No proof of grade 12 school certificate, so re-election of Zambian former minister declared invalid

Read judgment

Controversial Zambian politician, Joseph Malanji, has failed to overturn a high court judgment nullifying his election in the 2021 national polls. A former minister of foreign affairs in the government of former President Edgar Lungu, Malanji was the successful candidate for a Kitwe consistency in that election. However, his rival for that seat, Charles Mulenga, challenged the validity of Malanji’s election, saying he did not qualify as he did not have a grade 12 certificate, a minimum requirement for election, at the time of his re-election in the August 2021 polls.

The high court upheld Mulenga’s complaint, finding Malanji had not been validly elected, and the former minister then appealed, with one of the grounds of appeal being that the judge had erred ‘when he held that [Malanji] did not hold a grade 12 certificate when in fact he did’.

Now, five judges of Zambia’s constitutional court have made their decision: by a majority of four to one, they have held that Malanji was not validly elected.

Helicopters

Malanji, a multi-millionaire, was arrested in March in connection with allegations of money laundering. Among other steps, the Drug Enforcement Commission seized Malanji’s two helicopters, saying they were suspected to be the proceeds of crime.

But the only part of Malanji’s history that concerned the constitutional court was the matter of his grade 12 certificate.

In the constitutional court, his legal team put up nine grounds challenging the high court’s decision, but a four to one majority of the court dismissed them all.

Although the lawyers put up a number of technical complaints about the high court decision, it was the question of whether Malanji actually has a grade 12 certificate that was always going to be central.

Technical

In the high court it was found that Malanji had not rebutted the allegation that he did not have the required certificate. Instead, he ‘mounted a legal technical challenge that the contention was not an issue at law as the challenge was statute barred and he had successfully [filled] in his nomination.’

In the high court, the question of whether Malanji qualified for nomination arose during cross-examination. He was asked which school he had attended and on which years. He named the secondary school and said he had spent three years there, receiving a form three certificate.

He also conceded that he had not shown the court a copy of his form three certificate and that the court would thus ‘never know for sure’ whether he in fact possessed such a certificate.

Credentials

Similarly, he said he had a grade 12 certificate but that he hadn’t produced it for the court to see, and conceded that this meant the court would ‘never know for sure’ that he held such a certificate.

Malaji further agreed that he had not told the court which school he had attended in order to get the grade 12 certificate. Asked by his legal team to explain this answer to the question about producing his grade 12 certificate, he replied: ‘There was no request for it, otherwise I could have brought my credentials.’

Evidential burden

The big question was whether the high court had shifted the evidential burden to Malaji, rather than it remaining with Mulenga to prove that Malji did not have the required certificate.

After a close scrutiny of the record, the constitutional court concluded that ‘there was sufficient evidence … solicited from [Malanji] during cross-examination to establish a prima facie case to the effect that [he] did not have a grade 12 certificate at the time of his re-election. That evidence which showed that [he] left secondary school after three years could not be discounted or disregarded simply because it was elicited through cross-examination. It was still evidence that supported [Mulenga’s] allegation.’

The judges said that they took judicial note that a grade 12 certificate was normally awarded after the completion of five years of secondary schooling. ‘That being the case, whether [Malanji] went further in his studies and was awarded a grade 12 certificate is within his peculiar knowledge. He ought to have adduced evidence to support his assertion that he did have a grade 12 certificate’.

Compel

They also closely examined the wording of the regulations relating to nominations and said that while they did not ‘expressly compel’ [Malanji] to produce his grade 12 certificate before court if there were to be a challenge to his eligibility, that ‘duty’ was implied, and flowed from the ‘constitutional/statutory nature of the office of Member of Parliament’.

The court added, ‘The grade 12 certificate issue did not arise in litigation between private parties but in litigation sanctioned by the constitution to establish whether [he] qualified to occupy a public/constitutional office.’

‘It is our finding, on the basis of the evidence on record which established a prima facie case, and that [Malanji] had peculiar knowledge of the issue, as well as, on a holistic reading of the law, that [he] bore the evidential burden to adduce evidence of the existence of his grade 12 certificate.’

There was no evidence on the record showing his grade 12 certificate, nor any evidence that he had gone beyond form three. ‘We are therefore of the firm view that [he] did not have a grade 12 certificate at the time of his re-election.’

Having dismissed all the grounds of Malanji’s appeal, the judges ordered that each party had to pay its own costs, given that the matter was an election petition and that the Electoral Process Act applied.