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fortified in so saying by a holistic reading of Articles 56, 272 and 274. Relevant portions of the said Articles are as follows: 56. (1) A general election shall be held, every five years after the last general election, on the second Thursday of August 272. Parliament may enact legislation to give effect to an Article or a provision in this Constitution which— (b) provides for a process or procedure to be taken, followed or prescribed; (g) generally requires something to be prescribed. 274. A function conferred in this Constitution may be performed as occasjon requires, (emphasis added). [91] For the aforesaid reasons I would have found that the Respondents contravened Article 52(3) by virtue of their omission to initiate and facilitate the timely passing of legislation to give effect to Article 52(3) and as a consequence thereof failing to publish the declaration of assets and liabilities of presidential election candidates. M.M. Munalula (JSD) Constitutional Court Judge J37

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Tembo (Suing in his capacity as party President of the Patriots for Economic Progress) v Electoral Commission of Zambia and Another 2022

Case Law

Country

Zambia

Country Location

Latitude: -14.531405690615703

Longitude: 26.540894169033784

Country Location (linked Case Law): Zambia

Decision Date: Mar 14, 2022

Case Status: Closed

Case Outcome (Procedural)

Motion Denied

Case Outcome (Disposition)

Injunction, Order, or Motion Denied/Vacated

Keywords

Elections

Court Name: Constitutional Court of Zambia

Case Number: 2022 ZMCC 9

Case Summary: Facts: Sean Tembo, the petitioner, in his capacity as party president of the Patriots for Economic Progress, filed a petition against the Electoral Commission of Zambia (ECZ) and the Attorney General. Tembo argued that the ECZ failed to publish the statutory declaration of assets and liabilities for President Hakainde Hichilema during the 2021 general election, thereby contravening Article 52(3) of the Zambian Constitution.

Issue: Whether the failure to publish the declared assets and liabilities of President Hakainde Hichilema by the ECZ contravened Article 52(3) of the Zambian Constitution. Whether the Court can order the ECZ to publish the information in the absence of prescribed legislation. Rule: Article 52(3) of the Zambian Constitution requires the publication of information contained in a candidate's nomination paper and affidavit, as prescribed by law. The interpretation of "prescribed" is key, as it indicates that such publication must be done pursuant to an Act of Parliament or regulations.

Analysis: The Court examined the requirements under Article 52(3) and noted that while the Constitution mandates the publication of candidates' information, including assets and liabilities, this requirement is subject to prescription by an Act of Parliament or regulations. The Court found that there were no legislative or regulatory provisions mandating the publication of presidential candidates' declarations of assets and liabilities. The lack of such provisions means that the ECZ could not be held in contravention of the Constitution for not publishing the information. The petitioner failed to prove that the ECZ breached the Constitution.

Conclusion: The Court concluded that the petition lacked merit as the constitutional requirement for publication was not given effect by the necessary legislative or regulatory provisions. Consequently, the petition was dismissed.

Case Significance: This case underscores the importance of having clear legislative and regulatory frameworks to operationalize constitutional requirements. It highlights the limitations of constitutional mandates that depend on further legislative action for their implementation. The judgment also emphasizes the need for timely legislative action to ensure constitutional provisions are fully effective.

This case also illustrates the principle that courts cannot enforce constitutional provisions in the absence of corresponding legislation. The decision serves as a reminder to legislative bodies to act promptly to avoid gaps in the implementation of constitutional mandates.

Related Law

The Constitution of Zambia

Source URL: zambialii

Collection

CIPIT

Date Updated: Jul 22, 2024

Primary Documents

Tembo (Suing in his capacity as party President of the Patriots for Economic Progress) v Electoral Commission of Zambia and Anor (CCZ 47 of 2021) 2022 ZMCC 9 (14 March 2022).pdf
English
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Tembo (Suing in his capacity as party President of the Patriots for Economic Progress) v Electoral Commission of Zambia and Another 2022

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