State asks ConCourt to rule independent candidates must meet two-month requirement

The State has asked the Constitutional Court to interpret Article 51(a) of the Constitution as requiring independent candidates to have ceased being members of a political party for at least two months immediately before election day, rather than at the time of nomination.

The matter arises from a petition filed by the Consortium of Civil Societies for Good Governance and Constitutionalism, which is challenging the interpretation of the constitutional provisions governing independent candidates.

The consortium, led by Clifton Mayaba Chifuwe, has cited the Attorney General and the Electoral Commission of Zambia (ECZ), seeking the court’s guidance on whether compliance with Article 51(a) should be assessed before nomination or only by election day.

It also wants the court to determine whether non-compliance can lawfully be used as a basis for rejecting nomination papers under Article 52(4) of the Constitution.

In his response, Attorney General Mulilo Kabesha has opposed the petition, arguing that the Constitution clearly provides when the qualification for independent candidates becomes operative.

Kabesha submitted that the Constitution deliberately ties the two-month requirement to election day and not the nomination process, adding that any interpretation linking it to nomination would undermine the intention of the provision.

He argued that the Constitution establishes a fixed qualifying period that is not subject to alteration through judicial interpretation or administrative discretion.

“The two-month period prescribed in the Constitution is fixed and cannot be varied by any court or authority,” Kabesha stated.

He further argued that the requirement did not operate retrospectively in relation to the nomination process but only becomes relevant as election day approached.

According to Kabesha, compliance with Article 51(a) should therefore be assessed based on a candidate’s eligibility on polling day.

He also submitted that where an independent candidate fails to satisfy the constitutional requirement, the issue should not be determined during the nomination process but should instead be raised through an election petition after the declaration of results.

Kabesha further argued that Articles 51(a) and 52 of the Constitution, which govern qualifications for election and nomination procedures respectively, must be read together in a manner that promotes consistency within the constitutional and electoral framework.

In support of his position, he relied on preparatory constitutional materials, including the 2013 Technical Committee Report and the Parliamentary Select Committee Report.

According to Kabesha, those reports demonstrate that the framers of the Constitution intended Article 51(a) to prevent individuals from immediately contesting elections as independent candidates after leaving political parties, by requiring them to observe a two-month separation period before election day.

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