Majority of Zambia's constitutional court: We are bound by this high court decision

26 March 2021 · Carmel Rickard

When the constitution sets a minimum education level for members of parliament, what should be done about a candidate, accepted for nomination to parliament and ultimately voted in, who turns out not to have satisfied the requirements? Five judges of Zambia’s constitutional court split on this significant question, leaving the MP concerned, Lawrence Nyirenda, safely in his place.

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Zambia’s constitutional court, last word on all constitutional matters, has been considering an application brought by a former member of the military and a member of Zambia’s diplomatic corps, Bizwayo Nkunika.

Unsuccessful in the 2016 elections, Nkunika wanted to the court to consider whether the successful candidate, Lawrence Nyirenda, should be allowed to continue in office as an MP despite the fact that he did not meet the minimum education requirements, stipulated in the constitution, to stand for and be confirmed as an MP.

Surely, once it was established that he did not have the required qualifications Nyirenda should be removed from office, Nkunika argued.

Contest

Nkunika also complained that Zambia’s electoral commission should be held to have contravened the constitution, because it allowed Nyirenda to contest the election even though he did not qualify. Moreover, it allowed Nyirenda to continue in office despite knowing that he did not have the qualifications.

In the end, three judges of the court found that although Nyirenda did not have the necessary qualifications, he had not acted unconstitutionally. Nor had the commission. This was because a high court judgment delivered in 2016 gave an interpretation to the minimum qualification provisions that would have meant Nyirenda’s qualifications might have been accepted.

The majority found the high court was, at the time, a binding judicial authority on constitutional interpretation – this was before the creation of a dedicated constitutional court – and so the commission had been obliged to follow its decision.

Stability

The majority went on to interpret and clarify that the constitutional requirement, correctly understood, would have excluded Nyirenda. However, the judges said that they had to be cautious since ‘decisions of this court are not intended to turn the justice delivery system on its head’.

The stability of the legal system was paramount, and the court’s decisions should ‘generate incremental improvements’ in ‘substantive and procedural justice’, rather than jeopardising ‘what has worked well in the past’.

In other words, although they disagreed with the high court on how to interpret the constitution’s educational requirement for MPs, they were unwilling to declare that decisions made in terms of that high court decision were unconstitutional and to be set aside.

Shielded

The order of the majority therefore found that Nyirenda and the commission had not acted unconstitutionally ‘based on the prevailing interpretation’ of the relevant section of the constitution. The orders then went on to re-interpret the section and the meaning of the education requirement stipulations.

President of the constitutional court, Hildah Chibomba, disagreed with this outcome, however, saying she could not conclude that the earlier high court decision shielded Nirenda and the commission from the claim of unconstitutional behaviour.

That high court judgment ‘should not override, suspend or oust the authoritative interpretation [of the education requirement section] made by this court,’ she said.

Infraction

‘In my view, any act that contravenes the constitution … is an infraction of the constitution’. Such an act would be unconstitutional and illegal from the start.

She also interpreted the high court judgment in such a way as to place responsibility on the commission to verify that qualifications met the constitutional requirements. This the commission had not done, however.

Judge Chibomba expressed her strong view that the high court decision should not be the basis for allowing someone who was not eligible for office to continue as an MP.

Dereliction of duty

The constitutional court had original and final jurisdiction and was given the ‘delicate task of interpreting the constitution’, she said. Since the court’s interpretation became the law, it had to be ‘conscientious’ in the way it interpreted the constitution.

A second member of the court, Justice Palan Mulonda, also dissented. Like Justice Chibomba, he questioned the majority view that it was bound by the high court’s interpretation. To allow Nyirenda to continue as an MP, though disqualified under the constitution, would be ‘illegal’ under the constitution, and ‘a dereliction of duty on our part as a court’, he said.

Carmel Rickard

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