By Isaac Mwanza
A member of one opposition political party that successfully filed the presidential nomination asked this question today: Can we change our running mate at this point? My answer was that the law offers an option, dependent on what happens to a running mate: resignation or death (God forbid!)
1. Effect of Resignation or Death of a Running Mate
The first step to answering this question is to draw a parallel of what happens when a presidential candidate resigns or dies before the run-off in the presidential nomination as per clause (3) of Article 102 of the Constitution of Zambia. In terms of Article 102(3): –
“The presidential candidate who assumed the place of the previous presidential candidate in accordance with clause (2) shall appoint a running mate.”
Readers should take note that this does not talk about what happens if a running mate is one that resigns. But the courts would find the provision discriminatory if the same cannot be applied to when a running mate resigns or dies, as the Court did in the case of Attorney General and Another v Lewanika and 4 Others (Supreme Court of Zambia Judgment No. 2 of 1994) when the Court was faced with a similar debate around the then Article 71(2)(c) of the Constitution of the Republic of Zambia. Under that Constitution, Article 71(2)(c) (now repealed) read:
“Article 71(2)(c) (repealed).
A member of the National Assembly shall vacate his seat in the Assembly:
in the case of an elected member who becomes a member of a political party other than the party of which he was an authorised candidate; if he is an independent, joins a political party.”
The Supreme Court observed that “the article is in total silence as to what happens to a member “who resigns from the party that sponsored his candidature and does not join another party” and that situation is not expressly covered. There can be no doubt there is a lacuna or a void in this article.”
The Court then held that “whenever the strict interpretation of a statute gives rise to unreasonable and an unjust situation, it is our view that judges can and should use their good common sense to remedy it – that it by reading words in if necessary – so as to do what parliament would have done had they had the situation in mind. We, therefore, propose to remedy the situation in this case by reading in the necessary words so as to make the constitutional provision fair and un-discriminatory. Consequently, the necessary words to be read in are “vice versa”
Hence Article 71(2)(c) should now read:
71 (2) A member of the National Assembly shall vacate his seat in the Assembly: in the case of an elected member, if he becomes a member of a political party other than the party, of which he was an authorised candidate when he was elected to the National Assembly or, if having been an independent candidate, he joins a political party or vice versa.”
Again, it may be argued that the provisions in Article 102 are restricted to the time when a presidential candidate resigns due to ill-health or dies during the run-off but does not provide for what happens in the first round, that is, between nomination and the time of the general election. This may a good argument but may be held discriminatory again because the situation can also happen earlier.
2. A running mate can be replaced if Article 52(6) is triggered
However, regardless that the Constitution has fixed the election date for a General Election in Article 56 clause 1, Article 52 clause 6 of the Constitution provides what happens when a candidate resigns after filing nomination but before the election date.
“Article 52(6) reads:
Where a candidate dies, resigns…, 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 nominations.”
This article is clearer: if a candidate, be it presidential or running mate resigns or dies (God forbid!), 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 nominations.
Article 52(6) is the only opportunity for any party to replace a candidate if the candidate is becoming the custom in South Africa’s ANC. Zambia is lucky that all these candidates who have resigned or withdrawn have not done so after close of nomination and before the election. If they did, it would have cancelled the entire nomination and put the election in jeopardy as the Electoral Commission, in obedience of Article 52(6) is required to conduct fresh nomination and hold the election “within thirty days of the filing of the fresh nominations.”
Conclusion
The only sure way to replace a presidential running mate after the filing of the nomination is for that running mate to resign for any various reason as provided under Article 52(6) of the Constitution. The resignation under this Article mandatorily cancels that particular election and calls for fresh nominations of all candidates. The other way is by resigning due to ill-health and draw a parallel from Article 102 clauses (2) and (3) but this would need the Constitutional Court to hold that the similar instances apply to resignations done during the first round of the general election.
The last articles Isaac have published have subsequently been trashed by the Concourt. I pay particular focus to the grade 12 certificate, wherein the court ruled that a minimum is required in addition to the supplemental higher qualifications.
He argued, together with my good friend counsel Edwin Mbewe, that higher qualifications would override the grade 12 certificate, I situation I did not agree with.
Only bringing up the above to gloat.
But I must say he is on firm ground here.
Our Constitution doesn’t make much sense, I don’t even understand why spend so much time on a defective document
Has upnd bewitched Nkandu Luo because she is a threat in Parliament.? Why talk about what the constitution says about the running mate this time. It doesn’t make sense to me.
Upnd is so desperate for state house that they are even wishing PF running mate dead or resign. Stop commenting on PF issues.
The constitution as it is, is very good because upnd and other opposition parties didn’t want to debate anything on the constitution.
Article 52(6) is an interesting article indeed.
Article 52(6) of our Constitution is an interesting article indeed
His articles makes interesting readings and I love the way this guy has argued his last 3 cases in court.
This PF surrogate has smelt PF outrage over the appointment of Luo as a Running Mate by ECL. The majority of PF supporters don’t think appointing such a controversial and unpopular character like Prof. Luo was a wise move on the part of ECL. Luo is damaged goods. Her record as Minister of Traditional Chiefs,Health, Higher Learning Institutions etc is appalling. Luo will not add value to ECL’s tattered image. PF will loose more votes by appointing Luo as a Running Mate. The ECL/Luo combination spells disaster for PF. Mwanza is contemplating how PF can damage control the problem caused by ECL’s illogical and unstrategic appointment. We shall see how PF gets out of this Luo mess. Time will tell.
This Constitution was never written well. Now I see why Wynter Kabimba and Sata were reluctant to pass it. It was passed because of pressure from these tuma civil Societies. But this has created serious gaps and can be source of problems
These constitution writers or scripters why do they leave issues in the balance….a huge amount of money is wasted on constitution drafting; you mean you can not just copy and paste other tried and tested democracies
Luckson Siapeeza – It was never passed because of pressure from anyone but Lazy Lungu himself when has this man ever refused or read anything thoroughly.
Interesting. I’m still trying to figure out why this known PF surrogate would find it necessary to discuss replacement of a Presidential running mate at this point. What is PF up to?
Now made up my mind. am voting for HH to keep Nkandu Luo away from the presidency. Gaaaad knows HH is many times a safer risk than Luo!
Appears Edgar has just signed to lose this election. What scares me the most with Edgar’s choise is that it might win and Nkandu Luo would be one step to the presidency. The woman excels by pissing people off
Now made up my mind. am voting for HH to keep Nkandu Luo away from the presidency. Gaaaad knows HH is many times a safer risk than Luo!
Appears Edgar has just signed to lose this election. What scares me the most with Edgar’s choise is that it might win and Nkandu Luo would be one step to the presidency. The woman excels by pissing people off.
Team LULU.PF fyaume.UPND ku wire. Ba Lungu/Luo=Team LULU.
Our constitution really needs to be reversed, it’s complicated.A running mate may dy at unknown circumstance and the
Constitutional articles and clauses doesn’t address this.
We need competent LAW MAKERS in Zambia.
Is this question from upnd who might want to change the running mate to a To.nga one after people have voted for a non To.nga one
Article 71(2)(c) alone has cost the country by-elections never seen before anywhere in the world. It needs to be amended as soon as new parliament is sworn in.
Kaizer, how true is the article Field Ruwe wrote about you.
Kaizer, how true is the article Field Ruwe wrote about you about your mental issues
LT , IS THIS FAKE KAIZAR ON YOUR EDITORIAL COMMITTEE… HIS TANTRUMS IS AGAINST THE CONSTITUTION. TRIBALISM IS EVIL. HE MAY THINK HE IS SAFE BLOGGING FROM THE UK BUT TIME WILL CATCH UP WITH HIM….LT PLEASE REMOVE ANY TRIBAL SENTIMENTS…