Did ConCourt Change the Grade 12 Rule? The Dolika Banda Case Explained
_Wisdom Chanda_
LUSAKA, 18 June 2026 – After today’s Constitutional Court ruling cleared Socialist Party running mate Dolika Banda, WhatsApp groups lit up: _“So can we now use degrees without Grade 12?”
My Short Answer: No. The Grade 12 law has not changed. Here’s what really happened, with key legal terms explained.
1. The Law That Hasn’t Changed – Nkunika v Nyirenda 2021
In 2021, ConCourt set the ratio decidendi [the main legal reason for the judgment] for “Grade 12 or equivalent” in a 3:2 majority:
1. Grade 12 = School Certificate – You need a full G12 certificate with 5 O-levels including English. A GCE statement of results is not enough.
2. “Equivalent” means equal – It cannot be inferior or superior to G12. So university degrees, diplomas, and A-levels don’t count.
3. GCE rule: Minimum 6 subjects passed, including English, with at least 1 credit.
This precedent [past decision courts must follow] is what ECZ still uses. It’s also res judicata [a matter already decided by the court and cannot be re-litigated] after the Charles Zulu case in May 2021.
2. The Banda Petition – May to June 2026
Step 1: Nomination
Dolika Banda filed as running mate to Dr Fred M’membe. ECZ accepted her papers after vetting.
Step 2: Late Information
After nomination closed, ECZ received a letter from Examinations Council of Zambia. It said Banda’s 1978 Cambridge O-Level had no English and was not equivalent to G12. But ECZ told the Court it was functus officio [had already finished its job and had no legal power to reverse the decision].
Step 3: The Challenge
Isaac Mwanza and NGOs filed a petition asking ConCourt to nullify the nomination. Their only evidence was ECZ’s letter.
Step 4: ConCourt’s Decision – 18 June 2026
The full bench dismissed the petition. Judge Mapani Kawimbe gave 3 key reasons:
1. Burden of proof – In an election petition, the person complaining must bring evidence. Mwanza failed to prove Banda lacked G12.
2. Insufficient evidence – Relying only on ECZ’s letter was not enough. Petitioners needed their own proof.
3. Procedural bar – Court won’t force ECZ to reverse a nomination when ECZ says it has no power left.
3. So Did the Law Change?
No. The Court applied a different legal test [the rule the court uses to decide a case] and dismissed the petition for lack of proof.
Critical point: ConCourt did NOT rule that Banda’s certificate is equivalent. It ruled that Mwanza failed to prove it isn’t.
4. What This Means for 2026 Elections
1. Law is the same: No English = Not equivalent to G12. Nkunika still binds ECZ.
2. Evidence matters: If ECZ clears you, a challenger must independently prove you’re unqualified. ECZ paperwork alone may not be enough.
3. To change the rule: Parliament must amend Articles 70, 100, and 153 of the Constitution.
Politicians can debate whether the G12 bar is too low or too rigid. But legally, degrees still don’t replace Grade 12.
Final Analysis: Nkunika tells ECZ what to accept. Banda tells citizens how hard it is to challenge ECZ once nomination closes.
Excellent analysis.
