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Zambia: High Court in Lusaka Throws Out Case Questioning Citizenship of Incumbent President

(Aug. 11, 2011) On August 9, 2011, the High Court in Lusaka, Zambia, threw out a petition by the main opposition party, the Patriotic Front (PF), seeking a declaratory judgment to enjoin the Movement for Multiparty Democracy (MMD) from nominating Rupiah Banda, the incumbent Zambian President, as a candidate in the next presidential elections, scheduled for September 20, 2011. (High Court Throws Out President Banda Parentage Case, ZAMBIAN WATCHDOG (Aug. 9, 2011).) The petition named Zambia's Attorney General, the MMD's national secretary, and the Electoral Commission of Zambia as defendants. (ZAMBIAN WATCHDOG, supra.)

At issue was the citizenship of the incumbent President's father. Zambian law requires that to be a candidate for election as president, a person must, among other qualifications, be a citizen of Zambia and both his/her parents have to be citizens by birth or descent. (The Constitution of Zambia Act, § 34(3) (May 28, 1996), Zambia Parliament website.) The PF argued that the President's father was born in what is today known as Malawi, and this disqualifies him from standing as a candidate for president in the next elections. (Court Clears Zambia's Banda to Contest Presidency, REUTERS (Aug. 9, 2011).)

The defense counsel raised a preliminary objection (a motion to dismiss) in which they argued that the High Court lacked jurisdiction to adjudicate the matter, an argument based on section 41 of the Zambian Constitution, which specifically states:

(2) Any question which may arise as to whether –

(a) any provision of this Constitution or any law relating to election of a President has been complied with; or

(b) any person has been validly elected as President under Article 34;

shall be referred to and determined by the full bench of the Supreme Court. (Constitution of Zambia, supra.)

In the end, however, the court appears to have dismissed the petition merely on the ground that it was directed at a person, the incumbent President, whom it did not name as defendant. The court held that any adverse decision on the incumbent President, who was not named in the petition and thus not party to the proceedings, would be tantamount to breaching the rule of natural justice. (Court Dismisses PF's RB Petition as PF Vow to Appeal to the Supreme Court, LUSAKATIMES.COM (Aug. 9, 2011).)