THE Supreme Court has upheld a High Court judgment which allowed former Petauke Central member of Parliament (MP) Dora Siliya and two others to file nominations in three parliamentary by-elections.
This means Ms Siliya, former Malambo MP Maxwell Mwale and their Mulobezi counterpart Hastings Sililo are free to re-contest their seats subject to consideration by the Electoral Commission of Zambia (ECZ).
The Supreme Court has, however, set aside High Court judge Mungeni Mulenga’s order compelling the ECZ to receive nominations from Ms Siliya, Mr Mwale and Mr Sililo without looking at other qualifications.
Ms Siliya and Mr Mwale were MMD MPs and Mr Sililo was a United Party for National Development (UPND) law-maker.
This is in a case in which former Attorney-General Mumba Malila appealed to the Supreme Court against Ms Justice Mulenga’s judgment, which allowed Ms Siliya, Mr Mwale and Mr Sililo to file their nomination papers and applied for a stay of execution of the judgment.
Acting deputy Chief Justice Marvin Mwanamwambwa said in a judgment delivered yesterday that contesting a parliamentary election and voting are constitutional rights which should not be easily taken away from a person.
Mr Justice Mwanamwambwa said the court does not accept Mr Malila’s submissions that Ms Justice Mulenga should have barred the respondents from re-contesting the by-elections, solely on the basis of the Supreme Court judgments without the report and procedure provided for under Section 104 (6) and (7) of the Electoral Act.
“We, hereby, uphold the learned trial judge’s decision that the Supreme Court judgments are not guilty reports, within the meaning of Section of 104 (6) and (7) of the Act,” Mr Justice Mwanamwambwa said.
He also said the court recommends that Parliament considers amending the Electoral Act and include the Supreme Court in the generation of guilty reports.
Mr Justice Mwanamwambwa, who read the judgment on behalf of six other Supreme Court judges, said even after a Supreme Court judgment on appeal, a report by the High Court under Section 104 (6) and (7) should be made before a person can be barred from contesting a parliamentary election.
He said ECZ is mandated to act only on the court’s conviction and the reports issued under the law by the trial judge to bar a person from voting and contesting an election and not press statement or reports from other judicial officers.
Mr Justice Mwanamwambwa said ECZ should not act on a mere press statement, such as the one issued by judiciary public relations officer Terry Musonda and a report by the High Court’s registrar dated August 8 and August 9, 2013.
He said it was not in order for the ECZ to act on the “two” invalid documents to bar the three former parliamentarians from re-contesting the parliamentary by-elections.
Mr Justice Mwanamwambwa said the statement and reports issued on August 8 and August 9, 2013 were highly irregular and improper and should never happen again.
Mr Justice Mwanamwambwa said the action was an attempt to bar the three former MPs from contesting parliamentary elections outside the due process of the law.