IT IS wishful thinking for any individual to suggest that the President must step down because there is an election petition in court, as there is nowhere in the Zambian Constitution where it says a Head of State must step down whenever there is a petition, says Professor Patrick Mvunga, SC.
The renowned Constitutional Lawyer said there was no such provision in the Constitution that demands for the Republican President to step down from his office because there was a petition against his elections after winning elections in the first round.
Responding to Hakainde Hichilema who claimed President Lungu had staged a coup d’etat, Prof Mvunga said it was not the first time that Zambian courts were dealing with a presidential petition, and there has never been at any point a President or even a Member of Parliament stepped down because of such court action.
Professor Mvunga explained that unless there was nullification at the full conclusion of such court proceedings, can anybody step down, and not at the filing of a petition challenging their election.
“I am not aware of when a President has stepped down or even an MP because of a petition against their election into office.
“If it is wishful thinking of an individual, that is fine but to think that it is actually in the law, I am not aware of any authority in the Constitution that says that,” he said.
He explained that unless there was nullification, the person declared as the winner of an election remains in office pending the court’s conclusion of such matters. Professor Mvunga was commenting on contentions by the opposition UNPD losing presidential candidate Hakainde Hichilema that the President-elect, Mr Lungu, was illegally in office after the filing in of a petition challenging his election.
Mr Hichilema accused the Head of State of taking advantage of the power vested in him as commander-in-chief of the armed forces such that he bulldozed himself to holding onto power when he should have step down and hand-over the presidency to the Speaker of the National Assembly, Dr Patrick Matibini.
THE PROBLEM IS THAT THERE ARE SO MANY FACEBOOK LAWYERS AROUND THIS PLACE.EVERYONE KNOWS EVERYTHING EVERYWHERE EVEN WHEN THEY KNOW NOTHING NOWHERE ANYWHERE.PLEASE FIND SOMETHING ELSE TO DO INSTEAD OF HEATING THE STEAM
Now I understand why Mr.Sata didn’t want this new constitution, it is a source of confusion, no one understands it, not even Lungu, not even Mvunga.
Lungu enacted the new constitution to look good but now he is entangled in it.
Sata was a leader from God, Not Lungu!!
I country gone to the DOGs…
One would think if you got older you would become wiser…. even a professor can not read. I rest my case
Is the Professor actually resident in this country. Poor old guard he doesn’t sound like he is aware we have an amended constitution. Is not aware that the President-elect has not been sworn-in. Would he care to find out why? He is a renowned lawyer of the old constitution..kikiki
If these are the lawyers representing Lungu he must expect a shocker…
Mvunga is so old that he doesn’t even know that we have a new constitution. I dont think he has even seen the new constitution.
Gogo Mvunga, previous pettions were based on the old constitution.
Tell them prof!! These jokers from UPND bativuta maningi
@KIKI; THAT’S NOT THE ISSUE. PROBLEM IS THAT ZAMBIAN LEADERS ARE SO POWER HUNGRY? THAT EVEN WHERE HE KNOWS SOMETHING IS WRONG, LUNGU HIMSELF WILL NOT ACCEPT. FACE IT CAMERON STEPPED DOWN OVER A REFERENDUM, LUNGU PUT FAILURE ON REFERENDUM TO OPPOSITION.
PEOPLE SHOULD BE WILLING TO SERVE NOT MAKE THEMSELVES RICH. FACTS ARE LUNGU IS NOT TE ONE PUSHING TO STAY IN POWER BUT GREEDY PEOPLE LIKE MBVUNGA AND THE WHOLE GUNG. THESE OLD MEN HAVE FINISHED ZAMBIA.
YOUNG ZAMBIANS WAKE UP DONT GET MISLEAD BY THESE THIEVES.
wHEN WAS THE LAST TIME THE OLD MAN READ A BOOK? hAS he read the new constitution? Maybe he had a vision from Mars.
UPND have an animal constitution
He is not aware ?
In simple English – he is saying there might be but its not something he has come across.
Mvunga is past his sell by date.
I hear he takes pills
Thanks
BB2014
People, read the constitution and what Prof Mvunga has said very carefully: There is a petition under S101 (First round) and another one under S103 (Second round).
Section 101 (4), (5), (6) and (7) refer to a petition at the first round and nowhere does it say the the sitting President must step down.
Section 103 and 104 are independent of S101 and both refer to a petition at a re-run or where the election has been nullified by the Concourt. This is a petition at the second round. This is when the President must step aside.
The professor is spot on and I repeat: read Section 101 and what the professor has said very carefully. I rest my case.
@Pompi
The professor says and i quote “Prof Mvunga said it was not the first time that Zambian courts were dealing with a presidential petition, and there has never been at any point a President or even a Member of Parliament stepped down because of such court action.””
Which constitution his he referring to?
1.5 you claim to know but you dont know. Dont you know that Edgar is the incumbent at the same time President elect. What does it mean, Edgar Lungu while he is not sworn in but he was sworn in last year when he won against Kalusa. So it means that Edgar will need to handover power to whoever will be declared as the President elect be it himself or someone else. In this case Edgar remains the President until he hands it over to the next president. Let me simplify it for dementia brains in UPND-up and down. Suppose Edgar did not take part in the just ended elections and the winner for example is Edith Nawakwi. As usual Kalusa was going to petition that Nawakwi rigged the elections. Edith’s inauguration was going to be suspended until the case is disposed off in the concourt. So ECL was…
So ECL was going to continue as a President until a new winner is declared to whom he would hand over power. Continuing with our example where kalusa was petitioning that Edith rigged, the concourt after weighing the loose evidence submitted by Kalusa wa going to declare Edith as a winner and ECL hands over power to Edith.
HH must be committed to Chainama. His grandios illusions are off the chain!
LET THE LAWYERS AND THE CONCOURT BE DONE WITH THE LEGAL SHOWDOWN OF THE ZAMBIAN HISTORY. AFTERWARDS THEN WE CAN COMMENT. OTHERWISE WE ARE WASTING TIME WITH FEELINGS AND OPINIONS HERE. THE CON-COURT IS NOT ON THIS PLATFORM NEITHER IS ECL, HH, WINA, GBM & ECZ.
Professor Mvunga was a key player during the constitution making process and he understands the contents of the new constitution He is speaking from an informed position and fuuls and busy insulting him and displaying their ignorance.
The real constitutional lawyer and professor at a real university, said and I quote..”the constitution that Lungu signed is VERY flawed, a product of bad drafting and bizarre articles”.
So all you folks who are excited about the title “professor” better think again. Like Mushota BB 2014, it is possible for one to be professor and yet be way beyond best-before date.
With all due respect, it sounds like the Professor hasn’t even taken time to look at what the current Constitution says. That’s why he hasn’t quoted anything from it in his arguments. For those of you who have access to the new Constitution, even a cursory inspection of Articles 101 through 105 clearly shows that the President- elect has to step down and the Speaker takes over, once a petition has been filed challenging the election results. Here is exactly what it says in Article 104, Section 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) dissolve the National Assembly.
So there…
(Continued) …you have it. It’s crystal clear. He needs to take time to study the new Constitution before making such pronouncements.
Really laughable…you call a retired Professor to come and represent you…when they are young hungry and fresh legal minds out there!!
It is sad that everything looks difficulty for some people to understand.
Prof. Mvunga has referred to two constitutions in his submission;
1) He makes reference to the new constitution and points out that under run-1, there is no provision requiring the incumbent to step down. This is the case at hand, ECL’s election falls under first run. So he settles the matter here that under their new constitution it does not apply.
2) He then looks to the possibility of precedence, just in case that is where HH and his lawyers have based their call. He argues from angle that even from the point of view of precedence there is no such occurrence ever.
So am shocked to see dome comments completely out of any context.
You guys
It is sad that everything looks difficulty for some people to understand.
Prof. Mvunga has referred to two constitutions in his submission;
1) He makes reference to the new constitution and points out that under run-1, there is no provision requiring the incumbent to step down. This is the case at hand, ECL’s election falls under first run. So he settles the matter here that under the new constitution it does not apply.
2) He then looks to the possibility of precedent, just in case that is where HH and his lawyers have based their call. He argues from angle that even from the point of view of precedent there is no such occurrence ever.
So am shocked to see dome comments completely out of any context.
@ Peace for Zambia. Exactly the point. Section 101 (4), (5), (6), (7) deals with a petition under Run 1, and there is no mention of the President stepping aside. S101 states:
(4) A person may within seven days of the declaration made
under clause (2), petition the Constitutional Court to nullify the
election of a presidential candidate who took part in the initial ballot
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 was not complied with.
(5) The Constitutional Court shall hear an election petition filed
in accordance with clause (4) within fourteen days of the filing of
the petition.
(6) The Constitutional Court may, after hearing an election
petition—
(a) declare the…
(a) declare the election of the presidential candidate valid;
(b) nullify the election of the presidential candidate; or
(c) disqualify the presidential candidate from being a candidate
in the second ballot.
(7) A decision of the Constitutional Court made in accordance
with clause (6) is final.
See who is talking! Learned Professor Mvunga? Real Wako Ni Wako!
“I am not aware of when a President has stepped down or even an MP because of a petition against their election into office” says educated Mvunga. Under old or new constitution? Has education hit a hard wall for a Professor to fail to understand the new constitution?
Is it being physically blind u can’t find article dealing with Presidential petition or Wako Ni Wako based blind loyalty? We don’t need a precedence from elsewhere to do the right thing! We can as Zambians set the precedence under the new constitution. PF just want people to accept their own concocted interpretation that is at variance with new constitution.
Thank God, Lungu nailed himself by signing the constitution. If he listen to Miyanda he…
Thank God, Lungu nailed himself by signing the constitution. If he had listened to Miyanda he could have been sworn in along time ago based on fraudulent result!
Now he is stuck between hard surface & the space i.e. your enemy is about to catch u & u can’t bury yourself because the ground is hard & you can fly because you have no wings!
He is now be busy trying to use all crooked Lawyers who at one time earned a dubious name & in the process he is destroying their careers!
The level of ignorance among the so called neo-elites is very confounding! Little do they even know that the new and/or amended constitution was Prof Mvunga’s brainchild. Prof Mvunga is actually the architect of the entire document including the Bill of Rights not only that he has been part of all attempts to deliver a people driven constitution from time immemorial.
Some comments are so comical it is unbelievable if some of us still have souls … In the quest to spin everything without objectivity for the sake of cadrism opinion are skewed even from seemingly descend individuals.
Well, the good news is that the smart people of the Zambian Enterprise have spoken and the ConCourt will affirm that by week’s end … life should return to normal for all neo-cons but not the…
Cont …
… Life should return to normal for all new-cons but not the new-elites because that’s their genetic makeup. They have to lie about everything believing that the more the tell the same lies eventually people will start taking them to be truths.
The truth is not palatable to certain speciesisms because they cannot handle it!!! I personally did not want to comment on this until the ConCourt issues a verdict but Zambia Is Greater Than Any Single One Of Us and the more lies are peddled the more we lose our moral fiber as a nation.
And by the way, Prof Mvunga, Eric Silwamba, et al is the winging team just like ECL won the election and there’s nothing HH and his minions can do about it. Let this be the last warning to all minions, ECL is in charge and we run this country
Meant to say “Prof Mvunga, Eric Silwamba, et al is the winning team”
Sunny Chintombwa is indeed an Under 5 politician who cannot interpret straight forward Articles in the Constitution
PF guys are capable of anything. They arrested Prof. Chirwa because he wanted to construct an underground rail system in Lusaka. Now they have brought Prof. Mvunga to twist the constitution.
old man are you hallucinating or what does article 103 and 104 say in the event that a petition is granted.Stop wako ni wako we not dull. Were does is it say in the constitution that the president can only step down when the election is nullified ,you have not quoted any were. I you so old that your grey matter has stopped functioning.
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) dissolve the National Assembly
@B R Mumba, Sinyo!
Of course we know that this constitution is the Professor’s brainchild – that is why it is as confused as Professor Mvunga. Where else but Zambia where people would leave an On Old Senile and Semi conscious Ar.se.whore to author such an important document for the whole country!!
The results are there for everyone to see – starting from the Grade12 clause to the Presidential petition clauses!! We are living witnesses to the most incompetent Law Professor in the World!!
@chilyata … I promise to respond to you but only if you are capable of excogitating without insults. Yaba!! Is this the caliber of the so called intellectuals this country is left with? No wonder your attorneys took 5 days just to come up with a flawed petition and wasted 2 more days on technicalities.
Ala bwafya bane … Vya kulolavye te vya kuvwanga
Who voted for the speaker to be our president? Noone. So why should he become our commander in chief? What if he declares war during the time he is acting? And brings back Nchito? And declares that quantum won’t pay certain taxes? Lungu will have to come and undo that.
THIS PETITION IS A SHEAR WASTE OF TIME. HH AND HISUPND LOST IN THE ELECTIONS HANDS-DOWN. HOPING THAT HE IS GOING TO WIN IN THE PETITION FROM OVER A PERSON WHO CLEANILY WON THE ELECTIONS IS TULY WISHFUL THINKING. HH SHOULD JUST START PAYING HIS ELECTION SPONSORS THEIR MONEY BACK INSTEAD OF BUYING TIME WHICH IS NEVER THERE. HIS SPONSORS SHOULD HAVE KNOWN THAT HH WOULD NEVER AND WILL NEVER WIN ANY ELECTIONS IN ZAMBIA. NOT EVEN IN A COW KRAAL. THE MAN, “SH!T AT THE ORIGIN OF A RIVER WHILE WANTING TO DRINK FROM DOWN-STREAM”, SINCE EMBRASSING TRIBALISM AND CHAMPIONING IT. ALILUSO MWAICE. LET HIM JUST FIND SOME ELSE TO DO. MAYBE BEING AN AMBASSADOR IN LECTURING OTHER WOULD-BE UPND LEADERS AGAINST TAKING A TRIBAL ROUTE.
This country is now getting completely polarized, as all one needs to read is the sir name of the opinion is as bias as the voting pattern. Why should this prof be commenting on this matter which is before courts if law if it was not for wakoni wako syndrome which is slowly destroying the unit of this nation…. Zambians if we continue listening to people who have lived their lives, we are leaving little or nothing for the next generation to enjoy in this country.
Mushota I have also read the amended Constitution and I agree with what Mvunga is saying. The person declared winner at the first ballot remains president elect until the petition goes against him that is when he steps down. In fact the reason to petition is that the election shpould be nullified at the end of it and not before. Mushota the worm, the natural and simlpe prostitute.
I am surprised that even Lawyer Nvunga, the Professor cannot read anymore…Is he too old and tired now to read the portion of the new constitition..my foot!
So that’s the case,. Thank you for the free lecture
If the law is an ass, then Prof Mvunga is a jackass! He failed to advise his younger brother Patrick Mvunga who was Deputy Minister of Finance that there was no such job as Deputy Minister since 3 January 2015 when the new Constitution was signed and came into effect. Now poor Patrick Mvunga has to cough up all that money he illegally got for 7 months. I hope Lungu understands that Prof Mvunga is a master of the old UNIP era Constitution and not the new PF bastardised Constitution.
This Mvunga is a dunderhead, he just needs to retire and rest from misleading the nation. How can he be comparing Lungu’s constitution to the constitution before 5 th January 2016? When you are old and tired, the best you can do is retire in peace, pack your bags and go to the village and start counting trees,
Sorry professor have you read the constitution? I guess as you get old you forget common knowledge. PF closed the radio and TV station thinking it’s only Tongas and UPND who watch the station, shame on you. You’re just trying to stop people the citezen from getting news. People of Zambia you may think you’re are doing yourselves a favor by supporting Lungu and his friends. You will reap slavery. It’s taking the nation backward, killing freedom of speech.
Is the architecture of the same Constitution you talking about
Just because you disagree with him does not mean you know any better. You need to be reminded that the prof played an important role in putting this same constitution together. Yours is just to piss in the wind.
@3. Kelvin,
You need to take time to understand what Prof. has said.
Please understand that, Prof. Mvunga has referred to two constitutions in his submission;
1) He makes reference to the new constitution and points out that under run-1, there is no provision requiring the incumbent to step down. This is the case at hand, ECL’s election falls under first run. So he settles the matter here that under the new constitution it does not apply.
2) He then looks to the possibility of precedent, just in case that is where HH and his lawyers have based their call. He argues from angle that even from the point of view of precedent there is no such occurrence ever.
So am shocked to see some comments completely out of any imaginable context, and people getting confused with simple 1+1.
you are a fool, kelvin profesor is the engineer of the new constitution in case u dont knw ask yali president will tell you
Mvunga is not the architect of the new Constitution. His Constitution was drafted in the 1990s and ignored. It was the same for the Mung’omba Constitution and even the latest one that was revealed in 2014. What Lungu did was to bastardise the latest draft to come up with his own PF Constitution which did not have “controversial” clauses. However, he forgot that a draft had to be meaningful with all other provisions. That’s why we are in the current mess where nobody understands what is in the Constitution, including Lungu himself.
Kelvin you are really one of the so many backward Tongas. Do you really need to be reminded that the Prof is a major contributor to the current constitution? Remember the Mvunga constitution review commission? The current constitution is composed of the Mvunga, Mwanakatwe and Mung’omba Review commissions. So dont show your dullness here we mbwawe, we mwana wambwa
I guess the new constitution is confusing everyone…. You see why Sata didn’t want the ‘people driven’ constitution?
This one is animal driven . . . .just accept what Prof Mvunga has hinted .thus just a tip of the ice berg -nothing is straight forward in life. Wish HH lots of luck Ifintu ni Lungu
For your information the one who didn’t want the so called people driven constitution was fat john.It took almost 10years, just discussing it NOT Mr Sata.
Yes the new constitution has brought some challenges, but these challenges should be addressed as time goes on.It needs non political serious approach.The NGO’s who supported the creation of the new constitution became dumb when it was enacted.Even the referendum,Civil Socities were supposed to be in the forefront to educate the people.Now they are asking for another referendum to be undertaken, please serious confused Longwe, it needs money and time.Developmental Activities are slowed down when its election time.
@4. Jere,
There is nothing confusing, just take time to understand what Prof. has said.
It is important for you to understand that, Prof. Mvunga, in being exhaustive, has referred to two constitutions in his submission;
1) He makes reference to the new constitution and points out that under run-1, there is no provision requiring the incumbent to step down. This is the case at hand, ECL’s election falls under first run. So he settles the matter here that under the new constitution it does not apply.
2) He then looks to the possibility of precedent, just in case that is where HH and his lawyers have based their call. He argues from that angle that even from the point of view of precedent there is no such occurrence ever.
So am shocked to see some comments completely out of…
<b<"Prof Mvunga said it was not the first time that Zambian courts were dealing with a presidential petition, and there has never been at any point a President or even a Member of Parliament stepped down because of such court action".
Learned Prof, I thought we have a new constitution baba? This reasoning is like saying, a candidate needs to only attain a simple majority and not 50%+1 because that has always been the case in previous elections.
Spot on chosen one! Poor old Professor has not read the new constitution. Lol
He is a top dog in constitutional law and trash his authority at your own peril. ….law is an asssssssssss!
Correction he was a top dog once….
Even a Bull Dog looses its bit when it get old
Even a Bull Dog looses its bite when it get old
Have you read the old constitution
BUT ITS MVUNGA THE MASTER MIND OF THIS SAME NEW CONSTITUTION YOU ARE STRUGGLING TO UNDERSTAND! HIMSELF WITH PRIMARY SOURCE DOCUMENTS KNOWS WHAT HE IS TALKING ABOUT! EVEN THE CONCOURT JUDGE AYOPA WHEN MVUNGA OPENS HIS MOUTH TO SPEAK!
@5. Chosen One,
May I urge you to take time to understand what Prof. has said.
It is important for you to understand that, Prof. Mvunga, in being exhaustive, has referred to two constitutions in his submission;
1) He makes reference to the new constitution and points out that under run-1, there is no provision requiring the incumbent to step down. This is the case at hand, ECL’s election falls under first run. So he settles the matter here that under the new constitution it does not apply.
2) He then looks to the possibility of precedent, just in case that is where HH and his lawyers have based their call. He argues from that angle that even from the point of view of precedent there is no such occurrence ever.
So am shocked to see some comments completely out of any…
You are wrong old man! AG was right!
The Prof is always right …..The judges will be quoting from his books . . . .
Some people lose their heads as they become old! The issue you are missing sir is that we have an amended Constitution-the first of its kind in Zambia and its this Constitution that has established the Concourt under which the petition has been placed. Zambia has had Presidential Petitions before but not under the Concourt. Whats wrong with these people in PF really? Why cant this old man just openly say Lungu is feeding him?
Lungu is feeding both the old professor and his son former deputy finance minister Patrick Mvunga…no wander he was a nominated MP
@7. Kambwili,
I urge you to take time to understand what Prof. has said.
You neef to understand that, Prof. Mvunga has referred to two constitutions in his submission;
1) He makes reference to the new constitution and points out that under run-1, there is no provision requiring the incumbent to step down. This is the case at hand, ECL’s election falls under first run. So he settles the matter here that under the new constitution it does not apply.
2) He then looks to the possibility of precedent, just in case that is where HH and his lawyers have based their call. He argues from that angle that even from the point of view of precedent there is no such occurrence ever.
So am shocked to see some comments completely out of any imaginable context, and people getting confused…
That is why you can not understand the new constitution; twisted minds always. Start by first establishing the relationship between the senior Mvunga and the other, and then find out what their names are!!!
(Btw, professor is not the senior’s first name)
@7.1 ZILIMBWEE, refer to my comment above…
They are brothers but still professor failed to advise his young brother in January 2016 that the new Constitution signed then had no provision for Deputy Ministers. A legal novice like Nawakwi pointed this out then and the ConCourt agreed with her a couple of weeks ago. Does Prof Mvunga only think when money is involved?
Zambia is in trouble because of sh!t lawyers like Mvunga. Just the other day, another PF vuvuzela lawyer was arguing that there was no speaker until I showed him article 72. What is wrong with this country kanshi? Let him read the following articles:
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 Presidentelect
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…
So was the petition against the President elect or the incumbent?
@Mutoloba THE FACT THAT YOU COPY AND PASTE SOME SEGMENTS OF THE CONSTITUTION DOES NOT IMPLY THAT YOU KNOW WHAT YOU ARE TALKING ABOUT. FOR EXAMPLE, YOU HAVE NOT CITED ARTICLE 103 (1) AND ARTICLE 105. ARTICLE 103 (1) SHOULD EXPLAIN THE CIRCUMSTANCES UNDER WHICH THE PETITION MUST BE ENTERTAINED. IN SHORT, IF THE PETITION IS NOT FILED ACCORDING TO THE PROVISIONS OF ARTICLE 103 (1), THEN THE INCUMBENT CONTINUES. DO’NT BE DULL.
@8. Mutuloba,
@7. Kambwili,
I wish to urge you to take time to understand what Prof. has said.
You must understand that, Prof. Mvunga, in being exhaustive, has referred to two constitutions in his submission;
1) He makes reference to the new constitution and points out that under run-1, there is no provision requiring the incumbent to step down. This is the case at hand, ECL’s election falls under first run. So he settles the matter here that under the new constitution it does not apply.
2) He then looks to the possibility of precedent, just in case that is where HH and his lawyers have based their call. He argues from that angle that even from the point of view of precedent there is no such occurrence ever.
So am shocked to see some comments completely out of any…
LT please be transparent in your reporting. As you informed us yesterday, Patrick Mvunga is one of the attorneys representing Mr. Lungu so will naturally say what he has said. He is being paid to say it!
(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) dissolve the National Assembly.
@10. Mutuloba,
I see that there is more of emotions being expressed, and a lot of Vite support from a particular side. I can see what is giving HH too much hope – passionate emotional support, not much analysis even from his lawyers.
May I urge you to take time to understand what Prof. has said.
It is important for you to understand that, Prof. Mvunga, in being exhaustive, has referred to two constitutions in his submission;
1) He makes reference to the new constitution and points out that under run-1, there is no provision requiring the incumbent to step down. This is the case at hand, ECL’s election falls under first run. So he settles the matter here that under the new constitution it does not apply.
2) He then looks to the possibility of precedent, just in case that…
Prof Muvunga forgot that there is a new constitution which has very different and specific clauses from the previous Constitution provisions.
ECL missed the details on this as he thought this event will not take place….
BUT ITS MVUNGA THE MASTER MIND OF THIS SAME NEW CONSTITUTION YOU ARE STRUGGLING TO UNDERSTAND! HIMSELF WITH PRIMARY SOURCE DOCUMENTS KNOWS WHAT HE IS TALKING ABOUT! EVEN THE CONCOURT JUDGE AYOPA WHEN MVUNGA OPENS HIS MOUTH TO SPEAK!
@11. Independent
Allow me to tell you to take time to understand what Prof. has said.
It is important for you to understand that, Prof. Mvunga, in being exhaustive, has referred to two constitutions in his submission;
1) He makes reference to the new constitution and points out that under run-1, there is no provision requiring the incumbent to step down. This is the case at hand, ECL’s election falls under first run. So he settles the matter here that under the new constitution it does not apply.
2) He then looks to the possibility of precedent, just in case that is where HH and his lawyers have based their call. He argues from that angle that even from the point of view of precedent there is no such occurrence ever.
So am shocked to see some comments completely out of…
The Attorney General has indicated that he is joining the proceedings. Prof, how are you going to work together when you are issuing contradictory statements? I also just wonder what you are going to defend when you have a matter before the court where the court has already convicted your client on the issue of ministers for being in office illegally and abusing state resources during campaigns. There is no appeal! Be sincere to your client.
The is nothing to defend….
…because some Govt organs have been cited eg Police and ECZ and the AG must attend to the allegations….
the man Mvunga was in comma ofr almost a month at one time..his memory doesn’t seem to be right yet..assess him
BUT ITS MVUNGA THE MASTER MIND OF THIS SAME NEW CONSTITUTION YOU ARE STRUGGLING TO UNDERSTAND! HIMSELF WITH PRIMARY SOURCE DOCUMENTS KNOWS WHAT HE IS TALKING ABOUT! EVEN THE CONCOURT JUDGE AYOPA WHEN MVUNGA OPENS HIS MOUTH TO SPEAK!
This old man wants a piece of the pie. He is a has been. Let him go sit in peace. Now he wants to get some of the money or maybe a big job in PF. Old man, go rest somewhere., Your time has past. you sold your integrity a long time ago.
One annoying thing about Zambia is, even the people we look to as the most learned behave like illiterates once they are oiled. I would have been happy if the professor quoted articles in the constitution linked to the presidential petition to support his argument. Article 103 clearly explains what needs to happen in the event that a presidential petition takes place.
Exactly my view. These guys tend to give half baked detailed. As you state he should have quoted the clause in the constitution that he has made reference to.
Continued..
2) He then looks to the possibility of precedent, just in case that is where HH and his lawyers have based their call. He argues from that angle that even from the point of view of precedent there is no such occurrence ever.
So am shocked to see some comments completely out of any imaginable context, and people getting confused with simple 1+1.
@15. Mutuloba,,
Don’t be too quick to read, worse still to post views.
May I urge you to take time to understand what Prof. has said.
It is important for you to understand that, Prof. Mvunga, in being exhaustive, has referred to two constitutions in his submission;
1) He makes reference to the new constitution and points out that under run-1, there is no provision requiring the incumbent to step down. This is the case at hand, ECL’s election falls under first run. So he settles the matter here that under the new constitution it does not apply.
2) He then looks to the possibility of precedent, just in case that is where HH and his lawyers have based their call. He argues from that angle that even from the point of view of precedent there is no such occurrence ever.
So am…
You know what?
I now understand why HH is so mislead by Mushipe and Mwimbu.
You must understand (I hope you can) that, Prof. Mvunga, in being exhaustive, has referred to two constitutions in his submission;
1) He makes reference to the new constitution and points out that under run-1, there is no provision requiring the incumbent to step down. This is the case at hand, ECL’s election falls under first run. So he settles the matter here that under the new constitution it does not apply.
2) He then looks to the possibility of precedent, just in case that is where HH and his lawyers have based their call. He argues from that angle that even from the point of view of precedent there is no such occurrence ever.
Shockingly some comments are completely out of context even on the…
old pro represents the past that’s why we have wrong figures at ECZ results wrong 50% present calculations because of this old guys they were born before computer BBC leave everything in the hands of born After computer BAC no one will say that you are not old professor
An update anyone, has Kambwili died?
MHSRIP he was a true democrat.
@17 Scruface, you can have better things to ask about! Kambwili may not die till God will! When Lungu was elected to succeed Sata you dwelled so much on his health and went to the length of concorting false medical records. For you,Lungu was dead and was not to live to this election and win it! But there you are still fighting the same Lungu. Kambwili’s BP is a well known issue which even himself talked about. There is nothing new about him being admitted in hospital for that and if at all he passed on that will just be his appointed time. It will not fortunes for UPND just like the death of Sata has not led the automatic success for HH despite the dances he was doing in jubilation during the campaigns for the Presidential by-election in 2015! DON’T HATE BE HAPPY!!
Evil Man…how dare you wish someone dead!
Just had another look at the prof’s picture, it just confirms my suspicion. He made the comments when he was plastered with Jameson at State house. I’m sure when he wakes up and sees the comments in the media he will surely feel embarrassed.
BUT ITS MVUNGA THE MASTER MIND OF THIS SAME NEW CONSTITUTION YOU ARE STRUGGLING TO UNDERSTAND! HIMSELF WITH PRIMARY SOURCE DOCUMENTS KNOWS WHAT HE IS TALKING ABOUT! EVEN THE CONCOURT JUDGE AYOPA WHEN MVUNGA OPENS HIS MOUTH TO SPEAK!
Out of date Lawyer. Some of these Lawyers are past their glory days and are just misleading the nation. They’re just in name. The spirit behind Lungu stepping aside in the new constitution is simply to level the playing field. Professor Mvunga must ask himself why the Chief justice has refused to swear Lungu in. Anyway am just wondering if he won’t be slapped with contempt of court charges for commenting on matters before the bench. Attorney general advised Lungu not to return ministers and now he’s told him to step aside and again Lungu has refused. Am sure AG will be proved right again.
Firstly, you do not seem to know that he is one of the defense lawyers. Secondly, you do not seem to know that he is one of the architects of both the old and amended new Constitution.
Thirdly, you seem to be disappointed that HH misdirected himself at law.
Fourthly, you seem to be worried that the election petition will look frivolous.
Reasoning of the Professor is so shallow. I’m shocked!
The Poor Prof has gone past his Best Before Date!
It is people like “Prof” Mvunga that are misleading this country! What a shame!
The Lusaka Times published this item to embarrass the old and tired professor!
Can professor Mvunga tell us the meaning of this article
Article 104
(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) dissolve the National Assembly
Article 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 was not complied with
Article 103(3) The Constitutional Court may, after hearing an election
petition—
(a) declare…
The catch phrase from prof. Mvunga is ”WINNING IN THE FIRST ROUND”. HH’s petition does NOT fall under article 103 but 101.The UPND are seeking the NULLIFICATION OF LUNGU’S ELECTION and DISQUALIFICATION FROM BEING A CANDIDATE IN THE SECOND BALLOT. Those two remedies are under a petition in article 101(6) and NOT 103 which could have triggered transfer of power to speaker .Read UPND’s petition and articles 101(6), 103(3) and then 104(3)
Please answer a simple question. Who is the Incumbent President here? may be let me answer for you:
1) Edgar Lungu is he incumbent based on the mandate he got in January 2015.
2) Edgar Lungu is NOT an incumbent based on the elections on 11th AUgust, 2016 but President-elect. Therefore, the article you have sited does not apply for (2) to step down because UPND have not petitioned Edgar on (1) elections of 2015 but on President-elect on (2).
Read carefully and understand.
Where is the ”WINNING IN THE FIRST ROUND” petition cited in which case the petition only necessitate the stepping aside of the incumbent ?
My understanding is that where the petition against the incumbent was file in round one orr re-run the incumbent has to step aside!
But the major question to me is he Lungu’s votes reduce like ECZ has already started doing & votes fall below 50%+1 & it goes to a re-run will he still remain out of office? I know in this case his election should be nullified but knowing Zambian courts the worst they can rule against the incumbent is to ask for re-run between HH & ECL?
This would be wrong ruling against the constitution but mark my prediction!
@ Titus Mwaba, some interpretations kuti waseka! You PF guys are comforting yourself and perpetuating lawlessness by making strange interpretations. Anyway, if your party lawyers have warped interpretations, we cannot laugh at you laymen.
Imagine you are facing a murder case, I bet you wouldn’t hire the senior learned Prof.
I am a lawyer.
He is a constitutional lawyer ( Harvard trained). If I had a criminal matter i would look for a criminal lawyer not you Liar
BUT ITS MVUNGA THE MASTER MIND OF THIS SAME NEW CONSTITUTION YOU ARE STRUGGLING TO UNDERSTAND! HIMSELF WITH PRIMARY SOURCE DOCUMENTS KNOWS WHAT HE IS TALKING ABOUT! EVEN THE CONCOURT JUDGE AYOPA WHEN MVUNGA OPENS HIS MOUTH TO SPEAK!
That is just lungu……the man is corrupt and a law breaker with 0 integrity always looking to twist the law.
Now you know why he is a fraud convict…..
YOU FOOLS, WHAT MVUNGS IS TELLING YOU IS THAT THE CONSTITUTIONAL COURT NEEDS TO HEAR THE MERITS OR DE-MERITS OF THE PETITION. YOU DONT JUST WAKE UP AND SAY “I PETITION” AND IMMEDIATELY THE PRESIDENT STEPS DOWN.
Its now up to Concourt under advice from the Attorney General to tell Lungu the Legal Position. Lungu is actually in breach of the New Constitution by refusing to handover power to the Speaker of Parliament. Lungu is approaching Concourt with dirty hands and should be ordered to step down forthwith.Lungu is making the same mistake he made over the illegal Ministers. Why was a provision made for the Speaker to Act as President when there is a Petition? Surely u cant have a President and an Acting President at the same time in Zambia? Lungu is just buying time and hoping after 14 days he can be sworn in with or without a Concourt order. Time will tell!
Mvunga is ancient, a dinasour… he worked under the one party state system during the wako-in-wako days now he is catching up with the new multiparty system which no one among the UNIP leaders thought it worked in Zambia. WAKE UP PROF. SHIBUKA MUDALA…!
Even KK was taken aback when he noticed Zambians embraced the new change – WHICH WAS totally abused by Chiluba but revived by Levy Mwanawasa, and even Sata tried to destroy it, but failed. Now Lungu is trying to take Zambians in reverse gear, back to the 1970s and 1980s 6O’Clock curfews and no radio and TV
Mvunga you and your friends left UNZA in a mess, now you want come back and do what? Change the law? LAZ know what they are doing.
Bloggers read the constitution and what Prof Mvunga has said very carefully:
Section 101 (4), (5), (6) and (7) refer to a petition at the first round and nowhere does it say the the sitting President must step down.
Section 103 and 104 are independent of S101 and both refer to a petition at a re-run or where the election has been nullified by the Concourt. This is a petition at the second round. This is when the President must step aside.
The professor is spot on and I repeat: read Section 101 and what the professor has said very carefully.
101 refers to the election of the president but makes reference to the petition of the president. 103 deals with the petition in more detail.
The Prof is still sleeping, anyone to wake him up please!!!
INSULTS INSULTS THATS ALL YOU KNOW AND LOVE DOING.DO YOU GUYS HAVE PARENTS OR ARE GOING TO REMAIN YOUNG FOR THE REST OF YOUR LIVES?????THIS IS THE PROBLEM WITH UPND CADERS YOU THINK YOU ARE TOO SMART,CLEVER THAN EVERY ON IN THIS WHOLE WORLD,lIKE HH HE THINKS FYONSE AWAFISHIBA UMUCHINSHI BALUMENDO NABAKASHANA WALIWAMA EVERY LAWYER APA IS BEING PAID,EVEN BENA MUSHIPE AND THEM BONSE BALELYAMO SO WHY THINK PROF MVUNGA AND THEM ARE THE ONLY ONES BEING OILED?????CHINDIKA WISO NA NOKO WENDE INSHIKU ISHINGI MU CHALO MA POLICS FYE AYA KUTEKANYAFYE.
IN THE NAME OF FREEDOM OF SPEECH AND DEMOCRACY YOU ARE ALL LOST AND BECOME DISRESPECTIVE I PIT ALL OF YOU AND YOUR GENERATION,A LOST ONE.
This “WAKO NI WAKO” Disease has not spared even learned Professors & Doctors or illiterates.
Such a shame to Zambia. Such a shame!!!
You have understood nothing from what Prof Mvunga has said, but you feel competent to argue – very typical Zambian.
All the time these Lawyers leave us more confused! While Prof.Mvunga may be right as @26 Pompi has observed ,he spoke without reference to current constitution the way Pompi has done. We are not told in the article where Mvunga was speaking from,whether from courts or streets. It is important to know where he made such pronouncements as we all know that speaking on issues which are before courts attracts “contempt of court charges”. We are less an hour from commencement of court proceedings! Let us wait and see!
Amazing really, one quiet General whom Kaunda persecuted, driving a “black-taxi” I preferentially ALWAYS took from Chilenje, to make ends meet, later did his law degree and I find puts ALL his opinions POIGNANTLY – General Miyanda, u’ve studied the paper ECL shumbu-mushololwaly or counterfactually signed notwithstanding YOUR FREE ADVICE: please clear the legal air so all defranchised understand including ma professa bakale…it is a BLOODY MESS, Lungu cesspool !! 🙁
“Article 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” Article 104 (3) Where an election petition is filed against the incumbent, under Article 103 (1)”(b), the Speaker shall perform the executive functions, except the power to—”
I ask are the terms ‘incumbent’ and ‘president elect’ in reference to the same person? Incumbent suggests someone holding office and president elect means yet to hold office! So Speaker performs executive functions what does that mean? Does it include using the presidential rides or now there shall be 2 security details fro 14 days? Yah some legal drafting leaves much to be desired….
Prof maybe right a mere act of filing a petition…
Incumbent here refers to the person who has been declared the winner. Its the same as President elect. ECZ has declare Lungu as the winner and so he is the incumbent, the one to step down after a petition is filed in.
Honestly is this the caliber of lawyers Lungu has given the mantle to defend him? Will this old gun stand the onslaught from intelligent lawyers like Mutembo Nchito? I doubt very much.
But Kambwili uli folo zoona. A peson does not become incumbent until he/she is sworn in. Simply winning an election does not make one an incumbent. Upon being sworn in the Chief Justice or Deputy Chief Justice, then that individual transitions from a President-elect to the incumbent President. Please learn to read before you you expose your shallowness you Tonga moron
@Ndi muBemba thank you. Am probably the most moronic Tonga! However sorry to say am not referring to tribes. I have no use for tribe. Am referring to your own Constitution which Lungu proudly signed just to look good to Zambians without understanding that its a two-edged sword that would entangle him. My point is, if a sitting President (Lungu) has won re-election, he is the incumbent and is not referred to as a president-elect because he is already in office and is not waiting to become President. If on the other hand HH had won and was scheduled to enter and become President, then he would be referred to as the President elect while Lungu would be said to hold the office on a lame-duck basis bending swearing in of the new President.
@Ndi muBemba thank you. Am probably the most moronic Tonga! However sorry to say am not referring to tribes. I have no use for tribe. Am referring to your own Constitution which Lungu proudly signed just to look good to Zambians without understanding that it’s a two-edged sword that would entangle him. My point is, if a sitting President (Lungu) has won re-election, he is the incumbent and is not referred to as a president-elect because he is already in office and is not waiting to become President. If on the other hand HH had won and was scheduled to enter and become President, then he would be referred to as the President elect while Lungu would be said to hold the office on a lame-duck basis bending swearing in of the new President.
Kambwili – Nooo, anyone who wins an election, incumbent or newcomer becomes a President-elect before being sworn in. Incumbency ends at the proclamation of winner. When we say the incumbent has won, we just mean that someone has been re-elected.
@Kambwili, please read;
106. (1) The term of office for a President is five years which
shall run concurrently with the term of Parliament, except that the
term of office of President shall expire when the President-elect
assumes office in accordance with Article 105.
This is when the term of the Incumbent President expires, i.e. after President-elect is sworn in by Chief Justice (Article 105). You are simply confused because the Incumbent won an election and is also President-elect…
HH needs to take his petition back to his home and in the quiet of his personal space, ACCEPT defeat. He is such a Bully it’s unbelievable the courts are even giving him enough time to hang himself! Really the man has the wicked spirit of Saul in the bible who gambolled around chasing David pillar to post when he was clear David was righteous, laying all kinds of trickery to trip him.
Ok then simply tell your Lungu to give HH the 8,000 votes stolen from Lundazi, 2,000 votes stolen/deducted from HH in Kanyama, 1,567 votes stolen in Chingola and given to Lungu. Also tell PF to agree to a recount of all votes starting tomorrow. After this is done, HH will go home and enjoy his tea. Why are you people scared of a recount if you genuinely won? A simple recount!
Poor Bloggers, ECL is still a Zambian president and at no time did he hand over power that is vested in him after elections, 2015………………so to should he hand over power to?
Go go ECL 2016
From your friends in Livingstone
This forum is free even for grade 7 dropouts.
This chap is very stupid. First, he is NOT even a professor but is an ASSOCIATE PROFESSOR, correct the lie! Second, he is NOT professor of constitutional law, but ASSOCIATE PROFESSOR of land law, correct the lie. He knows nothing about constitution. Third, we are NOT talking about MPs here, why bring MPs in a discourse about president? Does he not see his stupidity? Mvunga, you are stupid. Can you editor give me his contact details please? I want to contact him directly and sort him out, *****!
Order. Compose yourself. The truth hurts
…Mvunga Commission was headed by your god hh . . . .
Too much contempt of court… can we for once let the courts do their job by not pre-empting the final verdict!!
As for me, I will wait for professor general miyanda state counsel to tell me what to believe. For those that don’t know him, prof general miyanda is a well versed self proclaimed constitutional lawyer who has written various articles, maybe books, about constitutional law or his perception of it. Such a man will definitely guide the nation on what to do when faced with such a crisis. This is the same general president of a certain party which he has since abandoned citing constitutional matters. I implore all Zambians to wait for the wise words from THE general.
The catch phrase from prof. Mvunga is ”WINNING IN THE FIRST ROUND”. HH’s petition does NOT fall under article 103 but 101.The UPND are seeking the NULLIFICATION OF LUNGU’S ELECTION and DISQUALIFICATION FROM BEING A CANDIDATE IN THE SECOND BALLOT. Those two remedies are under a petition in article 101(6) and NOT 103 which could have triggered transfer of power to speaker .Read UPND’s petition and articles 101(6), 103(3) and then 104(3)
Wrong. UPND has also petitioned under 103 which is in fact the correct petition because there is a PRESIDENT-ELECT. Since there was a clear winner after election day, a declaration was made under article 101(2) and that was the end of the election, no initial and second ballots. Just an election. Article 101(4) petition is only when there is no winner declared under article 101(2) and there is a second or run-off ballot. There is a typo in this provision which is obvious if you read the Technical Committee draft article 99 (which became article 101 in amended constitution). A CANDIDATE (which is very different from a president-elect see article 266) can be petitioned between initial and second ballots. That is not the case today. So article 103 is correct petition and article 104 then…
Lets assume HH was declared winner and ECL was the one petitioning, would ECL still have been holding on to power or the Speaker would have immediately taken over after the petition? I believe ECL’s mandate to rule ended and whatever major decisions he makes between now and the time the petition will be disposed off stand to be challenged and potentially nullified. For now his president elect and should be accorded proper security details until declared otherwise by the Concourt. I think the Prof. has shot a blank one on this one
@Checkmate, read Article 106 of the new Constitution and come back…
Yes, ECL would have remained incumbent President pending swearing
-in of President-elect. HH’s swearing-in (snerk) would have been delayed by the petition pending determination by ConCourt. Speaker does not even figure.
ECL is both Incumbent AND President-elect.
Simples…
Our liars (lawyers) have a lot of work to confuse the masses! Mvunga is a well known professional lawyer and he is putting his word forward. In the meantime we have the Attorney General who first talked about this issue of the president stepping aside in the case of a petition. So who should we listen to and which law is the professor Mvunga citing? It is important to study this current constitution before issuing statements, can the Ag please avail us with what the constitution exactly say about this issue. Previous petitions and constitution are non binding in the current state, so we can dare compare the previous issues to the current.
I don’t understand this country at all. The constitution is there, written in black and white but why are we still debating the same issue day in, day out? Is it the English that we don’t understand or what? It’s obvious that this amended constitution has brought us more problems than solutions. We have got the Chief legal advisor to the Government in the name of the Attorney-General who clearly explained that when there’s a Presidential petition, the President-elect must hand over power to the Speaker of the National Assembly. His legal advice has been ignored.The same Attorney-General, before the dissolution of Parliament in May this year made it clear to the nation that Ministers should not be office after the dissolution of parliament and he was vindicated by the Constitutional…
The petition can be EITHER against the Incumbent President OR the President-elect. Please read the same Constitution as well.
Speaker only comes in when the petition is against INCUMBENT. The President-elect has NO executive functions for the Speaker to assume UNTIL he is sworn in by Chief Justice.
(Remember, President-elect is only declared winner by Chairman of ECZ who is Returning Officer).
AG was WRONG!!!
The President Elect should have been sworn in on Tuesday 23rd August 2016. The President Elect is Edgar Lungu and is the Incumbent. The swearing in was postponed becoz of the UPND Petetion filed in Concourt. Since Lungu has not yet been sworn in he cant be President of Zambia. As such Lungu cant have legal Executive Powers and cant legally be the Commander in Chief of the Armed Forces. The Speaker of Parliament is the Acting President but needs to be sworn in formally. Prof Mvunga is talking nonsense but he is justifying heft legal fees to be paid by Lungu. Concourt should settle the matter today.
Ba machushi (masauso) re- read and re-read section 101 of the constitution then you will understand why ECL is still president.
Spot on – Lungu anazinyunya eka; His incumbency must cease with his candidature and DEFINITELY after fact when ECZ declared him winner; from then on he is president-elect until swearing-in, which is factually material evidence in the petition before the CoC…it therefore follows that he MUST VACATE the Office of sitting-president(incumbency) in order to be respondent in the case he’s been cited – tHE PRESIDENT CAN’T BE SUED WHILST IN OFFICE and that Person IS the Speaker RIGHT NOW….ECL is wallowing in his own cesspool if he thinks he IS president, no matter how much he intimidates the meek around him to Support this duplicity! It is legal folly, kwena mwasila awisi Tasila…quite prophetic Name that 🙂
Tutwa was right . . . . . . . . .
But Parliament is not Parliament without the President.
Its the national assembly. But which National Assembly. The old one or new one??
You are right prof. But the constitution in this matter requires the president-elect to stand aside. The speaker should at this point commence to perform executive functions.
The President-elect has NO executive functions mwebantu mwe. It’s the Incumbent who has. Read Article 106 to understand the tenure of office of President…
PF has hired an amnesic patient. Do no mock him, I think its old age.
Which constitution is Mvunga referring to? You can see that Lungu is regretting having signed the new constitution because the provisions for the president to step aside when there is an election petition are very elaborate. Mvunga should not mislead the public just because he is a lawyer and thinks we don’t know. What Mvunga is referring to is the old Constitution which was extremely flawed. The new one requires that the Speaker assumes executive powers until the petition is disposed of. What are they fraid of? Why are they failing to observe the law? You can even see from Mvunga’s claim that it is wishful thinking. He has not sited any provisions in the Constitution to justify his claim; all he has done is refer to the old constitution and what used to happen. This won’t work. Just…
Problem with Zambia is bloggers have become legal experts. Also insults and hate has become order of the day. Prof has expressed his opinion which he is entitled to so there is no need to insult him. You will swallow your insults in 10 days if he is proven right. Express your own opinion if you disagree and not insults. Grow into a civil society Zambians please
@Himitwe Hiabola & Pompi, thanks for educating these constitutional illiterates. Let me add something to clarify for them.
Prof Mvunga is using civil language all accomplished lawyers are expected to do, unlike your Martha Mushipe. Another way of reading what the Prof says politely is that there is no way that you can remove a sitting president on the mere filing of a petition or just because some lunatic files a petition. It has to be serious business like after nullification or re-run. Imagine the guy who came out nineth or a lunatic candidate merely filing a petition frivolously and off goes the PRESIDENT of the COUNTRY!!!!!. Prof is telling you politely that there is nowhere in the world where the presidency is taken lightly, be it commonwealth, Europe , America, Russia, China,…
What makes you think that your explanation is gospel truth? It just shows that both you and Mvunga and all PF cadres like you have not read the constitution. I challenge Mvunga and any PF cadre to site the provisions in the constitution to justify what Mvunga was saying. Mvunga and the rest are wishing the new constitution was not signed. Lungu himself is between the devil and the deep sea because he is regretting having assented to a document that he barely read and now it has turned against him. So don’t pretend to sound intelligent when you are the dull one because you have not read and understood the new constitution.
Problem with Zambia is bloggers have become legal experts. Also insults and hate has become order of the day. Prof has expressed his opinion which he is entitled to so there is no need to insult him. You will swallow your insults in 10 days if he is proven right. Express your own opinion if you disagree and not insults. Grow into a civil society Zambians please
Has he handed over to anyone?
Just because he hasn’t doesn’t make him incumbent, therein lies his TREASONOUS FOLLY ! Ka Constitution kali nama loop-holes, the consequences of piece-meal implementation – WHO CAN NOW COERCE THE SWEARING-IN OF THE SPEAKER AS CARETAKER? Lincoln is said to have made a plea in Pennsylvania: Better an imperfect constitution as none at all. Well, there has been 300 years of civilised, learned discourse to the present; LET US START TODAY, 25.08.2016 AT 10, BEFORE THE CoC !! PS: REFUSE M7 ENTRY INTO ZAMBIAN AIRSPACE!! God, I wish Peter Zuze was still there, all this procrastinating bull-sh!t !!
Let Mvunga site the provisions in the new constitution which justify what he is saying. He should not mislead the nation with his cheap legal tantrums. We are very knowledgeable of the provisions of the new constitution and no stu.pid lawyer can mislead us. Mvunga must just shut up.
…Burundi, or even Jupiter. Prof’s white head is all wisdom, but of course HH and his UPND leadership and cadres have never known wisdom. Its alien to them.
It seems even ZIALE dropouts are proving to be good lawyers
Now, here is a scenario: We assume that HH garnered 50+1 and is referred to as President-elect and ECL petitions the election results, would he still be in SH and carry himself as President with a big STICK? Think people, think! At this moment, the instruments of power should be with the SPEAKER whether you like it or not. There is just too much pomposity in the country! The man and his crew do not respect statutes, period!
Yes he would still be president on the basis of ‘incumbency’ – pretty straightforward!
The problem with UPND cadres on this site is that they are brainwashed and believe what ever their Supreme Leader HH says as gospel truth…That amended constitution is not interpreted in isolation to other pieces of legislation…The Judge will be citing books written by the same professor you want to ridicule…
Iwe, Mvunga is not a God, just some old lawyer out-of-touch. How can he say it has always been like this when a new constitution was signed recently. Don’t close your thinking faculties!
Prof, download new constitution from parley site! It’s free.
Professor Mvunga explained that …………
“I am not aware of when a President has stepped down or even an MP because of a petition against their election into office.
“If it is wishful thinking of an individual, that is fine but to think that it is actually in the law, I am not aware of any authority in the Constitution that says that,” he said.
IN OTHER WORDS, HE KNOWS THAT HE IS TAKING PILLS, BUT HE IS NOT AWARE THAT ON A LONG RUN, THESE SAME PILLS CAN CAUSE KIDNEY FAILURE RESULTING IN SERIOUS INTELLECTUAL COMPREHENSION CAPACITY.
Is Mvunga aware there’s a new constitution? Eba lawyer baba Chagwa aba? Can this man be retired?
The amended Zambian Constitution is not exempt from The Universal Declaration of Human Rights, article 11, which states: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” There is no Law in the world which requests the respondent to judge & emit just on himself or herself. Its only Dr. Nevers Mumba & UPND who are convinced that President Lungu should suspend or nullify his election himself. Some has got to do that & who is it, the Concourt itself. UPND were misled by Dr. Mumba that Lungu would step down and this is what motivated them to petition that the speaker may manipulate issues in their favour.
Sorry, justice. There is no Law in the world which requests the respondent to judge & emit justice on himself or herself.
FEELING SORRY FOR YOUR STUDENTS. IF I WAS ONE OF THEM , I WOULD REQUEST TO CHANGE FROM YOUR LECTURES TO SOMEONE ELSE’S OR COMPLETELY CHANGE THE COURSE.
Ma Zambians baliko dull, so when Edith Nawakwi decides to petition, Lungu will step down again! Then Hh will come again to petition, Lungu steps down and so on and on until all the candidates finish their petitions umpteenth times- Lungu will just keep on stepping down and stepping down!
Vide [read] the Constitutional Provision at Page 43, Artticle 104(3).
It is clear there that the incumbent must step down. As to whether or not this is a good Provision is the matter for debate: But, it should be assumed that Lungu read it at ascenting the Constitution! As it stands now, it is the LAw!
It is not clear because those closes must be read in accordance with other clauses. It maybe clear depending on what you want and how you interpret the law to suit. This is why we have different lawyers interpreting differently. How I wish it was straight forward. The rest is about who the judges side with!
104 (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) dissolve the National Assembly.Comment:
I can see that most of you are still at law schools and doing research work… Go on… You will get a plus… And for God’s sake, Ask the speaker to speak for himself if he is interested in the job!!!!LOL
I bet that some of you will be insulting the concourt judges that they have been bought, others will say they have no integrity or toothless or will shower them with all sorts of insults, especially the HH group if they lose the case!!! I can foresee some ending up in jail over this matter…
Yabaa, So this ka Madala is still alive? I thought he kicked the bucket many years back. Very very useless lawyer, a drunkard and chain smoking lazy old man. The last time I met him was in an elevator and he was smoking. Someone almost slapped the ka Madala for those stupid manners. Imagine smoking in a lift.? Has never been a briliant lawyer. Useless
It is now clear why HH is so mislead by Mushipe and Mwimbu. Actions are based on emotions instead of logic.
You must understand (I hope you can) that, Prof. Mvunga, in being exhaustive, has referred to two constitutions in his submission;
1) He makes reference to the new constitution and points out that under run-1, there is no provision requiring the incumbent to step down. This is the case at hand, ECL’s election falls under first run. So he settles the matter here that under the new constitution it does not apply.
2) He then looks to the possibility of precedent, just in case that is where HH and his lawyers have based their call. He argues from that angle that even from the point of view of precedent there is no such occurrence ever.
Shockingly some comments are…
‘Peace for Zambia’,
Your submission is spot on. Professor Mvunga’s post is purely professional and categorical and thus one would expect bloggers to argue for and/or against in respect of the said Constitution and the UPND Petition thereof. The age and/or how old Prof is does not in any way make irrational his legal opinion.
There is no first or initial round in this 2016 election. The election ended after the declaration of a president-elect under article 101(2). Since there is a PRESIDENT ELECT, the petition must proceed under article 103. There is only an initial and second ballot if there is no clear winner on Election Day when we go to clause (3). A petition under 101(4) is between an initial and a second ballot when a CANDIDATE from initial ballot going forward to 2nd ballot can be petitioned. The election then ends when there is a declaration of a president-elect from the second ballot under 101(8). Again this president-elect can then be petitioned under article 103. Read Technical Committee draft article 99(4) (which is article 101 in the amended constitution) which refers to clause (3) not clause…
Law is usually messy everywhere in the world. Interpretation is the problem. See how many Bible versions we have and later on the denominationa. Let us all wait and see what the concourt will decide.
Who would you trust on constitutional matters Hule Mushipe or Prof Mvunga . . . .
Who would you trust on constitutional matters H.ule Mushipe or Prof Mvunga . . . .
People like @Pompi. Have laboured hard to bring some legal reasoning but others have refused to use law but they want ‘fine art’ in their arguments.
I wonder whether Mushipe has a school and all these have passed through hr hands. Too emotional!!
You will note that if one ofthem says, “Mvunga is too old”, they will send 20 approvals in votes. What is that? What are we discussing – age?
It only that I had a lot if free time and data bundle, otherwise I would not have participated. So you, in future, you are very safe because I will note argue with you.
You impress each other and celebrate your views because if you wait until the verdict, you will have missed the chance. So just now, even if it is fake celebration
HH thinks this is 2015 bye elections, no bwana, wake up from your slumber the reality is that on 11 August PF strongholds woke up early and in multitudes to do a Counter Nega Nega (CNN) we knew you had the same old strategy but we were ahead if you.
ECL can’t make the same mistake he did in 2015 to hand over his Presidency to Scott, NO. We know your schemes and dark corner meetings of trying to create a vacuum in National leadership so that those that you have corrupted, and WE KNOW THEM BY THE WAY, could easily favour your stup1d and non starter petition. It’s done Lungu was elected as President on 11 August by over 50%+1, and it’s over.
Am sure the Professor is not telling the truth. He must have made similar statement to Tutwa Ngulube who said petition or no petition, inauguration will take place.
104 (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) dissolve the National Assembly.
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 was not complied with.
“…..and suddenly, every cadre became a lawyer…overnight! What desperation!” Ends the second chapter in my book entitled, “When Greed Knocks – A Circus of Desperate Souls on the Gate of Goodbye”.
Mushota Hachimutwe!
MVUNGA’S MIND IS NOT AT THE PRESENT. HE IS YEARS BACK. SURELY EVEN IF YOU ARE PF AND YOU HAVE YOUR HEART IN YOUR CHEST AND YOUR BRAINS ARE INTACT IN YOUR HEARD, THERE IS NO WAY YOU CAN AGREE WITH MVUNGA. YOU DONT NEED TO BE A LAWYER TO KNOW THAT THERE IS A NEW CONSTITUTION. HE DOESNT SEEM TO KNOW. HE WASTED HIS TIME TO MAKE THE COMMENT HE MADE. IF THIS IS THE WAY HE IS GOING TO REPRESENT THE FORGED PRESIDENT AND PF, THEN WE SAY BRAVO !! ITS A DONE DEAL. WITH THAT MIND OF A LAWYER IN DEEP SLEEP, WHAT WILL BE HIS COMMENT WHEN ALL THE EVIDENCE OF RIGGING IS LAID BARE IN THE CONCOURT BY THE POWERFUL LAWYERS WE HAVE!! PRESSURE IS ON THE PF BECAUSE DEEP DOWN THEIR MINDS THEY KNOW HOW THEIR PARTY RIGGED THE ELECTION. ASK THEM ABOUT HH”S VOTES RETREAVED FROM THE DUSTBIN, ABOUT THE ECZ COMPUTER…
Mvunga vs Mushipe, I rest my case.
Soon the serpent will be down!
Shat up Mvunga before we arrest you for contempt.Go and ugue with your fellow lawyers in court stop talking to masses.Njala na WAKO NI WAKO YA NYOKOLA.
So you have NOT learnt your lessons ba UPND? Failure to listen to anybody is the main cause of your loss at the ballot, this fifth one, the previous four, and the sixth if HH will still be there as candidate in 2021.
I find two types of here . The political and constitutional lawyers. Political lawyers want to panel-beat Zambian laws to suit there political motives while constitutional lawyers protect the laws of zambia. How disappointing to see lawyers are being blinded by politics. Can you imagine d issue of ‘Ministers to remain in their portfolios’ (Linda Kasonde heard all sorts of insults from so-called lawyers), the inauguration of the president with or without Presidential petition’.( only to be denied by the Chief justices) Judiciary please save Zambiy.
To be UPND ni mabvuto. To them just the anticipation of President Lungu temporarily stepping aside for the Speaker would be THE achievement. They have already forgotten about their petition. HH cries for recognition that he is also important like the president. He cannot understand why his money does not earn him the respect and the “His Excellency” title that he wants so much. Someone please tell HH that you dont buy these things, the people dish them out free of charge every five years to the individual that they love.
Iyi ine petition, who will be the witnesses fir UPND when Mwaliteta is behind bars for stealing the very evidence that UPND claim that ECZ lost or did not avail? The petition has collapsed you guys, who will be your witnesses with Mwaliteta behind bars and unbailable, and the people who cheated HH with fake evidence being unwilling to come forwzrd and testify? You dont believe me? So why do you think that HH is begging desperately to.meet President Lungu?
While HH is crying and thinking that the world around him has collapsed, and embarrassed to face his fellow shareholders on company Boards, yes he even avoids the eyes of his family no matter how much they assure him that it is him they love and not the politics of pressident. Meanwhile aka babo kalipe! He has even flown out of town to formulate his new cabinet.
What rubbish is this Ancient outmoded Old Ar.sew.hore Mvunga trying to say? The Old Ar.se has gone senile and is totally confused!!
No wonder the new constitution which the Old Ar.se authored is worthless and full of inconsistencies….in fact as confused as the senile Old Madala. Please retire Old mother fuc.k.er Mvunga.
We have quality brains like Robert Simeza, Prof Ndulo, Prof Hansungule, Vincent Malambo, Mushipe, etc who can construct a sensible constitution NOT the mess which Old Mvunga left. The PF confusion doesn’t end with Lungu but spreads to their Legal advisors like Old Mvunga!! May God help us!!
Some people speak on everything even when they don’t know, leave it to credible lawyers like John Sangwa and others not this old mvunga who has resurrected when he has been paid, where was he when the young intelligent attorney general interpreted all the contents regarding the same argument. just shut your mouths you PF cadres and your compromised lawyers.
My understanding; Under Article 103, the Constitution envisages that any of the two candidates can file a petition. Remember that before the inauguration or swearing into office, Lungu can be both President-elect as declared by the chairman of the electrol commission under Article 101 and incumbent. HH can only be a President-elect before the inauguration. Article 104(3) then refers back to the Petition under Article 103, i.e. to say that where the President-elect is also the incumbent (who can only be Lungu in this circumstance), the speaker will assume the executive functions while the case is before the court. Incumbent is the one who has held the political office being contested.
At the moment HH is not a President-elect. Lungu is, as declared by the returning officer. But since there is now a petition, Lungu cannot be declared President yet. He is thus the incumbent and President-elect. Under Article 104(3), the Speaker assumes executive functions where the petition under Article 103 is against the President who is both President-elect and incumbent. HH would be President-elect if he had been declared as such, but would not be the incumbent if Lungu decided to petition the declaration. I can only imagine that the idea of having the speaker stand in was to avoid the incumbent (who already has the state machinery at his/her disposal from simply going ahead with his inauguration and exercising executive powers with impunity)
shame is yet to cover HH’s face. wait you see! for BBM is smiling Deity is yet to come what ever insult you say he is the leader
what a president who can insight his people to rise against other tribes? does he have respect of the majority who voted against.If he is humble he must have given respect the majority. let the court make the mistake by asking for the re-run we will kick the hell out of you since you have shown the country that you tribe do not respect other tribes. If zambia is the tree provinces,then you will become the president.
Lawyers are responsible for our constitution but it looks like they deliberately write a confusing one so that they can later start arguing over it while counting how much their clients are paying. Why isn’t anything straightforward in law?
‘Peace for Zambia’,
Your submission is spot on. Professor Mvunga’s post is purely professional and categorical and thus one would expect bloggers to argue for and/or against in respect of the said Constitution and the UPND Petition thereof. The age and/or how old Prof is does not in any way make irrational his legal opinion.
In conclusion to my posts above, Professor Mvunga is wrong. The law states that the incumbent President-elect must step aside for the Speaker in the exercise of executive powers during the petition consideration. The Constitutional clauses can indeed be confusing to the uninstructed and those who profess to be lawyers but do not read. Read my interpretation above.
Who is the Speaker speaking to now. No members of the National assembly
But iwe Tutu uli cipuba zoona
Have respect for elders. You all have the liberty to use all words in the dictionary but mind the arrangement, it might cost you.
I think Prof Mvunga should be ashamed of himself. We all know that he is Lungu’s cousin who also happens to have hired his young brother as the Deputy Minister if Finance. Instead of trying to confuse Zambians. he should just shut the god da.mn f*ck up and cozy up in those small jackets of his that would hardly fit Chiluba’s frame.
CONCLUSION –
AFTER LOSING AND NOW HOPELESS
SHALLOW INTELLECTUALS NOW
BELIEVE AND HOPELESSLY PRAY
THAT THE COUNTRY WILL FAIL
SO THAT THEIR PREDICTION CAN
COME TRUE
CON COURT RULING HAS THROWN OUT
WITNESSES AFFIDAVITS JUST LIKE
SOME OF U.S. SAID –
THIS IS A SHALLOW AND STUIPID PETITION
Pompi and B R Mumba, Sr,
Thanks for your comments.. that was educative . I wish we have more like you two
Article 101 deals with the election of the president. The problem is what appears to be a typo error in clause (4).
Under article 101 clause (2), if a candidate gets over 50% on election day, he is declared president-elect and that is the end of the election. There is no first and second round or run-off in this case, there is just an election. If someone wants to petition this result, they must go to article 103 which deals with petitions against a PRESIDENT-ELECT.
If no candidate gets more than 50% then clauses (3) to (8) of article 101 come into play for a 2nd ballot. All these clauses talk about candidates, not president-elect, until clause (8) when someone is declared president-elect in the 2nd ballot. Clauses (4) to (7) allow a candidate to petition the initial ballot or first…
Article 101 deals with the election of the president. The problem is what appears to be a typo error in clause (4).
Under article 101 clause (2), if a candidate gets over 50% on Election Day, he is DECLARED PRESIDENT-ELECT and that is the end of the election. There is no first and second round/ballot, no run-off . If someone wants to petition this result, they must go to article 103 which deals with petitions against a PRESIDENT-ELECT. This is the situation in Zambia today.
If no candidate gets more than 50% then clauses (3) to (8) of article 101 come into play for a 2nd ballot. This is NOT the situation today. This is when there is NO winner on Election Day under clause (2) then we go to clause (3) for a run-off or 2nd ballot. The problem is the amended constitution clause (4) states…
The problem is clause (4) “A person may within seven days of the DECLARATION MADE UNDER CLAUSE (2), petition the Constitutional Court to nullify the election of a presidential CANDIDATE WHO TOOK PART IN THE INITIAL BALLOT. BUT CLAUSE (4) SHOULD REFER TO CLAUSE (3). See the Technical Committee draft published in October 2014 “(4) A person may within seven days of the DECLARATION MADE UNDER CLAUSE (3), petition the Constitutional Court…”. This means when there is NO winner on Election Day under clause (2) then we go to clause (3) for a 2nd ballot. Clause (4) allows the CANDIDATES from the initial ballot to petition a CANDIDATE before the second ballot. In summary article 101 provides for the election of a president which ENDS WHEN A CANDIDATE IS DECLARED PRESIDENT-ELECT either under…