Dora Siliya is free to stand in the forthcoming Petauke Central Constituency.
Not even the politically compromised Anti Corruption Commission (ACC) can deter her from contesting because they are time barred.
The Electoral Act Number 12 of 2006 section 129 (5) provides that, “no prosecution for an offence against this Act shall be commenced after the lapse of one year from the date on which the offence is alleged to have been committed.”
Lawyers representing Ms. Siliya, Eric Silwamba, Jalasi and Linyama Legal Practitioners told the Daily Nation that the Electoral Act number 12 of 2006 was clear on the matter and it was therefore
unattainable to legally prosecute the matter.
“We observe that there have been several Legal Opinions coming from a cross section of society videlicet, Civil Society Organisations, Political Parties and Members of the Legal Profession. There is an insinuation that our client will be prosecuted for the purported offences.
However, if the concerned parties had read the Electoral Act number 12 of 2006 in its entirety they would have reached the inescapable conclusion that Ms. Siliya cannot be prosecuted at all,” said Lubinda Linyama.
Mr. Linyama said that there was a clear statutory limitation placed on any prosecution to be instituted pursuant to the provisions of the Electoral Act number 12 of 2006.
He said that the provision was framed in no uncertain terms and in the circumstances the aspect of prosecuting Ms. Siliya must be put to rest as it was legally untenable on account of being statute barred.
He said that it was common cause that the allegations contained in the Election Petition were made by Leonard Banda and originated from the activities of the campaigns in the period July-September 2011.
According to officials from the Anti-Corruption Commission (ACC), Police and the Office of the President, senior Patriotic Front (PF) officials were forcing the security wings to dispatch officers to arrest Ms. Siliya in Petauke, UPND Malambo Constituency candidate Maxwell Mwale and Hastings Sililo (UPND) in Mulobezi on allegations of corruption and illegalities in order to stop them from filing in their nominations.
Mr. Linyama said that ACC observations on the matter cannot stop Ms. Siliya from contesting because the matter was not prosecutable under the current scenario.
And the Anti-Corruption Commission (ACC) has said that its mandate was to investigate and prosecute electoral corruption.
ACC spokesperson Timothy Moono said that the institutions mandated was limited to corrupt practices by way of bribery only as prescribed under section 79 of the Electoral Act No. 12 of 2006.
“In line with its mandate, therefore, the Commission has studied eight (8) Judgments and picked only two for further investigations in order to establish whether sufficient evidence exists to prove a case beyond any reasonable doubt as required in a criminal prosecution. These investigations are currently ongoing and the time factor will not have an effect on the prosecution of offenders provided sufficient evidence will be gathered as aforesaid,” he said.
Mr. Moono said the Electoral Act No.12 of 2006 Section 22 (b) states that, “any person who is convicted of any corrupt practice or illegal practice or who is reported guilty of any corrupt practice or illegal practice by the High Court upon the trial of an election petition under this Act shall not be qualified for election as a member of the National Assembly for a period of five years from the date of the conviction or of the report, as the case may be.”
The Commission has since advised political parties to stop the practice of fielding candidates whose elections have been nullified due to corrupt and other illegal practices, adding that the move should be strongly discouraged as it promotes corruption during elections.
“The Commission would therefore like to advise all Zambians to desist from engaging in corrupt and other illegal practices at all times including during elections and to uphold values of integrity.”
…as LAZ clears Dora
The Law Association of Zambia (LAZ) has said that the demands by the Patriotic Front that the candidates whose seats were nullified should not be considered for adoption were invalid.
LAZ President James Banda said Section 104 (6) (b) of the Electoral Act of 2006 was clear and that the candidates were free to participate in the coming by-elections.
The case of Paul John Fimino Lusaka vs John Cheelo (1979) Z.R..214 (HC) made it very clear that the power to prepare a report was discretionary. Only the presiding Judge could make such a determination.In the absence of the report, there was nothing that barred both Dora Siliya and Maxwell Mwale to take part in any election because it was over a year after the High Court gave a verdict and that the DPP could not prosecute the matter now.
The LAZ President said there was no legal merit for political parties to pressurise the ECZ, because the Commission could only disallow a person from participating in an election after the DPP had prosecuted the matter and if there was evidence of a conviction on a corrupt or illegal practice or a report being furnished to the Commission by the Registrar of the High Court in terms of the provisions of Section 104 of the Electoral Act.
He said as far as the Association was concerned the candidates were free to participate in the by-elections.