E. Munshya, LL.B., LL.M., M.Div.
Justice Christopher Mushabati, a commissioner at the Electoral Commission of Zambia (the “Commission”) has issued what seems to be an official directive from the Commission about the Grade 12 requirement for running in the 2016 elections. According to him, only a school certificate as defined by the Examinations Council of Zambia (the “Council”), will be used to satisfy the constitution’s Grade 12 requirements. Further, he has stated that those with tertiary education such as a degree, but do not possess the Council’s school certificate will not be considered. Justice Mushabati has additionally stated that this is the Commission’s official position and those aggrieved with the Commission’s interpretation of the 2016 constitution should take the matter to the Constitutional Court for determination.
Administrative bodies such as the Electoral Commission of Zambia and the Examinations Council of Zambia are expected to interpret the constitution and apply it accurately.
Particularly, the Commission as the body tasked with the conduct of elections in Zambia has the responsibility and the duty to interpret the constitution correctly and in keeping with trite constitutional principles. The problem here is not that the Commission has no responsibility, but rather that the Commission has taken a very wrong approach in the way they have interpreted the constitution’s Grade 12 requirements. Nowhere in the constitution is it stated that the School Certificate is “the” qualification for running. The constitution states that a person running for office must have the “minimum” of “Grade 12 certificate” or its “equivalent”. By its insistence that all candidates produce Grade 12 certificates, the Commission has made Grade 12 not as the minimum but as the only qualification thereby ignoring a clear constitutional imperative. Had the constitution sought to make Grade 12 the only qualification, the constitution would have so stated. It could have stated that a candidate must have a “Grade 12 certificate”, but the constitution has used words such as “minimum” and “equivalent”. With due respect ECZ commissioners: Mushabati, Chulu and Ng’andu have no right to read into the constitution their own wishes, no matter how noble.
Justice Mushabati and the Commission are wrong when they state that those with degrees but do not have secondary school certificates would not be considered. The honorable justice seems to be speaking like one who has not lived in the realities of our times. It is actually not true that one cannot have tertiary education unless they have secondary education. The idea that a degree or diploma held by a person who has no Grade 12 certificate is inferior to the one held by a Grade 12 holder is actually total nonsense. World-over, people have gone on to university and held higher graduate degrees without secondary school certificates. In any case, Justice Mushabati should know that a person with a degree or college diploma can still demonstrate that their degree is at least academically equivalent to a Grade 12 certificate. No matter how you look at it, there is no basis for Justice Mushabati and his Commission to exclude degree or diploma holders from running for office on account of a lack of a Grade 12 certificate.
Justice Mushabati says that those aggrieved should go to the Constitutional Court to challenge the Commission’s interpretation of the law. This idea that all of our disputes should end up in court is really counter-productive to the Zambian cause. We cannot live in a Zambia where even straightforward things should end up in court. We should only go to court to have courts help us resolve real constitutional disputes. The Grade 12 dispute that Justice Mushabati and the Commission are shoving down our throats is a very trivial dispute that can be resolved without resorting to litigation. But even if it were to end up in court, I am very confident that the Constitutional Court will hold that a person with any tertiary education either has an education superior to Grade 12, or does have an education that should be considered “equivalent” to Grade 12 education. At what cost, should we be going to court for this straightforward matter? Justice Mushabati and the Commission already have a tax-payer funded Attorney General as their lawyer, I would advise them to consult with Mr. Likando Kalaluka before they even begin making pronouncements that would be indefensible in the constitutional court. In any case, the taxpayers should not be made to foot the bill of court hearings before the Constitutional Court for a matter that should be straight forward. The sheer arrogance of asking that a Milenge aspirant go to the Constitutional Court to find redress for something this straightforward makes me cringe.
I appeal to the political parties in Zambia, to put aside their obsession with violence and engage Justice Mushabati and his Commission to come to terms and agreement over some of these disputes. Justice Mushabati and his fellow commissioners at the Electoral Commission of Zambia might have very good wishes about Grade 12, but they cannot put into the constitution their own ideas of what the constitution should mean. As stated by the late Justice Scalia, the “constitution says what it says and it does not say what it does not say.”
We appeal to President Lungu, president Hichilema and all stakeholders to let the Commission know that this matter can be resolved without the need for expensive litigation, but if Justice Mushabati wants to go to court, Zambians are ready to meet him there. But again, at what cost?
Suggested citation: Munshya, E. (2016). Justice Mushabati and the Electoral Commission of Zambia are Wrong on the Grade 12 Requirement. Elias Munshya Blog (www.eliasmunshya.org) (March 17, 2016)