By Kombe Mataka
ANTI-Corruption Commission (ACC) director general Gilbert Phiri says the commission is waiting with betted breath the report of the judgment that nullified the election of Bowman Lusambo as Kabushi PF member of parliament in August 12, 2021 elections.
Phiri told The Mast that it is in public interest that the report be issued “in next to no time” for possible onward action by ACC.
“From the judgment read out the court alluded to incidences of corruption and we have the mandate to fight corruption. Statutory mandate to fight corruption.
Therefore, we will await issuance of a report by the Registrar of the High Court because the law requires the Registrar of the High Court to issue a report. It (final judgment) was at the Constitutional Court yes, but remember the trial was heard in the High Court. If you go to the decided case of Charles Kakoma versus Christabel Ngimbu, the Supreme Court laid out the procedure in instances of this nature,” Phiri said.
“Where at the end of election petition, there is an allegation of corruption and the finding of corruption, it is then incumbent on the Registrar of the High Court to issue a report. When that report is issued, it is supposed to be furnished to the Electoral Commission of Zambia and it is also supposed to be furnished to the Director of Public Prosecution.
Now obviously because the Constitutional Court has alluded to corruption, the High Court also alluded to corruption, that report by the natural order of things must end up with the Anti-Corruption Commission because we are the body mandated to fight corruption. So we are waiting with betted breath to receive that report.”
Phiri said the ACC’s review of the report for possible prosecution was in public interest.
“There is this channel from the registrar, Commission (ECZ), Director of Public Prosecution, ultimately Anti-Corruption Commission. And it is in public interest that that report be issued in next to no time,” he said.
In the case of the nullification of the election of Joseph Malanji as Kwacha Constituency PF member of parliament, Phiri said where there is an incident of corruption or where a public body acts in dishonorable manner the ACC has a mandate to fight corruption.
“It is a serious mandate that we are exercising. If we receive a report of incidents of corruption, in the case you have referred to the Anti-Corruption Commission will take active interest and action in ensuring that first of all we investigate it and either see whether it is a matter where an official needs to be indicted or where we can suggest improved mechanisms in the procedures that are employed by Electoral Commission of Zambia.
But where there is an incident of corruption, pointing to a public official, I wish to reiterate and underscore the fact the Anti-Corruption will not cast a blind eye to that,” said Phiri.
And outgoing ECZ chief electoral officer Patrick Nshindano on Wednesday told The Mast that he would await a report from the legal team that witnessed the reading of the judgment to understand how Malanji could have filed for nomination without the requisite grade 12 certificate.
On Wednesday, the Constitutional Court confirmed the decision of High Court judge Kazimbe Chenda to declare Joseph Malanji’s election as void for not possessing a grade 12 certificate during his re-election
The court noted that Malanji during trial conceded that he was at Chililabombwe Secondary School from 1981 to 1983 and possessed a form 3 (grade nine) certificate and did not tell the court which school he attended to complete his secondary education but only asserted that he possessed a G12 certificate and the court would not know for sure that he obtained the same.
Constitutional Court vice-president Margaret Munalula, on behalf of the majority, ruled that judge Chenda cannot be censured for determining Malanji’s eligibility to contest in the August 12, 2021 general election as he did not possess the requisite academic qualification when filing in nomination papers in line with Article 70(1)(d) of the Constitution.
But in her dissenting judgment judge Mungeni Mulenga said mere assertions by UPND’s Charles Mulenga that Malanji did not have the requisite academic qualification were not sufficient to shift the burden of proof to him as there was no convincing clarity that he did not have the school certificate.
Malanji had appealed judge Chenda’s decision to nullify his election for lack of a G12 certificate and for engaging in electoral malpractice after Mulenga petitioned his election citing bribery and electoral misconduct.
Delivering judgement of the majority, judge Munalula said there was no conflict between Article 52(4) of the Constitution and 97(2)(c) of the electoral process Act in relation to eligibility as argued by Malanji’s lawyers as Section 54(2) creates an early opportunity to prevent an unqualified person to file in nomination.
“On a proper analysis of the law an action relating to the eligibility of a member of parliament under Article 70 (1)(d) of the Constitution is not statute barred by Article 52(4) of the Constitution from being considered by a court during the trial of an election petition hence the trial court was on firm ground to consider the question of eligibility for the appellant for election,” she said. “It was proved by a simple balance of probability that Malanji did not hold a grade 12 certificate at the time of his re-election.
The trial court appreciated the standard applicable in the matter before him which was an election petition furthermore he did so apply it, he was in firm grounds.”
Judge Munalula said the court has on several occasions pronounced itself on who bears the burden of proof in matter to do with election petitions as the burden lies upon the one alleging to prove all the allegations with congeant evidence to the required standard.
“Malanji did not testify to his grade 12 certificate in evidence in chief but during cross examination it was established that the appellant (Malanji) spent three years at Chililabombwe Secondary School from 1981 and obtained a form three certificate (grade nine) he did not confirm that he had a form three certificate but asserted that he had a grade 12 certificate (form 5),” the court noted.
“The appellant conceded that he did not tell the court at which school he was doing his grade 12 and he also conceded that the court would not know for sure that he has both the form 3 and grade 12 certificate.
He conceded that the court would not know for sure that he had a grade 12 certificate and his eligibility could be challenged before court.”