Noel Siamoondo and Ors v The Electoral Commission of Zambia and Anor (2016/CC/0009) (16 July 2016) – ZambiaLII

P,799 SELECTED JUDGMENT NO. 24/2016 IN THE CONSTITUTIONAL COURT OF ZAMBIA 2016/CC/0009 AT THE CONSTITUTIONAL COURT REGISTRY HOLDEN AT LUSAKA (CONSTITUTIONAL JURISDICTION) IN THE MATTER OF: ARTICLES 2 AND 128 OF THE CONSTITUION OF ZAMBI/\ (AMENDMENT) ACT NUMBER 2 OF 2016 IN THE MATTER OF: ARTICLE 153 OF THE CONSTITUTION OF ZAMBIA (AMENDMENT) ACT NUMBER 2 OF 2016 AS READ TOGETHER WITH ARTICLE 47(3) AND ARTICLE 60(l}(B) OF THE CONSTITUTION (AMENDMENT) ACT NUMBER 2 OF 2016 AND IN THE MATTER OF: A DECISION BY THE ELECTORAL COMMISSION OF ZAMBIA DATED 3RD MARCH 2016 AND THE RIGHT OF POLITICAL PARTIES TO SPONSOR PERSONS FOR NOMINATION OR ELECTION AS COUNCILLORS. BETWEEN: NOEL SIAMOONDO / 1" PETITIONER KELLY KAPIANGA � 2N° PETITIONER � YOUNG AFRICAN LEADERS INITIATIVE LIMITED 3Ra PETITIONER AND THE ELECTORAL COMMISSION OF ZAMBIA 1 RESPONDENT ST THE ATTORNEY GENERAL ND RESPONDENT Coram: Chibomba, PC, Mulenga and Mulembe, JJC. On 21st June, 2016 and on 13th July, 2016. For the 1st Petitioner: Present in person For the 2nd Petitioner: No Appearance J1 P.800 For the 3rd Petitioner: Mr. S M Dzekedzeke of Dzekedzeke and Company For the 1st Respondent: Mr. E Kamwi, In House Counsel For the 2nd Respondent: Mr A Mwansa, SC, Solicitor General and Major C. Hara, Principal State Advocate and Ms. M. K. Mukwento, Assistant Senior State Advocate u J D G M E Mulenga, JC, delivered the Judgment of the Court. Cases cited 1. Minister of Information and Broadcasting Services and Attorney General v Fanwell Chembo on his own behalf and on behalf of other members of the Media Institute of Southern Africa and Others (SCZ Judgment Number 11 of 2007), 2. Matilda Mutate v Emmanuel Munaile {SCZ .Judgment number 14 of 2007 3. Faustine Mwenya Kabwe, Aaron Chungu and John Sangwa v Judicial Complaints Authority and Attorney General (2011) 3 ZR 255 4. Ntombizine Mudenda v Attorney General (1979) ZR 245 5. The People v Fred M'membe, Masautso Phiri and Bright Mwape (1997) S.J 63 (HC) 6. Wynter Kabirnba (suing in his capacity as Secretary General of the Patriotic Front) v Attorney General and Another (2011) 2 ZR 491 7. Minister of Land affairs and Another v Slamdien and Others (LCC107/98)(1999) ZALCC 6, 8. Anderson Kambela Mazoka, Lt General Christon Tembo, Godfrey Kenneth Miyanda v Levy Patrick Mwanawasa, the Electoral Commission of Zambia, the Attorney General (2005) ZR 138 9. Attorney General and Others v Akashtnbatwa Mbikusita Lewanika and Others (1993} ZR 175 1 O. S v Mukwanyane and Another, 1995 ZACCJ 11. Cooney v Covell (1901) 21 N.Z.L.R. 106 12, General Nursing Council of Zambia v lng'utu Milambo Mbagweta (2008) ZR 105 (SC 13. Re Cuna (1889) 43 Ch.D.12 Le islation referred to: (i) Constitution of Zambia (Amendment Act) No, 2 of 2016, articles 2, 60,152, 153,154,157,164,167 and 266 (ii) Constitution of Zambia Act No. 1 of 2016 section 17 (iii)Constitution of Zambia Cap 1 (1996) article 21 J2 Works referred to P.801 (a) Chales E. Odgers, Craies on Statute Law, 5tt. Edition, (Sweet and Maxwell, London, 1952) (b) Bryan A. Gamer, Black's Law Dictionary 811 ' Edition, (USA Thompson Reuters, 2009) By a Petition dated 29th April, 2016, the 1 st , 2 11 and 3rct d Petitioners seek the following reliefs fron1 the 1st and Respondents: 2nd 1. A declaration that persons who intend to contest as councillors cannot be sponsored by political parties. 2. A declaration that local authorities as established by the Constitution are autonomous and therefore, political parties cannot sponsor councillors as this would compnse and/ or interfere with the performance of their duties. 3. An order that Regulations 22(1);- 22(2),· 23(1); 23(2) and 24 of the Local Government Elections Regulations are inconsistent with Article 60 and 152(2) of the Constitution and therefore, null and void. 4. That in view of the fact that this matter raises constitutional questions which are novel, each party should bear its own costs. The background to the Petition is that on 3rd March, 2016 the 1st Respondent issued a public notice in the Times of Zambia Newspaper which provided a checklist to persons who intended to participate as candidates in the 2016 General Elections. The notice stated that persons intending to file nominations as councillors should present a J3 P.802 letter from a political party, if sponsored by it. The said notice was exhibited as "NSKK2" to the affidavit verifying facts. In response to the said notice, the 1st and Petitioners wrote 2nd to the 1st Respondent on 301 March, 2016 contending that political h parties have no right to sponsor councillors on the ground that local authorities were now autonomous and as such, national and provincial administrations were not allowed to interfere or compromise with the local authority's right to manage its affairs. In the letter dated 13th April, 2016 the 1st Respondent replied that persons seeking election as councillors could choose to be sponsored by political parties by virtue of article 21 of the Constitution which guarantees the right of persons to belong to a political party of their choice. Dissatisfied with the above position of the 1st Respondent, the Petitioners filed this petition seeking the Court's interpretation whether or not political parties can sponsor persons seeking to be nominated or elected as councillors and whether or not regulations 22(2); 23( 1); 23(2) and 24 of the Local Government Elections J4 P.803 Regulations are inconsistent with articles 60 and 152(2) of the Constitution (Amendn1.ent) Act No. 2 of 2016. At the hearing of the Petition, the 1st Petitioner and the learned Counsel for the 3rd Petitioner, Mr Dzekedzeke, both relied on the skeleton arguments filed in support and in reply, which they augmented with oral submissions. In the filed skeleton arguments in support, the Petitioners referred to article 60(l)(b) of the Constitution as amended. It was argued that article 60(1){b) only grants a political party the right to sponsor candidates for election or nomination to a state office and that according to article 266, state office includes office of the President, Vice President, Speaker, Deputy Speaker, Member of Parliament, Minister and Provincial Minister. And that accordingly, political parties cannot sponsor persons to be elected or nominated as councillors, mayors or council chairpersons because these offices are not captured expressly or impliedly under the ejusdem generis principle within the meaning of 'state office' as defined. JS P.804 It was argued that the Petitioners' position is that although they acknowledge that the expression «state office" in article 266 is immediately follo\;ved by the expression "includes11 which suggests , that its definition is not exhaustive, however, the position of councillor cannot be said to fall within the spirit and intendment of the said definition based on the ejusdem generis rule. It was further argued that if this Court favours the literaJ rule or the purposive approach in determining the matter, it will come to an inescapable conclusion that councillors are not captured within the meaning of "state office" and therefore, political parties have no right to sponsor them. Further, that although political parties have now been given constitutional recognition, they can only exercise rights which have been expressly granted to them by the Constitution, and hence, they are obliged to promote the values and principles specified 1n the Constitution. And that the above arguments are supported by the fact that the Constitution as amended does not have any provisions J6 P.805 which suggest that a councillor would vacate office if he is expelled by the political party which sponsored him or, if he was an independent, he joi11.s a political party or if he resigns from the party which sponsored him. Nor does the Constitution have any provisions which would suggest that a councillor would become an independent if the political party which sponsored him is dissolved. It was pointed out that on the other hand, a member of parliament becomes an independent 1nember if the political party which sponsored him is dissolved. And therefore, that it is thus evident that political parties have no right to sponsor councillors. To further support the above position, we were referred to the portions of the Report of the Technical Committee on Drafting the Zambian Constitution attached as NSKKl" to the affidavit verifying facts. It was argued that those portions of the Report evidence the fact that the rationale for the article on local authorities was inter alia, the need to have civic leadership in which candidates for local government elections would not be sponsored by political parties. We J7 P.806 were, accordingly, urged to apply the rules of statute interpretation in interpreting the said provisions of the Constitution as amended. As regards the literal rule of interpretation, the Petitioners argued that it is trite law that where words of a statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. Therefore, that the question before this Court is whether councillors are captured within the definition of state office in order for political parties to exercise the right to sponsor them. To support their view that the words used in the above provisions of the Constitution should be given their natural and ordinary meanings, the Petitioners cited a number of decided cases by the Supreme Court of Zambia, including the following: (i) The Minister of Information and Broadcasting Services and Attorney General v Fanwell Chembo on his own behalf and on behalf of other members of the Media Institute of Southern Africa and Others1 (ii) Matilda Mutale v Emmanuel Munaile 2 (iii) Faustine Mwenya Kabwe, Aaron Chungu and John Sangwa v Judicial Complaints Authority and Attorney General3 J8 P.807 It was argued that these show that in interpreting statutes, the words used in the statute should be given their ordinary and natural meaning and that only when there is an ambiguity in the natural meaning, should the courts resort to the purposive interpretation. It was, therefore, the Petitioners' position that while it 1s acknowledged that the expression "state office" is immediately followed by the word "includes", suggesting that the definition is not exhaustive, the expression 'councillor' cannot be said to fall within the spirit and intendment of the said article by the ejusdem generis rule. To support this position, the cases of Ntombizine Mudenda v Attorney General4 and The People v Fred M'membe, Masautso Phiri and Bright Mwape5 were cited. It was further contended that the rule demands ejusdem generis that the words to be imported must be similar to all and not just part of the items in the list. Therefore, that under this rule, councillor cannot be read into the definition of 'state office' because it is not similar to the offices of President, Vice President, Speaker, Deputy Speaker, Minister and Provincial Minister because all these fall under Jg P.808 two of the three state organs as defined in article 266, namely, the Executive and the Legislature. Further, that article 152(2) proscribes the national government and provincial administration (which comprise the executive) fron1 interfering with a local authority's ability or dght to perform its functions notwithstanding that local authorities are accountable to the national government under article 156 of the Constitution. Furthermore, a distinction between the office of councillor and 'state office' is made clear in the definition of a public officer in article 266 where 'public officer' is defined as: "A person holding or acting in a public office, but does not include a state officer, councillor, a Constitutional office holder, a Judge and a Judicial officer." The Petitioners surmised that the use of state officer and councillor in the list above is illustrative of the fact that the two offices are not the same thing. As to when the purposive approach should be applied, the Petitioners submitted that article 267(1) of the Constitution seems to suggest that the Constitution should be interpreted using the purposive approach as it provides that: J10 P.809 "(1) This Constitution shall be interpreted in accordance with the Bill of Rights and in a manner that- (a) promotes its purposes, values and principles; (b) permits the development of the law; and (c) contributes to good governance.'' Therefore, that it is imperative to look at the historical origins of the prov1s1ons relating to local authorities and to consider the Constitution as a whole 1n order to find the intention of Parliament. In support thereof the cases of Wynter Kabimba (suing in his capacity _ as Secretary General of the Patriotic Front) v Attorney General and Another6 and Minister of Land Affairs and Another v Slamdien and Others7 were cited on the need for the court to adopt a purposive approach in interpreting the various provisions and consider the historical origins. It was argued that in the recommendations of the First Draft Constitution, the Technical Committee in its Report put it as follows: "A political party has a right to ... (b) sponsor candidates for election to any public office other than to provincial assemblies or district councils" (emphasis theirs) It was contended that from the above, is clear from the outset that ) the Constitution was intended to do away with political parties right J11 P.810 to sponsor candidates to the office of councillor and that there is nothing in articles 4 7 (3), 153 and 154 which suggests that political parties have the right to sponsor persons for no1nination or election as councillors. Further that article 157(2) does not envisage a councillor being removed on the ground of ceasing to be a n1en1bcr of the political party that sponsored him. And that section 12 of the provides that Councillors are Local Government Act, Chapter 281 to be elected in accordance with the provisions of the Local Government Elections Act while article 164 (4) of the Constitution envisages that· some aspects of the election of councillors will be set out in a statute to be enacted by Parlia1ncnt. The Petitioners also argued that article 2 of the Constitution gives them the right and duty to protect and defend the Constitution. And that since they have raised an issue of public interest, they should not be condemned in costs should this petition be found to be without merit in line with the holding in the case of Mazoka and Others v Mwanawasa and others8 in which the Supreme Court stated that in the interest of the proper function of our democracy, J12 P.811 challenges which are permitted by the Constitution and which are not frivolous should not be inhibited by unwarranted condemnation in costs. In augmenting the written submissions, the 1st Petitioner submitted that section 17 of the Constitution of Zambia (Amendment Act) No. 1 of 2016, provides that there vVill be a new structure of local government. It was argued that under this new structure, members of parliament, who were previously also men1bers of the councils, are no longer members of the council as provided under article 153 of the Constitution. And that councillors will no longer be expected to vacate office if, having been sponsored by a political party, they resign or become independents. Therefore, the petition has merit. Mr. Dzekedzeke, on behalf of the 3rd Petitioner, in augmenting the written arguments submitted that the spirit of the Constitution in corning up with a new local government structure was to instil a sense of independence fro1n political influence in councillors in the J13 P. 812 conduct of their duties as civic leaders as per article 152. Hence, the petition has merit. In opposing this Petition, the learned counsel for the 1st Respondent, Mr. Kamwi, also relied on the filed skeleton arguments in opposition. It was submitted in the said skeleton arguments that articles 60(1) and 266 should be read in tandem with article 21 ( 1) of the Bill of Rights which provides as follows: "(1) Except with his own consent a person shall not be hindered in the enjoyment of his freedom of assembly and association, that is to say his right to assemble freely and associate with other persons and in particular to forin or belong to any political party. ... for the protection of his interest." It was submitted that both articles 60(l)(b) and 266 on definition of 'state office' do not expressly preclude a person who seeks to be elected as a councillor from being sponsored by a political party of his choice. That these articles are actually consistent with article 21. And that it is trite law that other articles of the Constitution cannot supersede the Bill of Rights. Hence by providing the checklist, the 1st Respondent meant to merely recognise that a candidate vying for the office of councillor had a right to belong to a political party of their choice. J14 P.813 Furthermore, that this Court should take judicial notice that nominations of councillors took place on 30th and 31 May, 2016, sl thereby rendering this petition an acade1nic exercise. And that allowing this petition to succeed would not be in the public interest as nominations of councillors country-wide would be rendered invalid and that this would have the net effect of jeopardising the general elections scheduled for 11th August, 2016. In augmenting the 1st Respondent's skeleton arguments, Mr. Kamwi submitted that no constitutional prov1s1on 1s superior to others. Therefore, that articles 153 and 154 should be read 1n tandem with other constitutional provisions including article 21 of the Bill of Rights. The learned Solicitor-General, Mr. Mwansa, SC, also relied on the arguments in the 2nd Respondent's skeleton arguments filed which he augmented with oral submissions. It was argued in the said skeleton arguments that in light of the provisions of articles 47(3) and 153(4) of the Constitution on the election of councillors, there is no prohibition on sponsorship by political parties of J15 P. 814 candidates for the position of councillors. Further, that article 164(e) provides that the election of coU11.cillors shall be prescribed and therefore, that the Local Governrnent Elections Regulations as prescribed do not contravene the Constitution as there is no prohibition in the Constitution on the sponsorship of councillors by political parties. It was argued that it would therefore, be a misnomer to suggest that this cannot be provided for in subsidiary legislation. Hence, that Regulations 22 and 23 of the Local Government Elections Regulations are not in contravention of the Constitution. In support of the above arguments, the case of Anderson Mazoka v Levy Patrick Mwanawasa8 was cited in urging us to apply the literal interpretation rule in interpreting articles 153 (4) and 164(e) of the Constitution as amended. It was also argued that Article 266 which defines 'state office', docs not exclude the right of political parties to sponsor candidates to the office of councillor. J16 P. 815 In augmenting the 211d Respondent's written submissions, the learned Solicitor General argued that the constitutional provisions should not be read in isolation but be construed together. And that these should not be literally interpreted but purposively and that the Court must be alive to the intended cure to any mischief in the law. He referred to the case of Attorney General and Others vs Akashambatwa Mbikusita Lewanika and Others9 on principles of interpretation of statutes. He added that article 8 of the Constitution sets out the values and the principles of democracy and constitutionalism and that under article 60(2), political parties are enjoined to promote the national values and principles as provided in the Constitution. The learned Solicitor General also referred us to the South African case of v 10 where that court S Mukwanyane and Another borrowed from a Canadian case of Arab v. B.A, 1985 Vol. 13 CCR 64 on the need to interprete constitutional provisions in the light of guaranteed rights. He surmised that it is desirable and has been shown by the spirit of the Constitution that local authorities should J17 P.816 operate independently. However, that this does not relate to the rights of individuals to be sponsored by political parties which is guaranteed under article 21. In reply, the Petitioners relied on the arguments in the skeleton arguments in reply filed. We do not intend to reproduce them in detail as they are in most either a repetition or amplification of the arguments in support. Suffice to say that we have read them and that we will take them into account in resolving the issues raised in this matter. In reply, the Petitioners argued that articles 60( 1 )(b) and 266 are stand alone provisions and are not stated to be subject to article 21 that deals with freedom of association by belonging to a political party or association of one's choice while article 60 deals with rights of political parties. It was added that the petition cannot be rendered an academic exercise because any election or nomination which is not in accordance with the Constitution is illegal and void ab initio. And that allowing the petition would be in the public interest because J18 P.817 this Court wou]d be exerc1s1ng its duty by g1v1ng effect to the Constitution. Hence the Court should not be seen to turn a blind eye to illegality or sacrifice the Constitution at the altar of expediency. The Petitioners also argued that the petition has nothing to do with the qualifications of councillors but with the rights of political parties. Therefore, that reference to the provisions dealing with the qualifications of candidates vying for the office of councillor is misplaced. We have duly considered the affidavit evidence and the respective sub1nissions by the parties. We shall deal with the first and second reliefs together because they are interrelated and have been argued together by the parties. We shall then separately deal with the third relief which is dependent on the outcome of the first two reliefs. We shall end with the fourth relief on costs. The first two reliefs seek declarations that persons contesting as councillors cannot be sponsored by political parties and that political parties cannot sponsor candidates for nomination or election as J19 P. 818 councillors because this would compromise or interfere with the performance of their duties in the local authorities which are supposed to be autonomous. The gist of the Petitioners' arguments in support is broadly in three parts. The first is that councillors are not expressly or impliedly captured in the definition of state office in article 266 under the ejusdem generis rule on literal interpretation. The second is that under the purposive approach, the intention of the Constitution was to bar political parties from sponsoring candidates for councillor based on the historical origins of article 60(l)(b). The third is that there is no provision in articles 153, 154 and 157 suggesting that a councillor could lose his seat if he resigns or is expelled from the party that sponsored him based on the expressio unius est exclusio alterius rule. Thus, the main issue for determination is whether article 60(1){b) as read with the definition of state office under article 266 bars political parties from sponsoring candidates for election as J20 P.819 councillors. We have considered this issue under the said three main argu1nents advanced by the Petitioners. The first issue 1s whether the literal interpretation of article 60( 1 )(b) as read with the definition of state office in article 266 bars political parties from sponsoring candidates for election as councillors. At the centre of contention is the definition of state office in article 266 which does not specifically mention councillors. State office is defined as: "Includes the Office of President, Vice President� Speaker, Deputy Speaker, Member of Parliament, Minister and Provincial Ministers" This definition lists some offices but which list is not exhaustive. The word "includes" is defined in as: Black's Law Dictionary "To contain as a part of something. The participle including typically indicates a partial list. ....... ,, Hence, what 1s listed in article 266 on the definition of state office is a partial list of what comprises state office. The Petitioners J21 P. 820 have relied on both the literal interpretation and purposive approach to support the conclusion that article 60(1)(b) bars political parties from sponsoring candidates for nomination as councillors because councillors are not included in the definition of state office. The case of Ntombizine Mudenda v Attorney General4 was cited, in reference to the definition of "public security" in section 2 of the Preservation of Public Security Act, where it was held that: ". .. the definition is not exhaustive regard being had to the fact that the expression "public securityn is immediately followed by the word "includes". However, in accordance with the rules of construction of statutes, anything not specifically referred to in the section but which is shown to fall within the spirit and intendment of the said section would have to be governed by the ejusdem generis rule.n Further, in The People v Fred M'membe, Masautso Phiri and Bright Mwape5, it was held that: "Clearly the State Security Act is intended to deal with the serious matters like espionage and sabotage, and applying the ejusdem generis rule of interpretation the other activities referred to must be activities akin to espionage and sabotage." It was surmised by the Petitioners that the ejusdem generis rule demands that the words to be imported must be similar to all and not just part of the items in the list. Therefore, under this rule, councillor J22 P. 821 cannot be read into the defin.ition of state office because it is not similar to the offices of President, Vice President, Speaker, Deputy Speaker, Minister and Provincial Minister. This is because councillor is not akin to the offices outlined above that all fall under state organs as defin.ed in article 266 to be the Executive, Legislature or Judiciary. The Petitioners have heavily relied on the ejusdem generis rule which requires that where there are general words followed by specific words, the construction of the general words must be confined to the class or category of things specified. For the rule to apply, it must be possible to construct a category or class out of the specific words to delin1it what is to be considered as things of the same kind. In determining whether something falls under the general words, the key is the assumed intention of the particular legislation. In the New Zealand case of at page 108 the rule was Cooney v Covell 11 discussed by Williams, J. when considering whether the words "advertisements or other publications" in the statute for suppressing J23 P. 822 offensive publications applied to a pamphlet which was sold as an appendix to a medical work. He stated that this rule should be applied or followed with care and in the particular cases where not doing so would lead to absurd results. The learned author of Craies 5th Edition at page 170 discusses a number of on Statute Law, English authorities on this rule and states as follows: The ejusdem generis rule is one to be a lied with caution and not ushed too far as in the case of many decisions, which treat it as automatically applicable, and not as being, what it is, a mere resum tion in the absence of other indications of the intention of the Legislature . .. ....... To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The s ccific words must a I not to different ob·ects of a widel dlfferin character but to somethin which can be called a class or kind of ob ects. Where this is lackin the rule cannot a I ........ and where the words are clearly wide in their meaning they ought not to be qualified on the ground of their association with other words . For instance, where a local Act required that "theatres and other places of public entertainment" should be licensed, the question arose whether a "fun­ fair" for which no fee was charged for admission was within the Act. It was held to be so, and that the ejusdem generis rule did not apply to confine the words "other places" to places of the same kind as theatces so the insertion of such words as "or things of whatever description" would exclude the rule. (emphasis ours) What can be gleaned from the above authorities 1s that the ejusdem genens rule is a presumption that can be applied m the absence of any other indication of the intention of restricting a particular category of words used. This shows that prima facie, words are to be taken in the larger sense or their common meaning unless J24 P. 823 there is something in the legislative prov1s1on that plainly indicates that they must be read in a restricted sense. In this instant case, the definjtion of state office begins with the word "includes" and lists various offices some of which are elective and others are not. The elective offices of President, Vice President and Men1b er of Parliament are through elections by the general public. The offices of Speaker and Deputy Speaker are elective in a restricted sense by members of the National Assembly while those of Minister and Provincial Minister are not elective but appointed by the President. The office of councillor on the other hand is elective by the general public and is shnilar in character to that of President, Vice President and Member of Parlian1ent. Councillors also carry out legislative functions like all the offices listed under state office and have an equivalent of Speaker and Deputy Speaker being the Mayor, Deputy Mayor, Council Secretary and Deputy Council Secretary. The Petitioners have further argued that the offices listed under state office are either part of the Executive or the Legislature but failed to acknowledge that councillors and their respective local authorities fall .J25 P. 824 under the Executive arm of government to wruch they also report. The Petitioners' further position that only national ancl. provincial administrations comprise the executive is clearly flawed because local government also falls under the executive to which it is accountable and also reports as provided in articles 151 and 156 of the Constitution. The offices listed under the definition of state office are clearly wide in their character and meaning and cannot be properly called a class or seen in a restricted sense. This shows that the eJusdem generis rule cannot apply in this case contrary to the arguments by the Petitioners and cannot be used to exclude councillors from the definition of state office. The qualifications for election as councillors outlined in article 153 have neither reference to independent candidates nor barring of political party sponsorship. The submission on the definition of public officer in article 266, which is categorical and specifically excludes a state officer and councillor, among others, does not assist the case for J26 P. 825 the Petitioners that it logically follows that the councillors are not included in the broad definition of state office. The general rule of interpretation is that words or provisions of the Constitution or statute must not be read in isolation but construed together as a whole. The beginning point is to consider the literal meaning of the words and articles that touch on article 60(l)(b). In the cited case of Minister of Information and Broadcasting Services v Fanwell Chembo 1, the Supreme Court considered the English Courts position on this aspect and held, inter alia, that statutes ought to be: ' 1 ...... Construed according to the words expressed in the Acts themselves. "construe" means reading the statute in whole and not piecemeal •.. in Pinner v Everett, Lord Reid at pages 258 to 259 said that "in determining the meaning of any word or phrase in a statute the first question to ask always is: what is the natural or ordinary meaning of that word or phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature that it is proper to look for some other possible meaning of the word or phrase. We have been warned again and again that it is wrong and dangerous to proceed by substituting some other words for the words of the statute." And as Tindah C.J said in the old English case of Sussex Peera e: "if words of a statute are in themselves precise and an unambiguous then no more can be necessary than to expound those words in their natural and ordinary sense". J27 P. 826 Lord Denning observed in the case of Seaford Court Estates Limited v Asher that "a Judge must not alter that of which it (a statute) is woven, but he can and should iron out the creases." Similarly, in Matilda Mutale v Emmanuel Munaile2, it was held that: "If the words of the statute are precise and unambiguous, then no more can be necessary than to expand on those words in their ordinary and natural sense. Whenever a strict interpretation of a statute gives rise to an absurdity and unjust situation, the judges can and should use their good sense to remedy it by reading words in it, if necessary, so as to do what Parliament would have done had they had the situation in mind." Further, in the case of General Nursing Council of Zambia v lng'utu Milambo Mbagweta12 it was held that: uThe primary rule of construction or interpretation of statutes is that enactments must be construed according to the plain and ordinary meaning of the words used, unless such construction would lead to some unreasonable result, or be inconsistent with, or contrary to the declared or implied intention of the framers of the law, in which case the grammatical sense of the words may be extended or modified." These Supreme Court and English Courts authorities are persuasive, sound and outline the generally accepted principles on interpretation of statutes including the Constitution 1n the commonwealth jurisdictions. There no reason to warrant a 1S departure from the same. The position is therefore that the provisions of the Constitution must be construed according to the plain and J28 P. 827 ordinary meaning of the words and they must be in consonance with other related provisions in the Constitution when read as a whole. It is only when the plain or literal meaning is not clear that the • l purposive approach should be used . The definition of state office as stated above is not exhaustive and, therefore, does not exclude the office of councillor. This plain interpretation cannot be said to lead to absurdity or unjust situation. Indeed, the position is that where the Constitution or statute uses general words, one has to consider whether the intention of the Legislature can be gathered from other parts of the same Constitution or statute. In this case, the literal interpretation is further reinforced by the definition of political party in article 266 as follows: ' 1Political party" means an association whose ob·ectives include the contestin of elections in order to form government or influence the policy of the nation or local overnment: (emphasis ours) The way to attain the objectives of contesting elections and to influence local government by political parties is to sponsor J29 P. 828 councillors for nomination and election. There is no specific provision in the Constitution stating that political parties have no right to influence local government or sponsor candidates. Further, article 45( l) provides that the electoral systems for election of president, members of parJiament and councillors shall ensure fair representation of various interest groups in society and that citizens are free to exercise tJ1cir political rights. These all support the view that under the literal interpretation, the Constitution does not bar political parties from sponsonng ca.11.didates for election as councillors. We now turn to consider the submissions under the second aspect being the purposive approach based on historical origin of article 60(1)(b). The Petitioners' submission is that article 267(1) of the Constitution as arnended suggests the use of the purposive approach when interpreting the provisions of the Constitution and that this entails looking at the historic origins of the provisions. The Supreme Court decision in is cited Wynter Kabimba v Attorney General6 J30 P. 829 in support as well as the South African case of Minister of Land affairs It and Another v Slamdien and Others7 . has been argued that the recommendation of the Technical Committee was that political parties should not have a right to sponsor candidates for election as councillors and the rationa.le was that a new structure of local government would be implemented based on section 17 of the Constitution of Zambia Act No. 1 of 2016. The Respondents on the other hand cited the case of Attorney on General and Another v Akashambatwa Mbikusita Lewanika� purposive interpretation and argued that in light of the provisions of article 47(3) and 153(4) of the Constitution on the election and qualifications of councillors, there 1s no prohibition on the sponsorship of candidates for the position of councillors by political parties. The Petitioners have relied a great deal on the Final Report of the Technical Committee and the Draft Constitution in support of their argument that the spirit of the Constitution is that political J31 P. 830 parties have no right to sponsor candidates for the position of councillor. It is therefore imperative that we should consider the historical perspective on article 60( l )(b) particularly with reference to the Final Report of the Technical Committee and not the previous constitutional reviews that the Technical Committee was mandated to consider in coining up with the Final Draft Constitution. The Final Report of the Technical Committee dated 30 December, 2013 on this th aspect of sponsorship of candidates for the position of councillor states that: "article 86(2)(b) of the First Draft Constitution provided that: (2) A political party has a right to - (b) sponsor candidates for election to any public office, other than to provincial assemblies or district councils;" The Report at pages 226 and 227 states that the resolutions of the District Consultative Fora and the Provincial Conventions were that district councils should be deleted from the said clause on the basis that they were public offices to which political parties should have a right to sponsor candidates. The resolution of the Sector Groups Convention was that the subject clause should provide for J32 P. 831 political parties to sponsor candidates to all elective offices. The National Convention did not n1akc any comments on this clause. However, the Technical Committee in proposing the final draft did not give effect to these sentiments but decided to maintain the clause as it was in the First Draft Constitution specifically barring political parties from sponsoring councillors. The rationale as stated on pages 570 to 571 of the Technical Committee's Final Report was to ('encourage civic leadership in which candidates for local government elections would not be sponsored by political parties.)) The key word being encourage. The Technical Committee clearly recognised the existing right of political parties to sponsor candidates for election as councillors and specifically recomrnended a deliberate policy shift to bar them. However, the Constitution of Zambia (Amendment) Bill of 2015 (N.A.B. 17, 2015) that was considered in Parlian1ent provided in article 60(1)(b) that political parties have the right to sponsor candidates for election to a state office other than a provincial assembly. J33 P. 832 The Report of the Committee on Legal Affairs, Governance, Human Rights, Gender Matters and Child Affairs outlined the stakeholders recommendations including one that political parties should sponsor candidates for election or nomination to all elective positions other than provincial assemblies. Parliam.ent which is comprised of elected representatives of the people considered and debated this provision in the Bill and passed the current provision in article 60(l)(b) which provides that political parties have a right to sponsor candidates for election to a state office in respect of which elections are required to be held. Based on this historical background of article 60( l)(b) and the changes made to it up to the time of the enactment of the Constitution, it is clearly discernable that the intention of Parliament was not to bar political parties from sponsoring candidates for election as councillors. When determining the intention, one has to consider what Parliament itself had in mind when it finally enacted the provision and not what the Technical Comn1.ittee in this case had J34 P. 833 1n mind or proposed. One must distinguish the fact that the Technical Committee had terms of reference to consider the various draft constitutions and make recommendations to be considered by Parliament. There 1s therefore no basis for the Petitioners' submissions on the spirit of the prov1s1on. On the contrary, the changes show that the clear intention and spirit at the time of enactment was for the position that political parties should continue to have a right to sponsor candidates for nomination or election as councillors. A litigant cannot therefore base its arguments on the proposal and rationale of the Technical Committee that was not taken on board. The intention of the Legislature can also be ascertained from the fact that district councils or local authorities were deliberately not included in article 60(1)(b) and the provincial assemblies were also removed from the article. The portion of the Hansard relied upon by the Petitioners also does not state the intention to bar political parties J35 P.834 from sponsonng candidates for local government elections or councillors. It should also be noted that 1n the past, political parties have always had the right to sponsor candidates for all elective offices including that of councillor. The general position is that where the legislation intends to depart fro1n what has been the norm, it needs to specifically exclude the sa1ne. In Re Cuno13 at page 17, Bowen L.J. said: u1n the construction of statutes you must not construe the words so as to take away rights which already existed before the statute was passed unless you have plain words which indicate that such was the intention of the Legislature" This is a sound principle that new legislation must not be construed to take away rights that already existed unless it has plain words to indicate that the intention of the Legislature is to take away those rights. This is more critical when it comes to fundainental rights. It is also customary to consider the state of the law and other related matters at the tin1e the Constitution was passed. In cases where the words are doubtful a historical investigation may be J36 P. 835 resorted to. In this case, there was need for an express provision to oust or bar political parties from sponsoring candidates for the position of councillor. From the historical evolution of article 60( l )(b), it is apparent that this was what was initially sought to be done by specifying that political parties would no longer have a right to sponsor candidates for election to provincial assen1blies and district councils. However, this clear proposal was not what was enacted by Parliament when it removed the express provisions to bar the political parties. The intention of Parliament not to bar political parties cannot be clearer than that. Moving from the historical origin, we now turn to the purposive approach. In the Wynter Kabimba6 case, Lord Denning was quoted as having stated in the case of Seaford Court Estates Ltd v Asher that: " •.. in all cases now in the interpretation of statutes we adopt such a construction as will "promote the general legislative purpose" underlying the provision. It is no longer necessary for judges to wring their hands and say "there is nothing we can do about it." Whenever strict interpretation of a statute gives rise to absurdity and an unjust situation, the Judges can and should use their good sense to remedy it by reading words in, if necessary - so as to do what Parliament would have done, had they had the situation in mind." J37 P.836 The South African case of Minister of land Affairs and Another v Slamdien and Others7 states on similar lines that: ". .• the Constitutional Court has made it clear that the approach to be adopted in interpreting the Constitutions is a purposive one. ......T he purposive approach as elucidated in the decisions of the Constitutional Court and this Court requires that one must: i. In general terms, ascertain the meaning of the provisions to be interpreted by an analysis of its purpose and, in doing so ii. Have regard to the context of the provision in the sense of its historical origins; iii. Have regard to its context in the sense of the statute as a whole, the subject matter and broad objects of the statute and the value which underlie it; These authorities show that the purposive approach entails adopting a construction or interpretation that promotes the general legislative purpose. This can sometimes be done by reading into the provision what Parliament had intended. The South African case of Minister of Land Affairs7 brings out the aspect of ascertaining the meaning and purpose of the provision having regard to the context and historical origins. This is in line with article 267(1) of the Zambian Constitution which provides in part that the Constitution J38 P. 837 must be interpreted in accordance with the Bill of Rights and u1 a manner that promotes its purposes, values and principles. Therefore, what has to be determined is whether the intention of article 60(1)(b) as read with the definition of state office in article 266 was to bar political parties from sponsoring candidates for election as councillors. All the relevant provisions of the Constitution must be construed together and not in isolation as the Petitioners have sought to do. This also entails the consideration of article 21 of the Constitution on the Bill of Rights which guarantees the right of association and there is no derogation under the same or any other provision as to the right of a person to opt to be sponsored by a political party. Article 21 ( 1) of the Bill of Rights provides as follows: "(1 )Except with his own consent a person shall not be hindered in the enjoyment of his freedom of assembly and association, that is to say his right to assemble freely and associate with other persons and in particular to form or belong to any political party trade union or other association for the protection of his interest." J39 P. 838 The article goes further to provide in sub article 2 the derogations applicable unless it is shown that a particular position is not reasonably justifiable in a democratic society. Additionally, as already discussed above, the reliance on the definition of state office cannot also assist the Petitioners based on our finding above that the definition is not exhaustive and does not exclude councillors. The argument that the spirit of the Constitution was to de-politicise councils cannot on its own automatically cancel the right of political parties to sponsor councillors. The definition of political parties in article 266 further shows that the Constitution acknowledges their rights to contest local government elections and influence policy at local government level. The net effect of the purposive approach does not support the Petitioners' argument but leads to the same conclusion under the literal interpretation that the intention of article 60(1)(b) is not to bar political parties from sponsoring candidates for election as councillors. J40 P.839 Under the third aspect, the Petitioners1 argument is that there is nothing in articles 153 and 157(2) of the Constitution which suggests that political parties have the right to sponsor councillors for election because there is no constitutional provision dealing with councillors ceasing to be 1nembcrs of the political party that sponsored them. That this supports the fact that sponsorship by political parties was not envisaged and the expressio unius est exclusio alterius rule applies. The Respondents' argument on the other hand is that article 21 of the Bill of Rights does not expressly exclude a person who seeks to be elected as councillor from being sponsored by a political party and one has a right to belong to a political party of his choice. It is submitted that article 21 is not inconsistent with articles 60(1)(b) and 266 of the Constitution and that article 164-(e) provides that the election of councillors shall be prescribed and therefore the issue of councillors crossing the floor could be prescribed and is actually prescribed in the Local Government Elections Regulations. J41 P. 840 We have considered the maxim expressw unius est exlusio alterius which is to the effect that expressing one thing implies the exclusion of the other or alternative. Black's Law Dictionary at pages 620 and 621 cites Reed Dickerson, The Interpretation and Application of Statutes that: "Several Latin Maxims masquerade as rules of interpretation while doing nothing more than describing results reached by other means. The best example is probably expressio unius est exlusio a/terius, which is a rather elaborate, mysterious sounding, and anachronistic way of describing the negative implication. Far from being a rule, it is not even lexicographically accurate, because it is simply not true, generally, that the mere express conferral of a right or privilege in one kind of situation implies the denial of the equivalent right or privilege in other kinds. Sometimes it does and sometimes it does not, and whether it does or does not depends on the particular circumstances of context. Without contextual support, therefore, there is not even a mild presumption here. Accordingly, the maxim is at best a description, after the fact, of what the court has discovered from context." The issue is whether the fact that article 157 does not provide for a councillor to vacate office when he resigns or is expelled from the party that sponsored him means that it is barring political parties from sponsoring candidates for election as councillors. The other position 1s whether by not expressly including it under the qualifications for councillors in articles 153 and 154 means that one J42 P. 841 cannot be sponsored by a political party. Our firm view is that as the rule has been described above, one cannot take a simplistic view on this aspect. The court still has to first discern whether what is sought to be excluded was actually the intention of the Parliament. We find that the position sought to be advanced by the Petitioners on this aspect is not tenable in view of the other provisions supporting the view that political parties arc not barred from sponsoring councillors. It is not advisable to try and explain the constitutional provision by words such as bar that are not found in it on this particular aspect. The mere fact that article 157(2) does not list the crossing of the floor as a ground for vacation of office does not mean that this cannot be provided for in the legislation to be prescribed as provided in article 164(e). This shows that the maxim expressio unius est exlusio alterius cannot be used or allowed to go against the clear intention of Parliament not to bar political parties from sponsoring councillors. J43 P. 842 Based on all that has been discussed above on both the literal interpretation and purposive approacl1., we are of the firm view that article 60(l)(b) , as it stands and as read with the definition of state office in article 266, does not bar political parties from sponsoring candidates for nomination or election to the position of councillor. The first and second reliefs sought both fail. The Petitioners in their third relief have sought an order that Regulations 22(1), 22(2), 23(1) and (2) and 24 of Local Government Elections Regulations are inconsistent with articles 60 and 152(2) of the Constitution and therefore null and void. The argument by the Petitioners is that since the Constitution does not have provisions to suggest that a councillor would vacate office if he is expelled or resigns from the political party that sponsored him, the Local Government Elections Regulations that provide for vacation of seats in such instances are inconsistent with the Constitution and should be declared null and void. J44 P. 843 It is apparent that the Petitioners did not address themselves to the current status of the Local Government Elections Regulations. The Local Government �lections (Repeal) Act No. 20 of 2016 repealed the Local Government Elections Act Cap 282 under which the subject regulations fell and there is no saving provision regarding the same. The regulations thus stand repealed and therefore the relief sought is misconceived. This notwithstanding, article 164(e) provides that the election of councillors shall be prescribed and this entails the enactment of either an Act of Parliament or the Regulations under the said Act. Therefore, legislation or regulations can and should be made to provide for what should happen when a councillor is expelled or resigns from the political party that sponsored him and what should happen when one's political party that sponsored him is dissolved. This would in our view provide a cure of what would happen if any of the above occurred. J45 P. 84� Therefore, the third relief sought in this petition also fails. Tht petition fails and is dismissed for lacking merit. As regards the Petitioners' last prayer that each party should bear its own costs, the Respondents did not ask for costs. Considering that this is a public interest litigation brought pursuant to article 2 of the Constitution and taking into account that the issues raised are not frivolous, we order that each party should bear its own costs. H. CHIBOMBA PRESIDENT CONSTITUTIONAL COURT M.S� MULENGA CONSTITUTIONAL COURT JUDGE E.��E CONSTITUTIONAL COURT JUDGE J46