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IN THE CONSTITUTIONAL COURT 2021/CCZ/0047 HOLDEN AT LUSAKA (CONSTITUTIONAL JURISDICTION) IN THE MATTER OF: ARTICLE 1(2)(5), 2 AND 128 (3)(b)(c) OF THE CONSTITUTION OF ZAMBIA, CHAPTER 1 OF THE LAWS OF ZAMBIA IN THE MATTER OF: ARTICLE 52(3) OF THE CONSTITUTION OF ZAMBIA AS READ TOGETHER WITH SECTION 30(l)(C) OF THE ELECTORAL PROCESS ACT NO.35 OF 2016 AND REGULATIONS 11(6) AND 20(2) OF THE ELECTORAL PROCESS (GENERAL) REGULATIONS 2016, STATUTORY INSTRUMENT NO 063 OF 2016 IN THE MATTER OF: ALLEGED CONTRAVENTION OF ARTICLE 52(3) AS READ TOGETHER WITH ARTICLE 100(l)(H) IN THE MATTER OF: RELEASE OF DECLARATION OF ASSETS AND LIABILITIES BY PRESIDENT HAKAINDE HICHILEMA BETWEEN: SEAN TEMBO (Suing in his capacity as party President of the Patriots for Economic Progress) AND CONS TIT HIOHAL COU*i ELECTORAL COMMISSION OF PETITIONER ZAMB 2Q22 1STrespondent 2nd respondent ATTORNEY GENERAL P O REGISTRY 7 DOX 50067. LUSAKA ; ] CORAM: Mulenga, Mulonda, Munalula, Musaluke, Chisunka, JJC. On 9th December, 2021 and 14'" March, 2022 For the Petitioner: In Person For the lstRespondent: Mr. M. Bwalya, Legal Officer (In House) For the 2,KI Respondent: Mr. M. Muchende SC, Solicitor General and Mr. P. Shambulo, Principal State Advocate MAJORITY JUDGMENT Mulenga, JC delivered the majority decision of the Court. Ji

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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

Latitud: -14.531405690615703

Longitud: 26.540894169033784

Country Location (vinculado Case Law): Zambia

Decision Date: 14 mar 2022

Case Status: Cerrado

Case Outcome (Procedural)

Motion Denied

Case Outcome (Disposition)

Injunction or Order 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 Act

Source Name and URL: zambialii

Collection

CIPIT

Date Updated: 22 jul 2024

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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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