Amb. Dr. Elias Munshya

By E. Munshya, LLM, MBA, MDIV. (Barrister & Solicitor)

On May 10, 2016 at Kabwe Justice Dominic Y. Sichinga issued his decision in the Sibongile Zulu v. Electoral Commission of Zambia and Attorney General case. I provide an analysis of the decision using a question to answer format.

Why was the case decided in the High Court instead of the Constitutional Court? The 2016 amendment to the Constitution of Zambia has created the constitutional court as the court of competent jurisdiction to hear and determine constitutional issues. However, establishing the constitutional court on paper is far much easier than actually operationalising it. Even if President Edgar Lungu has already sworn in the new judges of the constitutional court, the court is yet to sit because it takes more than judges to run the judiciary. You need courtrooms, reporters, clerks, paper, ink, toner and broom sticks. To avoid leaving any gap in constitutional litigation, the Chief Justice of Zambia, as the head of the judiciary, issued a judicial directive stating that as the country awaits the operationalisation of the constitutional court, constitutional issues will continue to be heard the same way as previously: through the high court. That being the case, there was nothing illegal or irregular about Justice Sichinga of Kabwe hearing the Sibongile matter.

What was at stake in the case? The case was brought by a woman, Ms. Sibongile Zulu who had the intention to stand for political office. She has some GCE education and a diploma from the Chartered Institute of Purchase and Supplies (CIPS). According to the guidelines issued by Electoral Commission of Zambia, Ms. Zulu would not qualify to stand as a candidate. Justice Sichinga was asked to decide three questions.

1. What is the meaning of grade 12 or its equivalent as a minimum academic qualification?
2. Does Article 70 of the constitution prevent the nomination of a candidate who does not have a grade 12 but holds tertiary qualifications?
3. Which body has the responsibility to determine the credibility of the tertiary institution and qualification?

These questions arose, not really because of what the constitution says, but rather how the Electoral Commission of Zambia and the Examinations Council of Zambia chose to interpret the constitution. Had both ECZs been a little more reasonable in their opinion of the constitution, this case would not have even gone to court. So in this dispute, there is what the constitution says, how administrative bodies interpret what the constitution says, and a citizen who challenges what the administrative body contends is the correct interpretation.

Did Justice Sichinga rule that G12 qualifications have no value? Again, we must say no. Justice Sichinga’s role was very limited. He was not ruling on the academic value of a G12 certificate. He was merely making a ruling as to what the constitution means when it states that the minimum academic qualification is the G12 certificate. Justice Sichinga was not trying to categorically quantify or qualify what is good education and what is not. The question was simple: having regard to the purpose of having minimum education standards for parliamentarians, would a person like Ms. Zulu be excluded from running for office?

Why did Justice Sichinga go against the Grade 12 Requirement? Justice Sichinga has not gone against the constitution’s grade 12 requirement. If the constitution had stated in explicit terms that Grade 12 was “the” only qualification for office, Judge Sichinga was not going to disturb such an unambiguous provision. In the case of Article 70, however, it was couched in the language that left a wide spectrum of qualifications and on that basis a woman like Ms. Sibongile with a stellar record in business and life, would satisfy that spectrum of qualifications.

Can a person have tertiary education if they do not have Grade 12 certificate? Justice Sichinga answered this question by referring to affidavits filed by both the Examinations Council of Zambia and the Zambia Qualifications Authority, Zambians do go on to further tertiary education even without G12 certificates through flexible entry schemes such as mature entry. The mature entry scheme admits adults into university or college based on practical experience and not G12 qualification. It is ridiculous to suggest that university degree holders who went to university without having passed G12 would be disqualified from becoming members of parliament. In fact, under the rules both ECZs issued, Kenneth Kaunda, Simon Mwansa Kapwepwe and Harry Nkumbula would not qualify to be MPs. What nonsense! KK went up to grade nine and then went on to Chalimbana to train as a teacher. If we are to follow ECZ guidelines, KK would not meet the G12 guidelines. This is where the law comes in to provide an interpretation: would a person like KK be disqualified? Isn’t KK’s education superior to or at least equivalent to Article 70’s grade twelve requirement?

Can Sichinga’s decision be reversed on appeal? In litigation, there is an important factor that must be considered before a party goes to court, and if they go to court, whether they will appeal a decision. Litigators must ask themselves not what the law says, but rather how would a judge look at this matter? Contrary to popular belief, stories win court cases. Initially, both ECZs should have listened to Ms. Sibongile so as to avoid going to court. ECZ should have asked themselves, how would a judge look at this case? Ms. Sibongile had a very good case to make out and definitely had a story that could attract the attention of any justice. If ECZ appealed this decision, they would lose again on appeal. I just cannot see any Supreme Court justice reversing Sichinga’s decision. Supreme Court justices such as Mumba Malila, Ireen Mambilima and several other judges have shown themselves to be very much alive to current social issues particularly with regard to gender equality, I cannot just imagine them reversing Judge Sichinga and ruling that Ms. Sibongile is disqualified from running for office.

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Citation: Munshya, E. (2016). Commentary on Justice Sichinga’s Ruling in the Grade 12 Requirement Case. Elias Munshya Blog (www.eliasmunshya.org). May 26, 2016.