RESIGNATION OR WITHDRAWAL? LUSAKA CENTRAL

LUSAKACentral Constituency has triggered new legal debate. What really transpired there? Let us look at the background.

Ms Charity Lumpa, a PF aspiring candidate, resigned from the party after being left out of adoption. She then filed as Independent candidate on May 18, 2021 and her nomination was validly confirmed at the close of the nominations.

Three days later, May 21, 2022, she announced her withdrawal of her candidature as Independent candidate. She indicated that a letter had been sent to the Electoral Commission of Zambia (ECZ) to formally withdraw from the race.

She wrote: “It is with gratitude that I have withdrawn my candidature and participation as an independent Member of Parliament in the race for Lusaka Central Constituency.”

I have not seen the content of the actual letter but will proceed on the basis of her statement made public on her Facebook page that she “withdrew” from the race.

Thereafter, nothing happened and other candidates carried on with campaigns unhindered.

On June 23, 2021, however, the ECZ opened the Pandora’s Box when it announced that Lumpa “resigned” and consequently caught up under Article 52(6) of the Constitution of Zambia. And there lies a legal problem. Resigned from what? Can an independent candidate resign?

You see, withdrawal of candidature is not covered under Article 52(6) of the Constitution. Withdrawal is covered under The Electoral Process Act No. 35 of 2016 in section 31(2) which reads:

“A nomination submitted under subsection (1) may be withdrawn at any time, before the expiry of the period appointed for lodging nomination papers in respect of the constituency concerned, if the candidate delivers to the returning officer a written notice to that effect.”

Simply put, withdrawal of nomination can only take place before closure, which was May 18, 2021, in this case. Once that period has passed, you cannot withdraw. That is the reading of this provision.

Let us look at Article 52(6) of the Constitution. It reads and I quote:

“Where a candidate dies, resigns or become disqualified in accordance with Article 70, 100 or 153 or a court disqualifies a candidate for corruption or malpractice, after the close of nominations and before the election date, the Electoral Commission shall cancel the election and require the filing of fresh nominations by eligible candidates and elections shall be held within thirty-days of the filing of the fresh elections.”

This Article only covers three (3) scenarios in which an election can be canceled and call for fresh nominations. Firstly, it is when a candidate dies after nomination like in Mandevu constituency. Secondly, it is when a candidate resigns after nomination like is case of Mpulungu constituency. And the third is when the court has disqualified one of the candidates. There is no mention of withdrawal of candidature.

Now did Ms Lumpa resign? It appears she merely rejoined her party - the PF - which she had left a few days earlier. Can that be said to be a resignation as to trigger the operation of Article 52(6)? That is the moot question.

Black’s Law Dictionary (10th edition) defined resignation as “the act or instance of surrendering or relinquishing an office, right, or claim” or “a formal notification of relinquishing an office or position.” So, maybe, it can be argued that she relinquished a right or claim as an “independent” and therefore qualifies to be a RESIGNATION!

Food for thought!

All this point to the fact that our Constitution needs serious cleaning up!