Thursday, September 05, 2013

High Court stays poll nominations
By Mwala Kalaluka and Kabanda Chulu
Tue 13 Aug. 2013, 14:01 CAT

LUSAKA High Court judge Mugeni Siwale Mulenga yesterday granted an injunction to stay today's filing of nominations for Petauke Central, Malambo and Mulobezi parliamentary by-elections.

This follows Dora Siliya, Maxwell Mwale and Hastings Sililo's application for judicial review over their being barred from recontesting the seats they lost owing to corruption or illegal practices.

This is a matter where Siliya, Mwale and Sililo, who want to re-contest the nullified Petauke Central, Malambo and Mulobezi seats respectively, have sued the Attorney General and the Electoral Commission of Zambia over their ineligibility to re-contest the polls slated for September 5.

"Upon hearing counsel for the applicants and reading the affidavit of Dora Siliya femme sole, Maxwell Moses Boma Mwale and Hastings Sililo respectively, it is hereby ordered that the applicants be and are hereby granted leave to apply for judicial review," judge Mulenga stated in her order.

"And further that the filing of nomination papers for the Petauke Central, Malambo and Mulobezi parliamentary constituencies to be held on Tuesday, the 13th of August, 2013 be and is hereby stayed."

The matter will come for inter-partes hearing on August 15 before the judge.

The trio, through its lawyers, has argued that provisions of Article 65 of the Constitution of Zambia and the provisions of sections 22 and 104 of the electoral Act No. 12 of 2006 are not applicable to them. They are seeking the court to quash the decision of the Judiciary issued by the public relations officer and the decision of the acting Registrar of the High Court contained in a letter to the director of ECZ.

The trio also wants the court to quash the decision of the director of ECZ purporting to disqualify them from filing their respective nominations.

Siliya, Mwale and Sililo are further requesting the court to issue an order of mandamus to compel ECZ to perform its statutory functions under the provisions of Article 66 of the Constitution, section 33 of the electoral Act and accept nominations from them. The trio also wants the court to issue an order of prohibition restraining ECZ from barring them from filing the nomination papers on September 13th 2013 in their respective constituencies. Siliya, Mwale and Sililo also want the court to issue an order of prohibition restraining ECZ from conducting the filing of nomination papers today.

They are also seeking a declaration that provisions of section 22 as read together or in tandem with provisions of section 104 (6) and (7) of the electoral Act require that a person mentioned in the report by the High Court should be given an opportunity of appearing before the court and show cause why that person's name should not be so stated.

"A declaration that the purported report by the High Court issued under the hand of the acting Registrar does not conform with the provisions of section 22 as read together or in tandem with provisions of section 104 (6) and (7) of the Electoral Act," they stated.

The trio is further seeking a declaration that a press statement issued by a non-judicial officer has no legal effect and judicial activism could only be evoked by an appropriately constituted court.

Siliya, Mwale and Sililo are also seeking a declaration that the purported report by the High Court issued under the hand of the acting registrar does not conform with the provisions of section 22 as read together or in tandem with the provisions of section 104 (6) and (7) of the electoral Act.

"It is therefore irregular insofar as it purports to refer to illegal and corrupt acts which purportedly occurred over one year ago contrary to the provisions of section 129(5) of the Electoral Act," they stated.
The grounds on which the trio is seeking relief include illegality, procedural impropriety and unreasonableness.

"The decision of the ECZ insofar as it purports to disqualify the trio from contesting the by-elections is illegal. The decision of the acting registrar of the High Court purporting to issue a report is illegal. The decision of the Judiciary published in the media in so far as it purports to bar the trio is illegal and void," they stated.

They stated that particulars of non-compliance with the provisions of section 22 of the electoral Act were evidenced in the failure to give adequate opportunity to Siliya, Mwale and Sililo to be heard prior to the purported report of the High Court.

"There was failure to comply with mandatory provisions of section 104 (6) (7) and (8) of the Electoral Act whereby the High Court shall at the conclusion of the proceedings, prepare a report," they stated.

"Failure to state the name and particulars of any person by whom the corrupt practice or illegal practice was, in the opinion of the court committed as stipulated in section 104."

They stated that decision of the ECZ stating that it will not receive nomination papers from aspiring candidates affected by the nullifications by the Supreme Court was illegal. The ECZ postponed the filing of nominations for three of the four parliamentary by-elections which were initially slated for September 5 to today.

The ECZ's action was in the wake of the Judiciary's statement that candidates whose election was nullified on account of electoral malpractices were not eligible to re-contest their seats.

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