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Cases cited: 1. Wypych v Poland Application No. 2428/2005(October 25, 2005) 2. Union of India v Association for Democratic Reforms and People's Union for Civil Liberties Appeal Civil Appeal No. 7178 of 2001 3. Secretary, Ministry of Information and Broadcasting, Government of India and Others v Cricket Association of Bengai and Others (1995) 2 SCC 161 4. Nkandu Luo v Doreen Sefuke Mwamba and Attorney General CCZ Selected Judgment No. 51 of 2018 5. Abuid Kawangu v Elijah Muchima CCZ Appeal No. 8 of 2017 6. Benjamin Mwelwa vThe Attorney General and Others 2020/CCZ/007 7. Dipak Patel v The Minister of Finance and The Attorney General 2020/CCZ/005 8. Christopher Lubasi Mundia v Sentor Motors (1982) Z. R. 66 Legislation referred to: 1. 2. 3. 4. 5. The Constitution of Zambia (Amendment) Act No. 2 of 2016 The Constitution of Zambia (Amendment) Act No. 18 of 1996 The Constitution of Zambia Act No. 1 of 2016 The Electoral Process Act No. 35 of 2016 The Electoral Process (General) Regulations Statutory Instrument No. 63 of 2016 6. The Interpretation and General Provisions Act Chapter 2 of the Laws of Zambia 7. The Electoral Act No. 12 of 2006 8. The Electoral (General) Regulations Statutory Instrument No. 92 of 2006 Other Materials referred to: 1. 2. 3. 4. Wild, S. E. Wester's New World Law Dictionary, 7th Edition, 2006 Black's Law Dictionary, revised 4th Edition Black's Law Dictionary, 11th Edition Bennion, F Statutory Interpretation (1992) 2nd Edition INTRODUCTION [1] This Petition was filed on 27th September, 2021, by Sean Tembo (Petitioner) in his capacity as party president of the Patriots for Economic Progress (PEP), a registered political party, against the Electoral Commission of Zambia (1st Respondent) and the Attorney General (2nd Respondent). The Petitioner is seeking the following reliefs: J2

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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
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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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