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The Constitutional Court has clarified that a person seeking to contest an election as an independent candidate must not have been a member of a political party during the two months immediately preceding election day.
The court further ruled that any challenge to an independent candidate’s compliance with that constitutional requirement cannot be made during the nomination process but may only be pursued through an election petition after the election.
Delivering judgment, Constitutional Court Judge Pixie Yangailo said the court’s interpretation of Article 51(a) of the Constitution is that the two-month requirement is tied to the date of the election and not the date of nomination.
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The ruling followed a petition filed by the Consortium of Civil Societies for Good Governance and Constitutionalism, led by Clifton Mayaba Chifuwe, against the Attorney General and the Electoral Commission of Zambia (ECZ), seeking the court’s interpretation of Article 51(a).
The petitioners argued that the constitutional provision governing the eligibility of independent candidates required judicial clarification.
Article 51(a) provides that a person is eligible to stand as an independent candidate if they are not a member of a political party and have not been a member of one for at least two months immediately before the date of the election.
The court held that the framers of the Constitution deliberately chose election day as the relevant reference point and not the nomination date.
“The period included is the minimum of two months before election,” the court held.
The judges said interpreting the provision as requiring compliance at the nomination stage would amount to introducing an additional qualification not contained in the Constitution.
The court observed that although Article 52 allows challenges to nominations within seven days after the close of nominations, non-compliance with the two-month requirement cannot be determined at that stage because the constitutional period extends up to election day.
It ruled that where it was established that a candidate who contested as an independent remained a member of a political party within the prohibited two-month period before polling day, the issue may only be raised through an election petition after the election.
The judges also criticised the failure to align the electoral calendar with the constitutional requirement, observing that ECZ could have avoided the dispute by structuring the nomination timetable to accommodate the two-month period.
The Constitutional Court further held that Article 51(a) did not operate retrospectively and ordered that each party bear its own costs.
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