NEW Labour Party leader Fresher Siwale says Edgar Lungu is an illegal President because he was not validly elected in 2016.

But the Electoral Commission of Zambia says it is misrepresentation to suggest that the 2016 elections did not take place.

Siwale told The Mast that President Lungu and all other candidates who were elected were not validly nominated in the last election.

He claimed that the August 11, 2016 election was a non-event as the current law governing the conduct of elections in Zambia was not complied with.

The filing of nominations for office of president began on May 27, 2016 and ended on June 3, 2016 whereas the Electoral Process Act, which repealed and replaced the Electoral Act, 2006, came into force on August 12, 2016.

All election documents, including the presidential, running mate election nomination papers, ballot papers, oath of affirmation, collation of results form came into force on August 12, 2016, a day after people had cast ballots.

Siwale argued that all nominations for office of president, running mate, member of parliament, councillor, mayor, and council chairperson were null and void as the current law under which they were nominated and elected did not exist.

“This is because the electoral Act didn’t apply retrospectively,” he said. “If one may argue that the nominations were done under the old electoral Act, it makes matters even worse because in the old Act there was no provision for presidential running mate. So where did the Electoral Commission of Zambia get the forms to conduct elections in 2016?” he asked.

Siwale said the electoral law used in the administration and management of elections, including among other things, the design of ballot papers, printing, storage, transportation and distribution, collation of votes and results came into effect on August 12, a day after voting.

He wondered how the elections were conducted in the absence of the law.

“That’s the question; how were results collated and announced? Because all these aspects of the law were not in place. I contend that the process was a nullity; the 2016 presidential elections didn’t take place,” Siwale said.
“Documents are there to attest to the fact that no one was a candidate to the office of President in the 2016 elections,” he said. “Everybody took the eyes off the ball and now we find ourselves in a constitutional crisis. The office of President is vacant, the National Assembly is sitting illegally because there is no National Assembly, no National Assembly member was elected during the 2016 elections. All councils around the country are all illegal.”

Siwale argued that the documents that govern the conduct of elections only came alive on August 12, 2016, a day after voting took place.

“Before that time there was no single document; there was no nomination form, there was no oath or affirmation form, there was no declaration form, there was no ballot, no form to collect results. So the question is: what document did they use to conduct the 2016 elections if all these documents did not exist?” Siwale asked. “We as a country must begin to question ourselves, how have we allowed these illegalities to continue in this country? I challenge the Law Association of Zambia to state their position in view of this election scandal, which happened in 2016. All senior lawyers, I challenge them over this scandal. Why have they allowed this scandal to unfold before our eyes?”

Siwale said the issue goes beyond politics.

“We are in a constitutional crisis and we need to find a solution to this crisis that we are facing,” Siwale said.

Reminded that President Lungu was a lawyer, Siwale remarked: “I have always told you that Jonathan Mutawale is not a lawyer, he is masquerading as Edgar Chagwa Lungu. If he was a lawyer by now he must know that the elections in 2016 did not take place.”

Siwale, who is in court over defamation of President Lungu, said whatever the Head of State had done was illegal.

“And to the international community, those who are giving Lungu money, loans, you stand to lose because he has no executive power to commit Zambia to any agreement or to contract any loan. All appointments and dismissals, including that of [Lieutenant] General Chimese (former ZAF commander) are null and void because he has no executive powers to dismiss Chimese,” Siwale said. “He (Chimese) must challenge it in court because you see the issue here is that for a person to be President of the Republic of Zambia must be duly elected. Was Lungu duly elected? For him to be duly elected, he must have been validly, the word validly nominated candidate. Now if he was not a candidate in the last election, how can he claim to have been duly elected?”

Siwale said President Lungu was not validly nominated so he could not be a duly elected President.

“Not even Hakainde Hichilema was a candidate in the last election because he was not validly nominated as a candidate, though he is petitioning an event that never took place,” Siwale argued.

Asked why he did not participate in the process, Siwale said he saw the anomalies and that was the reason on August 9, 2016 he filed a challenge on the referendum in court.

“I saw all these and I put before court all these documents (Electoral Act and Regulations). But knowing that what we call our Constitutional Court is just a bunch of…clerks who instead of interpreting the Constitution, they chose to interpret their own emotions. A Constitutional Court cannot interpret emotions,” Siwale said. “This is what has led to this crisis, so as Zambians we have to find a way of coming out of this crisis.”

Asked if he had any suggestion, Siwale said: “Yes, by way of constitutional proclamation. But Lungu has no executive power because he is tainted with fraud, he cannot issue that constitutional proclamation.”

Asked who would issue the proclamation if not the Head of State, Siwale said: “When the President does not have executive powers, it means that the executive powers rests with the people, so stakeholders must meet and dialogue to come out of this crisis. The legitimacy will come from the people.”

Siwale urged eminent citizens to lead the way to help Zambia come out of the constitutional crisis.
Told that the election could have been held under the 2006 electoral laws, Siwale said the Electoral Act, 2006 had no provision for running mate vice-president.

“So once there is an anomaly with one candidate, it affects the other one. It means the entire process becomes null and void. Mind you the candidature is one, so if there is an anomaly with the running mate, it also affects the principal candidate.”

Siwale wondered which form the ECZ collected results of the elections of August 11, 2016 since the form on which it was supposed to have collected results became effective on August 12.

He said if ECZ used the older form, it was nullified.

“If they recorded on the new form, where did they get it on the 11th of August [since it only came into effect the following day)? The mandate came into effect on the 12. So the people of Zambia must just start preparing for an election to elect a new government because the current one is illegal, it was not elected. The office of President is vacant, the National Assembly, all business that they have conducted is illegal,” Siwale stressed. “All the business that councils around the country are transacting is illegal because there was no single councilor or council chairman elected in 2016.”

But ECZ spokesperson Margaret Chimanse said the Constitution of Zambia Act No. 2 of 2016, the Electoral Process Act No.35 of 2016, and the Electoral (General) Regulations governed the last elections.

She said elections were subject to international and domestic laws and cannot be held without such laws.

On nominations that were conducted days before the current laws came into force, Chimanse said they were conducted under the current Constitution Act No. 2 of 2016, which was the law in force.

“Forms were executed administratively as the ECZ is entitled and has responsibility to ensure that these are available,” Chimanse said in response to a query.
“Elections were conducted under the new law and not the old act. As stated, the elections were held under the current constitution and the Electoral Process Act.”

Asked for the ECZ’s view on one claiming there was no election held in 2016 as what transpired in 2016 was not sanctioned by any force of law and that therefore were null and void, Chimanse said: “That would be a misrepresentation as all the elections, Presidential, National Assembly, Mayoral and Councillor were held under the current laws, e.g. in the old laws, there was no provision for mayoral elections but these were held in 2016 because the ECZ was operating under the new laws.”

“Also the Returning Officer was the Chairperson of the ECZ instead of the Chief Justice as per the previous law.”

She said on August 11, 2016 the country had a periodic election as stipulated in the Constitution of Zambia and under international obligations.