mambwe, Siwila & L1simba Advocates For the Respondent: Mr. S. Nsomboshi of Messrs Mulenga Nsomboshi & Associates MUNALULA, PC, delivered the Judgment of the Cou rt JUDGMENT Cases referred to: 1 Gift Luyako v Biton Manje Hamaleke 2016/CCZ/0045 2. Hakainde Hichilema & Geoffrey Mwamba v Edgar Chagwa Lungu, lnonge Wina, Electoral Commission of Zambia and Attorney General 2016/CCZ/0031 3. Bernard Kanengo v The Attorney General 2022/CCZ/24 4 Lloyd Chembo v Attorney General 2017/CCZ/0011 5. Fredson Kango Yamba v The Principal Resident Magistrate. Anti-Corruption Commission and the Attorney General 2023/CCZ/003 6. Bric Back Limited TIA Gamawe Ranches v Neil Kirk Patrick 2021 /CCZ/002 7 Fei- x v:..itai v Wi ,~n,e Zalow.,1,s S S. Z ;.d!;re:-; , o 3 1 of 2018 The Constit:.;tion of Zambia as amended by ti'le Constil. Jiion {Amendment) Act No 2 of20 i 6 The Electoral Process Act No.35 of 2016 Local Government Act No.2 of 2019 The Constitutional Court Rules, Statutory Instrument No. 37 of 2016 [1] The Electoral Commission of Zambia (the Applicant) moved this Court by way of Originating Summons under Order IV rule 2(2) of the Constitutional Court Rules Statutory Instrument No. 37 of 2016 (the Rules). The sum of the plea for interpretation is the meaning of constitutional timelines in election related matters. [2] The summons was accompanied by a certificate of urgency hence the parties were immediately summoned and directions issued to the effect that the Respondent should file his opposing affidavit and skeleton arguments on Tuesday 8th October,2024 with the reply if any, being filed on Wednesday 9th October, 2024 so the matter could be heard on Thursday 10th October, 2024. [3] The factual context to the application, as deposed to by Mr Brown Kasaro the Applicant's Chief Electoral Officer in his affidavit filed together with the Summons, is that on 20th August, 2024, the Kabwe Municipal Council, following up an earlier letter of 7th August, 2024, enclosed a judgment in which Mr Belemu Sibanze (the Respondent herein) who was councillor for sea~ had become vacant on 30th July. 2024 as a result of the co,1vic:ion. •hat th on 14 August, 2024 t'"le Applicant issued a press release stating thar following the vacancy created in Lukanga Ware a by-election would be held on Thursday 19th September, 2024 with nominations sla:ed for Tuesday 201h August, 2024. [4] Mr Kasaro exhibited a court order marked "BK1" showing that the Respondent filed in Kabwe High Court an application for judicial review which was granted on 201 h August, 2024 together with an order staying the Applicant's declaration of the Lukanga Ward by-election and nomination of candidates. The Judicial review application was given the return date of 1am September, 2024. (5) On that day, the Applicant raised a preliminary issue to discharge the leave granted, which issue was dismissed, and the inter-parles hearing of the judicial review application was scheduled for 14th to 15th November, 2024. A further application for abridgement of the time for hearing the judicial review application made by the Applicant on 13th September, 2024, was dismissed by the High Court on 20th September, 2024. that cay, the Applicant's co•Jnsel, 1\fr _isimbs as:<ed !he Cour'. to ado;ess tne issue of Article 52 (4) of tne Constitution of Zamb,a as amenced oy tre Constitution (Amendment) Ac{ No. 2 of 2016 (the Constitution) which requires that a challenge to a nomination must be de~e~miried within 21 days and as such the High Court had been divested of its jurisdiction once the 21 days lapsed on the 10111 of September, 2024. Thal any decision thereafter was a nullity. [7] In opposing Mr lisimba's averment, Mr Nsomboshi, Counsel for the Respondent, contended that the application for judicial review was not about nominations but questioned the exercise of the Applicant's power to call for nominations and hold a by-election, in view of the provisions of the Local Government Act No. 2 of 2019 (LGA). That the High Court was not being asked to interpret the Constitution, a power which it did not have. [81 In his reply Mr lisimba essentially argued that the High Court had to apply its mind to the Constitution as this was within its jurisdiction. f9J In its ruling, the High Court stated that its concern was judicial review with regard to whether procedure was foffowed by the Applicant in its actions. It added: ,a-r, ,ot ,.~ a~.y way a ;n:,s,a' de;er:-i,,,,.,g w"ethe· o· rot a (;., 1d1::laie won o, •vas d J:y ,or:ina•ec a,.., beng invited to delve or dwell on ot:ier ;ssues which may .-:ot be within my J~r;sdiclion as issues of const;tutronah!y have a Constiiulional Court which you ca:, quickly run to which nas the jur:sd1ct1cn to address such The dates wnicn were earlier communicated to the parties are 1:, hne with my calendar . I dechne the apolicat,on and direct that we proceed with tie Judicial rev,ew p OJ Arr,ec with t:ie High Court's response, the Applicant moved us to interpret the provisions governing time limitations in the by-election process In support of the Originating Summons the Applican~ filed skeleton arguments, in which It was submitted that the High Court's delay, in hearing the application for judicial review would create a constitutional crisis as the elections would be held outsid e the mandated 90 days as per Article 57 of the Constitution which provides as follows 57(1) Where a vacancy occurs in the office of Member of Parliament. mayor council chairperson or councillor a by-election shall be held within ninety days of the occurrence of the vacancy. (11 J It was submitted that Article 57(1) of the Const1tut1on was a mandatory provIsIon; that setting the date of hearing for the Judicial Review outside the 90 days creates a const1tutlonal cnsIs. (12j The Applicant called in aid the case of Gift Luyako v B iton Manje Hamaleke1 where this Court held that no person or authority or Court has the power to enlarge time stipulated in the Constitution . The Applicant also Ci12g·,•,c Lung .. J , In ~, nge 'Nina, E 'ecto,al 1'.:ommission of 7ambia anc' Attorne~· GeneraJ2 where ~his Court stated that e,e period fo, hearing tne 0 residentiaJ Election was prescribed by the Constitution itself thereoy making it a rigid time frame and no~ giving the Court discretion ;;o enlarge it. [13] That the Respondent was in the judicial review application, in effect challenging the nominations set by the Applicant following his conviction by the Magistrate's Court. And in this regard, it was pointed out that according to Article 52(4) of the Constitution such a challenge must be done within seven days of the close of nominations and the Court shall hear the case within 21 days of its lodgment. [14J According to the Applicant, adjourning the matter to the 14th and 15th November. 2024 went beyond the 21 days prescribed by the Constitution thus rendering any ruling a nullity. In this regard the Applicant called in aid the case of Bernard Kanengo v The Attorney General3. [ 15] It was further submitted that the hearing date outside the prescribed period is extremely prejudicial to the Applicant and creates a constitutional crisis. That it was not in dispute that the Respondent was convicted of theft and that he had appealed against the conviction. It was thus submitted that notwithstanding the appeal and there being no stay of the conviction the can.;c•: .:>: s~O :>'Jea. ,twas suJm1:teC that t~e :o;vi::tio:1 rs :es!imony tt:at 1r'e F<espo,1dent criminally misconduc~ed himself ano znerefore :ha: he cannot be expected to remain a civic leader as per the Constitution. [16] In concluding the written submissions the Applicant con~ended that this was a fit and proper case for this Court to pronounce itself on the provisions of Articles 52(4 ), 155, 157(e) and 57(1) of the Constitution. [17] When the matter came up for hearing before us, on Thursday 101h October. 2024. the Respondent indicated that he had attempted to file a motion challenging the Court's jurisdiction to hear the Originating Summons but was denied permission by the Registry and advised to make his application before Court. That as his attempt to make the application before the Court had been denied too, he sought an adjournment to enable him to file his opposing affidavit. (18) Due to time constraints, we declined the application and stood down the matter briefly. When we resumed the sitting, the parties addressed us on both the substance of the Summons as well as our jurisdiction to entertain the Summons. For the sake of brevity, we will refer to the parties' arguments as and when necessary. l we Ccn co,1side· the Origi:iating Su-nmons o~ -::he iT'erits. I: was V.· 1\lsom :,osni who raised tne issue in his ora! submissions. He contendec t'.,a: this Court has no jurisdiction over t.1is matte, for two reasons. First on account of multiplicity of actions as the same issues arising from the same set of facts and involving the same parties, in which constitutional issues were raised, were already before the High Court, in cause No 2024/HB/ 27. [20] Secondly, that the Applicant cannot ignore the constitutional provisions on the mode of dealing with constitutional issues or questions that arise before a Court. Specifically, Article 128 (2) of the Constitution which provides that where a constitutional question arises in a court, the person presiding in that Court shall refer the question to the Constitutional Court. That accordingly, the Applicant should have raised the constitutional issue before the High Court and asked that Court to refer the issue to the Constitutional Court as opposed to commencing a fresh action. [21] ln reply, Mr lisimba, relied on the proceedings of 20111 September, 2024 to contend that the issue of a constitutional reference had been raised before the High Court. That raising the issue was as far as the Applicant could go as it was for the High Court to make the reference to the Constitutional Court (22j We have considered t'7e issue of jt.:risdrction o~d;na~i y whe;e a cor.s~itutiona1 c,ues~io;; o; issue arises in a1otner court, it must come to us by way of a constitutional reference as provided tor in Ar.icle 128(2) of the Constitution. This, as we stated rn Lloyd Chembo v Attorney General4 is necessary to ensure good order and comity between the courts. We may add tnat it also ensures that matters are commenced and concluded in the proper court empowered to make the relevant orders and attend to matters ancillary thereto. We have had occasion to pronounce on the law i1 the following cases among others. [23] In the case of Fredson Kango Yamba v Principal Resident Magistrate, Anti-Corruption Commission and the Attorney General 5 we said· Article 128(2) of the Constitution takes care of a scenario where a cons!ltut1onal issue arises in any court by providing for referral In such instances the court. on its own motion or on application by a party, can refer a consti tutional question or issue that arises in that court Where thrs 1s done, the referring this Courts frame court must determinati on . (emphasis added) the constitutional question or issue for I I The Court's guidance is that a party that 1s dissatisfied with the presiding perso n's decision refusing to refer an alleged constitutional question to this Court ought to ... initiate a sepa rate action for interpretation of the ,ssue by this Court in accordance w ith Order IV of the CCR We have consistently upheld these positions and we re -affirm them. [25) The Summons before us has come to us directly as opposed to coming by way of a constitutional reference however, in view of the peculiar circumstances of the case it is our firm view that it is properly before us. [26) We say so because the judicial review process that gave rise to the Constitutional issues before us seeks to enquire into the actions of the Applicant in conducting a Local Government by -election in Lukanga Ward on the grounds that the seat had become vacant following the conviction of the Respondent. (27) The Constitution not only specifies the forum for resolving Local Government election disputes, but also specifies when they are to be prosecuted It singles out the question of when a councillor's office may be said to have been vacated by stating in Article 159 ( 1) (b) of the Constitution. that the Chief Justice shall establish an ad hoc tribunal to hear whether the ,--·c wi·:,·n 3n ~av- c· ·1° ~l'nc ., , • · ¥ ..,I - II It .., ;, "::J • <1.. : : : : [28J Th,s is t'1e au~hority t>e, ,c: sect10, 96 o: t.,e ::lectoral 0 rocess Act l\io. 35 of 2016 (~PA) whic., ::irovices t:iat a question a~out whether a vacancy has occurred ,,., the o7f1:::e of counc1 lor w1i1 be neard using the oowe·s prac~ice a:id p,ocedure mod,fied as necessary o' an electron pe:;! on under Pa~ ,X of the =.?A. Settling tne question of whether a counc11,or"s office has become vacant must be done after the election has taken place [29) As t,e Cons,1tu!io1 a:,d ·e eva:it legislation provide that matters to do with co..inc,10,s are the prese;ve of LGETs it is apparent that the Judicial review process is not only mis-conceived but 1s a null.ty for lack of 1urrsd1ct1on on the part of the High Court. The High Court could therefore not make a valid referral to this Court We wish to add that even rf the matter had been prope•ly before a tribunal. it could only constitute a nomination challenge Furthermore 1: wo~ 1d have sti?I been a nullity due to e"luxion of time which started to run on 7,- August, 202~ after the Counc:I w~o:e to ,.i,e Applicant, thereby triggerrng Articles 158, 57 and 52(4) o' t'le Constit:. Jt1on. t follows cha: sLcr constitutional 'ssues r:,us: oe commenced '. Jefore me Const1tut1ona Court. Our conclusion is tha: there we~e no valid proceedinf;S subsisting ::>e7ore the High Court to facilitate a referral or to constitute an abuse of process arising from mu;ttplicity of actions (31) We now turn to the substantive issue. In doing so we wish to make it clear that the matter having come by way of our interpretative JUrisd1chon we will not delve into any personalized or contentious questions arising from the factual context but confine ourselves to interpreting the impugned constitutional provisions. Our intention is to prevent a violation of the Constitution from occurring in accordance with our mandate under Article 128 ( 1) (a) of the Constitution [32] The Originating Summons seeks interpretation of the following questions which we have recast for clarity· 1 Whether pursuant to Article 57 of the Constitution the prescribed period of 90 days w1th1n which to hold or conduct a by-election can stop running by virtue of a S:ay ansing from an apphcat1on for Judicial review or any other application 2 Whether pursuant to Article 52( 4) of the Const1tut1on the prescribed period of 21 days wrthin which to hear a challenge relating to nomination of a candidate can be enlarged by a Court in a judicial review application • j t, 1.,;;,et!ie: ire •~19/'l C'. Ju'i has ;1J'1sc'•c,io, ;:i c1:c•J;rve'1'. t:->e ,:i-ov;s·c,.,s oi .~r: cle 52(4 ) ,l-i:ough a Jud1cia1 ·ev,ew aopiicai1on \/\'~ether a conv1ct1on ,n crirmr,a' proceedmgs amounts to n ,scond. Jci as env1sas;ed 1-1 Ao11cle 157 (e; and 155 of the Corist1tu!ion of Zambia. 5. W:1ether an appeal vi-tho:Jt a slay of execution from a crnr.1nal conv1c11on stays the pe-:od for hold:ng by-eleci;ons as envisaged ,n Article 57 ( 1) of the Conslltur,on of Zambia. 6. W'lether any fu.:her or other relief that the Court may seem fit shou,d be awarded 7 Costs of this action be borne by the Respondent. [33] n his skeleton arguments which he augmented at the hearing, Mr Lis1mba. contended that the judicial review proceedings before the High Court were likely to derail the 90-day period stipulated rn the Constitution for the holding of a by-election . That the time had started running once a vacancy was declared hence the by-election had to be held by 30th October. 2024. That failure to hold the election within the 90 days would result rn a Constitutional crisis. He contended further, that the Judicial review proceedings constituted a nomination challenge and therefore had gone beyond the 21-day period stipulated in Article 52 ( 4) of the Constitution As authority, Mr Usimba cited our decision in Bernard Kanengo v Attorney General and the Electoral Commission of Zambia 3. (34] In his oral submissions, Mr Nsombosh1 agreed that the hmehnes stipulated m the Constitution must be respected. He however contended that there was no vacancy which had been properly declared in accordance with ·35; T ne sum of the Apol1cant's case is that Judrcia' review ::,roceec:irgs a;ic 11oeed ariy othe' c:>Jrt orocess however commencec anc prosecuted including court orders such as a stay cannot ignore or validly continue outside of the time Ii-ruts prescribed by the Consti:ut,on for the hotdrng of by elections The Apphcant makes specrfic reference to time limits in Articles 52 and 57 of the Constitution [36) In view of the approach we have taken, it 1s our considered view that these provisions which are impugned in questions 1, 2, 3 and 5 may be interpreted and the questions answered in a manner that builds on the interpretation in the Bernar d Kanengo3 case and thereby pre-empts the looming Constitutional crisis (37) It fottows that we shaft not deaf with Question 4 It cannot be dealt with as it relates to issues that go beyond the constitutional time limits in issue and cannot properly be resolved before us. It is in fact rendered otiose by the interpretation of the issues which are property before us. Question 6 on the other hand is not specific or substantive and therefore does not require ,L [38] Vl/e now ·etur:, ,o t-e ~o..ir c;uest,ons wnic,1 are suita::>le for 11terpretatio,, =or convenience we wi" deal wi:n :he issues raised i1 t;ie questions :ogetne~. In 001ng so, we focus only 01 the th1elines encapsuiated in :he impugned p'ov1s1ons (39] Our interpretation 1s as follows The supremacy of the Constitution is enshrined in Article 1 ( 1) o& the Constitution Article 1 (3) of the Constitution provides that the Constitution binds all persons in Zambia as well as State organs and institutions. Article 45 (2) (e) of the Consti1ution, on the electoral systems and process, provides that the process and system for administering elections shall ensure timely resolution of electoral disputes And Articles 48 and 49 of the Constitu!Jon provide that the system of administering elections and the process for electing a councillor among others shall be prescnbed, that is provided for in an Act of Parliament [40) Thus, whilst we must read together all related constitutional provisions, we do so, keeping in mind the leg1slat1on that has been enacted to effectuate the said constitutional provisions. The factual context before us, brings to mind the EPA and the LGA vaca,cy A,"'t!cle 52(4) o" the Constitution orov'des that a nornrna·:oil cnallenge must be ~,•eo Y.i::1:n 7 dais o" ,'le c!ose o" no-r.mat,o-1s and ·'ie court shall hear the case within 21 days of its lodgmen!. -r-re sum of tne ~o provrs,ors is t,at t:ie e.,tire p•ocess of a by-e1ect1on must take piace with:n 90 days from tne date when a vacancy occurs The time does not stop running. [42] In the Bernard Kanengo3 case we sard The ordinary or literal meaning of Article 52(4) reproduced above 1s simply that al cases fled before a Court of competent jurisd1ct on shoukl be concluded w1th1~ 2 1 days The Art,cie ,s clear and unambiguous rn its ter':'S It makes provision for a person to challenge a nom1nat1on before a Court or tribunal The Electoral Process Act designates the High Court as tre Court o' compete"lt junsotCt,on to hear a nom1nallon challenge under Article 521dJ Article 52(4) further provides that the person challenging a nor1inat1on under Article 52(4) should do so within seven (7) days of close of nomination It does not stop there. 1t goes to further provide that tc1e Court before which the riom,nat100 1s brought shall hear the case within twerly one (days) of the lodgment of the oet,t,on [43] The only court process provided for once a vacancy is decla•ed a,d notified to the Appllcart falls under Article 52 of the Const,tut1on Nor is there prov1s1on for appeal Hence the only constitutionally mandated legal challenge which maybe mou:ited during the 90-day by-election process 1s a I I -r-- ... ~ ... ,... ... . J ..... - ,... ... -:: .,; - extension o· re-a•ignmel"t! outsic:!e o' i7e prov,sions o~ t:1e Co"'ls:1:ut,on As we sa1c ,~ t,1e Bernard Kanengo3 case· .going by the Hakainde l-11chilema case . once the 21 days expires the High Cour1 Is divested of junsd1ctron rendering the case before It nuga1ory and an academic exercise (44] We reiterate that the election timetable set by the Applicant in section 28 of the EPA 1s subJect to the Constitution The import of this is that the law does not contemplate any other processes being undertaken during the 90 days let alone permit those processes to undermine the constitutional time limits. Hence, once the Applicant receives notification of a vacancy having arisen ,t 1s under compulsion to set in motion the by-election process and conclude it within the 90 days in Article 57 [45] Each party shall bear their own costs. M M. MUNALULA (JSD) PRESIDENT CONSTITUTIONAL COURT