NULLIFICATION WITHOUT A ‘RED CARD’ IS MEANINGLESS
THE Constitutional Court (ConCourt) upheld its 2022 ruling that nullification does not entail disqualification and therefore Mr Bowman Lusambo and Mr Joseph Malanji were eligible to contest the Kabushi and Kwacha constituency by elections respectively (Daily Nation, March 16 2023).
I will leave the legal review to Mr Isaac Mwanza, because I am not a lawyer, but I will only make commentary on the political and ethical ramifications of the ruling. What this ruling has done is simply to make nullification of seats an academic exercise.
Of the two cases, I have sympathy for Mr Malanji because his seat was nullified on the basis of lack of a Grade 12 certificate which in my view is irrelevant. There is no need to discuss it.
But for Mr Lusambo, his case is different and relates to corruption and violence. His victory was soaked in blood.
The ConCourt even wrote the report to the Anti-Corruption Commission, so that it could pursue the matter of corruption cited in the case.
In the same breath however, the ruling implicitly orders a re-match without serious sanctions such as disqualification for the culprit who has caused the nullification.
What is the value of this ruling which now is a case law in the promotion of ethical leadership? Nothing.
Our electoral process is ridden with corruption and violence as the Lusambo case shows, but in the face of overwhelming evidence, the only thing the ConCourt can do is nullify the seat.
In many by-elections that follow such ruling, it is the same candidates that parties adopt and they go to use the same electoral strategies bordering on corruption and violence. And so, this judgement only promotes the culture of impunity.
As a matter fact, there is no longer value of aggrieved persons petitioning election results because nullification does not carry significant sanction as disqualification, it is a sheer waste of resources.
What really is the philosophical basis of ruling of this nature? Legal philosophers must guide us. It seems to me that this ruling is all about individual liberty, yet the nullification and disqualification is means to an end - public interest. And in this case, public interest is about the preservation and promotion of leadership integrity.