President Lungu should continue in office even after petition is filed-YALI

29
5,982 views
Meeting for Political Parties organised by the Young African Leaders Initiative (YALI)
Meeting for Political Parties organised by the Young African Leaders Initiative (YALI)

The Young African Leadership Initiative has argued that President Edgar Lungu should continue to perform the executive functions as republican president until the president-elect is sworn into office as per Constitution of Zambia, as amended even after the opposition files its petition against his re-election.

YALI Governance Advisor Isaac Mwanza said the YALI legal team has carefully studied Article 101 to Article 104 of the Constitution of Zambia, as amended, and their conclusion is that any petition brought at this stage when there has not been any re-run will be brought under Article 101 clause 4 of the Constitution.

Mr. Mwanza explained that under this clause, there is no provision for the incumbent who has been declared President-elect under Article 101 clause 2 to step aside and allow the Speaker of the National Assembly to perform executive functions.

The YALI position is contrary to the position by various stakeholders that the Speaker of the National Assembly will have to take over and perform the executive functions when the election petition is filed against the incumbent, having been duly re-elected and declared President-elect under Article 101 clause 2 of the Constitution of Zambia.

And Mr. Mwanza has urged stakeholders including aggrieved political parties to engage ECZ if they have evidence of wrong tabulation of results in order to correct the situation within the window period of 7 days as provided by Section 76 of the Electoral Process Act number 35 of 2016.

Loading...

29 COMMENTS

    • Just follow the law. It is not about what you want. There is no argument or grey area about what the law says. If you say that, then why don’t you also say ECL should have had inauguration the same day he was declared winner? Why cant you say ECL should appoint his cabinet today and swear them in tonight? Some youths are really dull.

      0

      0
    • YALI or whatever you call yourselves stop bringing confusions and misleading people you educated illiterates!!!!!!

      104. (1) The President-elect shall be sworn into office and
      assume office in accordance with Article 105.
      (2) Subject to clauses (3) and (4), where the Returning Officer
      declares a presidential candidate as President-elect, the incumbent
      shall continue to perform the executive functions until the President elect
      assumes office, except the power to—
      (a) make an appointment; or
      (b) dissolve the National Assembly.
      (3) Where an election petition is filed against the incumbent,
      under Article 103 (1), or an election is nullified, under Article 103(3)
      (b), the Speaker shall perform the executive functions, except the
      power to—
      (a) make an appointment; or
      (b)…

      0

      0
    • The same people who misled ECL over the issue of ministers continued stay in office not long ago have re-grouped again

      0

      0
    • The new constitution is crap. The office of president is a very important office and should not change hands like a second hand car. The Speaker is not an elected officer and the incumbent president is still alive. Why should the Speaker to assume office? Complete crap.

      0

      0
    • The problem with YALl is that they tend to discard the natural intention of the law. They did that 2 months ago. The intention of the law here is to protect the legal process from interference by the incumbent who has interest in the case outcome.

      0

      0
    • YALI is right and if UPND does not comply with Section 76 of the Electoral ACT they risk to have their petition thrown out by the ConCourt

      0

      0
  1. I had posted this on Zambiareports and Lusaka Times and repeat hereunder.
    There is no restraint and in fact Chief Justice and the Cabinet Secretary are under obligation to swear in the President Elect.
    Read hereunder-
    1. Section 105 is the section for swearing in of the
    President Elect.
    2. Sub-section 105(2) states that The President
    elect shall be sworn into office on Tuesday
    following-
    (a) the seventh day after the date of declaration
    of the presidential election results, if no
    petition has been filed in accordance with
    Article 103; or
    (b) the seventh day after the date on which the
    Constitutional Court declares the elections
    to be valid.
    3. Please note -Article 101 of the Constitution deals
    with Presidential elections
    Article 101 has its own appeal provisions…

    0

    0
    • But how come all the so called leaders who are opposing the petition are either from eastern Province (Mwanza – YALI) or northern/Luapula (Chiti – PRIEST, Kalumba – WITCHDOCTOR). Looks like our leaders are just as divided along tribal lines as the rest of the country. Why would someone advocate for abrogation of the constitution just to protect their tribesmen? This country has really gone to the dogs

      0

      0
  2. 3. Please note -Article 101 of the Constitution deals
    with Presidential elections
    Article 101 has its own appeal provisions to
    Constitution Court, complete in all respects.
    4. Article 102 deals with Disqualifications for RUN
    OFF.
    5 Article 103 follows with similar provisions (ditto
    of Article 101) for a petition to Constitution Court
    in case a petition is made to Constitutional Court
    for nullification of President Elect.
    6. This Article is immediately after Article 102
    which covers Disqualification for RUN OFF
    7. Article 105 (2) (a) mandates that a President
    elect shall be sworn into office by the Chief
    Justice, if no petition is filed under Article 103.
    8. What it means is that President Lungu who has been declared President Elect under First Ballot, qualifies to be sworn…

    0

    0
    • My Brother lets Assume HH had won the election and we are now in the 7 days then who is President? two presidents the Elect and Incumbent to vacate office? and what happens in such a case when a petition happens??? Lets not look at issues from a One dimensional perspective !!

      0

      0
  3. 8. What it means is that President Lungu who has been declared President Elect under First Ballot, qualifies to be sworn in under Article 105(2) (a) as any petition to the Constitution Court by UPND, HH or any other person falls under Article 101 and not under Article 103. Any petition filed under Article 103 will automatically be defective and thrown out. The Chief Justice is under obligation as per the Constitution to swear into office President Lungu
    9. Article 103 (3) talking about Speaker acting as President during the period of a petition to Constitutional Court does not apply to President elect who is so declared by the Returning Officer under Article 101 (first ballot)
    10. This Article is further strengthened by Article 106(2) which states that – A President shall hold office…

    0

    0
  4. 10. This Article is further strengthened by Article 106(2) which states that – A President shall hold office from the date the President elect is sworn into office and ending on the date the next President Elect is sworn into office
    11. Constitutional logic is that a President Elect who is an incumbent and is declared a winner on First Ballot has the mandate of the voters under previous elections to continue as President till a new President elect is declared by Returning Officer or in case of an appeal till second ballot results are declared and if an petition is made then Speaker shall take over as his mandate from second ballot is challenged.

    0

    0
  5. Lungu got it wrong in interpreting the Constitution over the illegal Ministers issue. The Attorney General has already advised that should a valid petetion be lodged then the President Elect has to stand down to allow the Speaker of Parliament to step in as Acting President. These are Constitutional matters which should be left to Constitutional lawyers and the Attorney General to deal with. Pedestrian lawyers in Yali should just play Duduna Reverse and enjoy themselves and leave the experts to interpret the Constitution.

    0

    0
  6. I think we don’t have pipo who are ready to interpret the Constitution of Zambia. all is there is to look where food and money is instead of focusing on the Constitution. the Constitution is very that I never expected YALI, an organization meant to study and interpret it. I the so called lawyers in Zambia.

    0

    0
  7. This is the kind of sponsored confusion that we do not need any more in Zambia. Similar tactics of confusing the public on the interpretation of the law on minister was used and we all know what happened in the end. Alas the crooks still got their way despite the belated correct action determined by the constitution. Now Isaac and his sponsors are trying to use the same tactic to cover the alleged rigging in the last elections and influence the ultimate outcome by keeping Edgar Lungu in office when the law is clear that the Speaker or the Chief justice should take over. People like this YALI’s Isaac Mwanza are the reason we remain under developed because they do not look at the bigger national picture but their own pocket’s picture. The law is there to create a system and…

    0

    0
  8. I fully conquer with the explanation rendered by YALI. Am sure time will vindicate them. One thing I like about these guys is they are not afraid to change positions when they are wrong. They had a position like many of us and have changed because it is a wrong position. Article 104 talks about the petition brought under article 103 and not article 101 clause 4. Thumbs up YALI

    0

    0
    • I Maintain ….. use the same Laws in the case that HH had won the election. How does it work ? Please help us the “dull” citizens

      0

      0
  9. YOU ARE THE SAME USELESS CHARACTERS WHO MISLEAD THE PRESIDENT NOT TO OBEY THE LAW OF THE LAND THAT HE SIGNED HIMSELF. READ THESE CLAUSES OF THE CONSTITUTION.
    103. (1) a Person May, Within Seven Days of the Declaration
    Of A President-Elect, Petition the Constitutional Court to Nullify The
    Election of the President-Elect on the Ground That—
    (A) The Person Was Not Validly Elected; Or
    (B) A Provision of This Constitution or Other Law Relating To
    Presidential Elections Were Not Complied With.
    (2) The Constitutional Court Shall Hear an Election Petition
    Relating To the President-Elect within Fourteen Days of the Filing Of
    The Petition.
    The President-Elect Shall Be Sworn Into Office on the Tuesday (23rd August 2016)
    Following—
    TRANSITION PERIOD BEFORE ASSUMING OFFICE ASSUMPTION OF…

    0

    0
  10. So now these so-called three months in America *****s want think they know something just be crossing the ocean. Many of them are desperately now applying to US universities o get out of Zambia as they see how a well governed country can be. No wonder Zambians are seen as Africa’s most passive people. Their destiny is to be ruled by alcoholics and tyrants, strings being pulled by Mugabe and Banda. Most of these YALI were chosen by PF.

    0

    0
  11. If the bush Yali lawyers are correct when does the Speaker of Parliament ever act as President? These PF cadres are amazing. They say Lungu won the election genuinely and if so why not comply with the Constitution and step down after all in 14 days he will bounce back and be officially sworn in as President. What is Lungu and his PF cadres afraid of? If they have no respect for the Rule of Law they can just ignore the Petetion and the Constitution and go ahead with the swearing as they please and any time. No wonder Zambia is now a lawless state. The fish rots from the head downwards. Its so trie!

    0

    0
    • Section 104 (b) empowers the Speaker to perform executive functions only except making appointments & dissolving the National Assembly where an election of president-elect or incumbent president is nullified. The Speaker can only act after conclusion of the hearing and nullification of president-elect or incumbent president, first. Its a question of what comes first between a chicken and an egg.

      0

      0
  12. Section 229 (2) (d) empowers ECZ to settle minor electoral disputes, as prescribed;
    Section 103 (1) (a) and (b) empowers the Constitutional Court to hear election petitions, validate or nullify the election of the President-elect or incumbent President;
    Section 104 (b) empowers the Speaker to perform executive functions only except making appointments & dissolving the National Assembly where an election of president-elect or incumbent president is nullified. The Speaker can only act after conclusion of the hearing and nullification of president-elect or incumbent president, first. Its a question of what comes first between a chicken and an egg.

    0

    0
  13. The Attorney General gave his professional advice on this issue. Is YALI saying that their legal adviser is better than the government advisor? Last time the AG’s advice on ministers was ignored with disastrous consequences! Please leave such issues to people who are qualified to handle them.

    0

    0
  14. YALI we salute you. These are they dynamic youths Zambia needs. Not these blind dogmatic sychophant followers motivated by hate and devoid of any objectivity who regard their failed leaders as infallible. YALI is not saying the petition cannot go on. Do whatever you care I’m the Concourt. However, the swearing in will go ahead. Only in the highly unlikely event that the election is overturned will the speaker or chief justice come into picture.

    0

    0
  15. There are always two sides of a coin thats where people are getting lost.
    The constitution is so clear if one reads it from article to article.
    Its like reading a novel, you can’t understand chapter 7 if you dont read chapter 6.
    There are 2 situations here;
    1. Where there is no pertition, ECL remains president for 7 days untill he is finally sworn in.
    The 7 days is to allow losing candidates to concede defeat or gather evidence to pertition the outcome.
    2. If THERE IS a pertition, he steps aside to allow fare and credible hearing.
    Yali has read article 101 and then connect it with article 105 to confuse pipo like they did 2 months ago.
    To put it in plain, ECL will continue to hold his position as president for 7 days before being sworn in. But article 103 puts a condition to…

    0

    0

Comments are closed.