IN every contest, there has to be a winner and a loser.
It follows suit, therefore, that even in an electoral contest there has to be one winner and never two. Otherwise, this would be going against the orderly management of competitions.
The case in point is the tightly contested just ended Thursday’s general elections in which nine presidential candidates jostled for the presidency. It is spontaneously in order that only one had to be declared winner while the others were losers.
It would be unthinkable and absurd to ever imagine that they would all emerge winners of such a contest. In democracy, though, it is commonly held that there are no losers for the simple fact that each one singularly contributed to a democratic process of competition.
It is a common feature of many democratic nations to give room for the losing candidate(s) in national elections if not satisfied with declared election results to petition the courts of law. Such provisions are expressly enshrined in the Republican Constitution.
Article 103 of the Constitution of Zambia (Amendment) No. 2 of 2016 makes provision for presidential election petition in an event one of the losing candidate(s) finds it necessary to challenge the validity of the declared winning presidential candidate.
(1) A person may, within seven days of the declaration of a President-elect, petition the Constitutional Court to nullify the election of the President-elect on the ground that— (a) the person was not validly elected; or (b) a provision of this Constitution or other law relating to presidential elections was not complied with.
(2) The Constitutional Court shall hear an election petition relating to the President-elect within fourteen days of the filing of the petition.
(3) The Constitutional Court may, after hearing an election petition— (a) declare the election of the President-elect valid; or (b) nullify the election of the President-elect and Vice President-elect.
(4) A decision of the Constitutional Court under clause (3) is final.
(5) Where the election of the President-elect and Vice President-elect is nullified by the Constitutional Court, a presidential election shall be held within thirty days from the date of the nullification.
The indication by the United Party for National Development (UPND) to petition the declaration of Patriotic Front (PF) presidential candidate Edgar Chagwa Lungu by Electoral Commission of Zambia (ECZ) chairperson Justice Esau Chulu as President-elect exposes some grey areas in the Constitution.
Going by the foregoing constitutional provisions, Article 104 (3) subsequently stipulates as follows “Where an election petition is filed against the incumbent, under Article 103 (1), or an election is nullified, under Article 103(3) (b), the Speaker shall perform the executive functions, except the power to— (a) make an appointment; or (b) dissolve the National Assembly.”
What this constitutional provision entails is that for as long as there will be an election petition, the Speaker of the National Assembly shall act as President for the period of time that the Constitutional Court hears the matter brought forward.
Simply put, there shall be no President despite having the incumbent or President-elect. The Constitution creates a monster that puts the nation in an awkward position.
What if the election petition is frivolous and only meant to bring disorder in the country? Is such a petition necessary?
Objectively speaking, it is usual that there is high tension in the country after such hotly contested elections. It is quite a dangerous phase considering that some contestants could still be bitter because of the loss, and it is not quite safe for the country not to have a President in office.
As such there is an inescapable need to amend this constitutional provision as it directly puts the security of the country at stake.
We hold the view that there should have been a preceding provision enshrined in the Constitution to afford a preliminary dispute resolution mechanism before the court petition to ascertain the validity of such a court action.
In view of such concerns, we are confident that the Constitutional Court will handle the disposal of the petition expeditiously to avoid lengthening the period of tension in the country which is not good for foreign investment inflows and economic development.