By Elias Munshya wa Munshya:
Article 34 of the Constitution of the Republic of Zambia 1991 (as amended in 1996) contains the notorious “presidential parentage” clause, which among other things states that for one to be president of Zambia both parents should be “citizens of Zambia by birth or descent.” Following questions that have been raised concerning the eligibility of Zambia’s vice-president Hon. Guy Scott on whether he qualifies to hold the office of vice-president or whether he qualifies to stand for the office of president, I wish to conduct an exegetical study of current Zambian constitutional law. This study will show that if Article 34 is read together with the Supreme Court’s ruling in Lewanika and others v Frederick Chiluba, Guy Scott and many others would qualify to stand for the office of President of the Republic.
In the context of a republic such as ours, a constitution is the supreme law of the land. Constitutional supremacy means that the constitution is the tenet by which all institutions of government are governed. It also means that any law made by the legislature that is inconsistent with the Constitution can be struck down. The role of striking down a law that is inconsistent with the constitution is a preserve of the courts. In our context, it is the High Court and the Supreme Court that have the powers to declare any given law null and void if it violates the constitution. However, the Zambian courts do not have the powers to strike down any article in the constitution. The only power they have with regard to the constitution is the power to interpret it. The extent to which the power to interpret actually goes into questioning or even striking down a constitutional article is a philosophical one. All lawyers and jurists within the common law systems at least would agree that the consequence of judicial interpretation sometimes does go into judicial legislation. In other words, even if judges claim to only be interpreters of the law, the consequence of their interpretation might lead to subtly altering the law.
The consequence of judicial interpretation means that a constitution like we have in Zambia is derived from several sources. First, our constitution is derived from a written physical document, which was passed by our parliament in 1991 and amended in 1996. What that document contains is our constitution. However, that document alone does not constitute Zambian constitutional law. A correct view of the constitutional law of our republic therefore should be found in that document as well as rulings of the High Court and the Supreme Court that have interpreted some sections of that constitution. It is important to note here that Zambians should pay particular attention to judicial rulings because they as well as the constitutional document comprise the constitution of the Republic of Zambia. If someone therefore asks you what the constitution says about “presidential parentage” you would be in order to quote Article 34 (3) (c). However, if you have to correctly interpret this article then you must refer to the rulings of the courts on this matter.
What this means is that Article 34 (3) (c) the famous presidential parentage clause should be interpreted within the ambit of judicial rulings. But why are judicial rulings important? First, judicial rulings are important because they become law. In law, through the principle of judicial precedence, when a higher court in a hierarchy rules on a matter all lower courts are supposed to follow that precedence. Consequently, what the higher courts rules on a matter becomes law with regard to that matter under consideration. Second, court cases are important because they show the development of our laws and the constitution. Third, judicial decisions are important because constitutionally, it is the judges who are final arbiters in legal, equitable and constitutional matters. Every lawyer or jurists worth his salt, therefore pays particular attention to court rulings.
This brings me to Article 34 (3) (c). What it says seems simple: a Zambian presidential candidate must have parents who are Zambians by birth or descent. But the next question is, what does this mean? Well this article can mean different things to different people. This article contains some concepts or ideas that we take for granted but indeed would require a tome to interpret. Concepts such as “parent”, “birth”, “descent”, or even “Zambia” could mean different things to different people. But if we are to remain faithful to the rule of law, then we must defer to the courts a legal interpretation of these concepts. If we are to remain faithful to the rule of law in Zambia then we must take what the courts have ruled on this matter as the correct interpretation of the law.
The meaning of Article 34 (3) (c) was adequately provided in the Supreme Court case of Lewanika and others v Frederick Chiluba. In consistent with the constitutional doctrine of stare decisis it is important that lawyers and jurists give adequate respect for this ruling for it helps us interpret the constitution. In fact, Chiluba is a constitutional milestone.
The Chiluba case is an important constitutional case. Since the Supreme Court has not reversed it, it remains law and is consequently part of Zambia’s constitutional law. But what was this case all about? In 1996, the Zambian parliament amended the Zambian constitution and among other things included the “presidential parentage” clause in the constitution. At that time, it was widely believed that parliament passed that law to disqualify President Kenneth Kaunda from standing since Kaunda’s parents are believed to have come from present-day Malawi. Indeed in the 1996 elections, Kaunda boycotted the elections and urged his UNIP party to abscond. Chiluba and his MMD contested the 1996 elections and other parties that include Dean Mung’omba’s party and Agenda for Zambia a party led by Inonge-Mbikusita Lewanika and his brother Akashambatwa. These elections were conducted on the newly amended constitution.
After the elections however, Chiluba won beating his closes rival Dean Mung’omba by a wide margin. Lewanika and others petitioned the Supreme Court asking the court to overturn Chiluba’s election as president. They contended among other things that Frederick Chiluba could not be president of Zambia because he did not satisfy Article 34 (3) (c) of the Constitution of Zambia. Lewanika and others contended that they had evidence that Chiluba was not born in Zambia and that his parent (especially his father) was not Zambian at all.
The ruling of the Supreme Court on this matter is very significant because in it, the court interpreted Article 34. Additionally, in this ruling the court even went to the extent of criticising parliament’s law making rationale and logic. For those who know constitutional law, this criticism is indeed remarkable and quite unusual. But in unpalatable language, a full bench of Supreme Court held that through Article 34 parliament had created problems for Zambians in the future. And considering what is happening now barely a decade after the ruling, the Supreme Court judges indeed were prophetic.
First, the court held that a Zambian like Chiluba would still satisfy Article 34 even if he were born in a neighbouring country like Congo. If it were shown that Chiluba was a British protected person by the time of his birth and that he “ordinarily” resided in Zambia at independence, he would satisfy the requirement of being a Zambian by birth or descent. Using this rule—it means that all those people like Kenneth Kaunda and Guy Scott who were ordinarily in Zambia at independence and were British protected persons satisfy the requirement of being “Zambian by birth or descent.”
Second, the court had identified serious problems with the requirement that a presidential candidate’s parents should be Zambians by “birth or descent”. The Supremes remarked that this law would present serious problems for the future. In essence they ruled that, this article couldn’t apply to Zambians whose parents were born before 1964—before there was a Republic of Zambia. Essentially then, people like Chiluba (born 1944), Michael Sata (born 1944), Rupiah Banda (born 1943), Guy Scott (born c.1940) and or Kenneth Kaunda (born 1924) cannot produce Zambian parents. This is because by the time that the parents of these people were born in the 1800s, there was no legal or constitutional entity known as Zambia. As such, Banda, Kaunda, Guy Scott, or Sata cannot produce parents who are Zambian by “birth or descent.” Sata’s father or Rupiah Banda’s father were not born in Zambia, and they were not descended from Zambia—Zambia itself being an entity born in 1964 and whose citizenship requirements were set out in the 1963 constitution.
Guy Scott himself has equally concluded the wrong way by claiming that he cannot be President of Zambia. Nothing is further from the legal truth; in fact according to law Scott does satisfy the requirements.
Third, the Supreme Court then addressed a very interesting phenomenon that indeed would apply to Guy Scott. How does Article 34 apply to a white Zambian? In clear language the Supreme Court ruled that satisfying the articles of the constitution have nothing to do with the colour of one’s skin or tribe. In fact, the ruling even went to give an example of an ethnic Chinese. Essentially, the court ruled that if a Chinese was ordinarily resident in Zambia in 1964 and acquired Zambian citizenship at independence Article 34 should not exclude him from standing for the office of president. Additionally, in a rather comic way, the Chinese example was again used—the Supreme Court painted a hypothetical situation and said that an ethnic Chinese child born in Zambia post 1964 but who gets adopted by black Zambian parents would still qualify since he too can claim that his parents were Zambian by birth or descent. This made the Supremes to ask a rhetorical question, so which “parentage” is parliament talking about here? Is it biological or is it adoptive parentage. From the perspective of the judges clearly Article 34 was rather unimpressive.
Keeping with the arguments above, it is my conclusion that notwithstanding Article 34, Hon Guy Lindsay Scott can legally satisfy the requirement of Article 34 and can in fact serve as President of the Republic of Zambia. Unless overruled, the case of Lewanika and others v Frederick Chiluba is law and therefore applies to Guy Lindsay Scott.
The Attorney General of the Republic of Zambia is therefore wrong at law by advising that Guy does not meet the requirements of Article 34. Clearly, if Article 34 were read with the ruling of the Supreme Court, the Attorney General would come to the same conclusion as I have done. Guy Scott himself has equally concluded the wrong way by claiming that he cannot be President of Zambia. Nothing is further from the legal truth; in fact according to law Scott does satisfy the requirements.