President Lungu greets UPND president Hakainde Hichilema during the memorial service of the Late President Michael Chilufya Sata at St Ignatius Catholic Church in Lusaka
FILE: President Lungu greets UPND president Hakainde Hichilema during the memorial service of the Late President Michael Chilufya Sata at St Ignatius Catholic Church in Lusaka
The tug of war between Mr. Hakainde Hichilema and President Lungu reminds one of primary school days. At Matanda Primary School, we used hands instead of a rope – the two kids in front held each other’s hands, while we pulled in opposite directions. If the kids in front let go, both sides went tumbling down—adding to the excitement.
Some people have condemned HH for petitioning the results, but I believe he must be applauded—it is the first time in African politics when a defeated candidate has halted the inauguration of the declared winner. HH may call Lungu “a dictator,” but President Lungu’s has shown respect for the law by giving the Constitutional Court time to hear the petition. If Lungu losses or wins, he will go in history as the first democratically re-elected sitting President in Africa to halt his inauguration due to a legal challenge—making Zambia the light of democracy in Africa.
Those who have lived long enough know how Zambian courts have ruled on presidential election matters. In 1996, Chiluba barred Kaunda from contesting the elections on the premise that his parents were not “Zambian by birth and descent.” Whereas Chiluba’s parentage was challenged in court, it is Kaunda who was declared stateless by our courts. In 2011, the Patriotic Front used the parentage clause against then President Rupiah Banda. Banda was born in Southern Rhodesia (Zimbabwe) from a Zimbabwean mother. However, the court ruled that it “will be against natural justice” to stop him from contesting the 2011 Elections. That ruling was not based on the constitution, but on the judge’s definition of justice. If the selective interpretation of the national constitution is something to follow, HH may not win this case – something that would present him as a ‘cry baby’ beaten three times; twice on the ballot, and then in the Constitutional Court! HH’s party has promised to accept the ruling, but Lungu’s victory will give PF political capital to demean HH and the UPND. Sadly, PF and UPND cadres will fight, and some will die regardless of who wins.
That said, HH has given us an opportunity to see many loopholes in our Constitution. For the PF, the UPND and the Law Association of Zambia to start arguing on the interpretation of the Constitution which was passed a few months ago is utterly imprudent.
HH’s tug of war with President Lungu on handing over power to the Speaker of the National Assembly is due to the confusing nature of our Constitution. The fact that nobody knows when the Speaker should take over; under which article is the petition to be filed; what is meant by filling and hearing the petition within 14 days; when to start counting the days; and what happens after the expiry of 14 days, simply shows the limitations of our Constitution. Besides, resolving constitutional matters can take months and even years – especially in cases where many stakeholders are involved. HH, Lungu, the PF, the UPND, and the Election Commission are parties to this suit. If the petition against a Member of Parliament takes months—how can the presidential petition conclude within 14 days? It is one thing to say ECZ, the PF and Lungu conspired to rig the elections—but it is another to show beyond reasonable doubt how and when that was done. To do justice to all players involved, some people have to testify—something that can prolong the process.
Consequentially, the Constitution identifies the Speaker of the National Assembly as the right person to perform executive duties in the case of the petition. But this provision is highly illogical. The Speakership is an elected office – Article 82.1 reads, “The Members of Parliament shall elect, by secret ballot, a Speaker of the National Assembly ….”  But after the dissolution of Parliament and by extension the National Assembly, Article 72(1) awkwardly retains “the Speaker and the First Deputy Speaker;” thus we have the Speaker without the National Assembly. Depending on how one reads the Constitution, this is the person who should act as President but without power to “(a) make an appointment; or (b) dissolve the National Assembly.” How can the Speaker dissolve that which does not exist—is this another constitutional oxymoron? This clause would have made sense if Zambia scheduled parliamentary elections a year or months before the Presidential elections—which can be rectified by either cutting or extending the life of Parliament. In is case,  the Speaker of the active National Assembly can perform executive duties in case of electoral disputes. As it stands, however, this clause seems tailored to when the president dies in office, and a by-election is held. Today, however, it does not make sense since we have running mates.
Another oxymoron is that the Constitution is not even clear when the term of the Speaker of the National Assembly ends. One assumes that it ends after the election of a new Speaker at the first sitting of Parliament. Unless the Speaker is not interested in regaining his or her position, to hold an election over which the sitting Speaker presides is like asking the sitting President to chair her or his election. In short, our Constitution is problematic—unless these problems are resolved, we will end up with a constitutional tug of war each election circle.
Finally, Zambian politics is unpredictable; so who will win remains a puzzle. A very slight chance of HH winning exists, but it is on him and his party to prove beyond reasonable doubt that Mr. Lungu conspired with the Electoral Commission of Zambia (ECZ) to rig the elections. Regardless, only one person will win this case. I pray that the PF and UPND leadership will put mother Zambia first before their egos by controlling their victorious or disappointed cadres after the ruling.

May God bless mother Zambia and give

wisdom to HH and Lungu.

Rev.  Kapya Kaoma 
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35 COMMENTS

    • I’m surprised the author wants to give credit to Lungu for following the law and letting the courts decide the petition instead of illegally inaugurating himself. What is honourable about following the law? In fact rumours have it that the real reason is that the Chief Justice and her Deputy refused to break the law by installing Lungu as President last week. Lungu has disregarded the law enough times to be charged with treason. Enough is enough.

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  1. Well said Rev. Kapya Kaoma!

    This just goes to show how badly the current Consititution was drafted, and how inappropriate it was to rush it through Parliament for political expediency just so that PF can “sonta” that they have delivered on their 90 day promise!

    And, the biggest absurdity is that Lungu the “lawyer” signed it!

    Your positive suggestions are welcomed. Elections for MPs and Presidential should be separated, as with Congress in the US. This will provide an invaluable barometer of the party in Governments performance midway in the term of office.

    No wonder the referendum did not pass. It should never have been held simultaneously. One wonders why this PF government even entertained the idea in the face of so much opposition, unless it was to cause confusion with…

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  2. THIS IS NOT A TUG OF WAR BETWEEN ECL AND HH. THIS IS A TUG OF WAR BETWEEN HH AND THE PEOPLE OF ZAMBIA. HH AND UPND HAVE NEVER BEEN INTERESTED IN THE DEVELOPMENT OF ZAMBIA AS LONG AS IT IS NOT HIM IN PLOT 1. ELECTIONS HAVE BEEN CONDUCTED AND IN ANY ELECTIONS THERE’S ONLY ONE WINNER. PEOPLE CHOSE ECL AND REJECTED HH AND UPND WITH OTHER 8 POLITICAL PARTIES. OTHER POLITICAL PARTIES HAVE DIRECTLY/INDIRECTLY, ACCEPTED DEFEAT. IT IS ONLY HH AND UPND WHO EVEN BEFORE THE ELECTIONS SAID AS LONG AS IT WON’T BE HH AND UPND WINNING AUGUST 2016 ELECTIONS THEY WILL NEVER ACCEPT THE RESULTS. TRULY, THEY HAVE LIVED TO THEIR PROMISE OF NEVER ACCEPTING THE RESULTS. SO, THIS IS NOT A TUG OF WAR BETWEEN ECL AND HH BUT BETWEEN HH AND THE ZAMBIAN CITIZENS.

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    • Read the article and try and understand it if you can. You obviously never got past the headline.

      And take your prejudices and rants and stick them where the fit best.

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    • Bimbo you seem to be frustrated each moment the argument is not in your favour, take it easy. These are just opinions to which everyone is entitled and I do agree with Peter that HH is fighting the will of the people, period.

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  3. When the Bill was presented before parliament HHs members of parliament led by the graduate in secondary school teaching Nkombo went to parliament motel to booze forgetting the people who elected them to afford them the luxuries they swam in…not even pointers by Miyanda the retired general on what was flawed could move the lot, in the end? We have had a near vacuum…a point of correction Revd. The Speaker assumes executive function if a re-run is order under 103, under 101 which is the current petition ‘the incumbent’ continues. But I agree it is a badly written clause and needs to be sent back to the drawing board for panel beating….

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  4. Yes raises important issues, although the writer appears to lean in favour towards Lungu’s corner.

    First about the Speaker, the Speaker in Zambia has always served longer and beyond the life of Parliament so without any modifications in the new constitution as to his tenure, the status quo remains. It’s a little odd but that’s who it has always been. I recall Speaker Amusaa Mwanambwana serving for almost as long as MMD was in power. It seems in Zambia the Speaker has always been partisan, tied to the party in power… a little odd but that’s who it has always been.

    So yes Lungu should handed over power to the current Speaker Matibiti.

    As for the ‘beyond reasonable doubt’ argument, is this is a criminal case or a civil case? I tend to think it’s criminal cases that requires…

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  5. continued…
    As for the ‘beyond reasonable doubt’ argument, is this is a criminal case or a civil case? I tend to think it’s criminal cases that requires the ‘beyond reasonable doubt’ test. For me any amount of proven evidence of electoral malpractice, no matter how ‘small’ must overturn the elections of Lungu.

    And I don’t understand why this case didn’t start in the High Court or Supreme Court before moving to the ConCourt. Has the ConCourt rendered the High and Supreme courts irrelevant now? Unless Constitutional matters are at stake such as human rights issues or a constitutional clarification is needed, cases shouldn’t be fast forwarded straight to the ConCourt. If the Constitution stipulates that all Presidential Petitions must he heard by the ConCourt then…

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    • Improve on your writing skills and then read the amended constitution boss. It is all-over the internet. Otherwise you risk continuing exposing your ignorance by contributing to expertly written discourses like this one from without.

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  6. continued…
    If the Constitution stipulates that all Presidential Petitions must he heard by the ConCourt then this constitution is almost useless.

    I think we should just taken the constitutions of mature democracies such as S/Africa or USA and just did a ‘find and replace’ their country’s names with ours. I say so because this haphazardly document appears to have been half-baked and rushed, perhaps all with the aim of satisfying selfish desires and fixing up perceived opponents. That’s why we are in this mess situation.

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    • Good observation my man, keep it up, for a long time now in Zambia,I haven’t seen such maturity in the way we argue out when we have different Opinions, I am humbled.

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  7. Well written indeed…ECL has failed to show leadership…there has been more rigging and people killed than any other election before…..His gone to Mufuwe to relax knowing his boys will do everything to make sure the petition falls on their side…He has a lot to lose…people his promised jobs and people to cut off completely like Kambwinli out of Cabinet to prove a point….His win was/is narrow…ECZ was not at its best to run the elections, one wonders why..PROMISARY NOTE I guess

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  8. Who is to blame for the ambiguity in the constitution?I remember there were indabas which were called to help contribute to the contents of the constitution. Then came the technical committee to streamline the contributions into a package called draft constitution and eventually it passed through parliament where both UPND and PF MPs were present.

    If my memory serves me well, i never heard any MP raise the issue of ambiguity in the constitution. To me the blame fall on two groups-(i) those who were tasked to prepare a draft constitution and (ii)those who passed it in parliament.
    It is time our law makers became more serious with their responsibilities as the amended constitution has exposed them of being unprepared for the task of enacting laws of the land.

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  9. @bemba bimbo thank you for insisting that I read first, it has paid. Just looking at the name “karma” had me thinking that it’s just about tribe. Nevertheless it still is about tribe and power. Lungu made this constitution so that he confuses us about what the law is really saying. “The LED “SOUTHERNERS” should acknowledge what the RULERS “NORTHERNERS” have decided. But the RULERS should also account for what comes after a tribal victory.

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  10. The Speaker is a Member of the National Assembly just like any other MP……………so when the House Close he/she too should not be speakers and so on…………………..kindly shade more light

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  11. Thus y you are Desmond *****, us people who voted for upnd we are not zambians or are not considered humans, I know you are addicted to poverty so don’t let innocent sauls suffer coz of your shalow minded.

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  12. HH HAS TAUGHT US A HARD LESSON, TOO HARD TO FORGET

    I have been writing and like UPND Generals, advising on the need to replace HH, until this petition mess. People thought I was confused PF chap, stupid and all sorts of names. I would wonder a leader telling his flock a year before elections that he has already won; and he is called an Economist. This man is a real uncouth fellow. I am not surprised the entire UPND other than his “PF migrants” are talking after such a humiliating defeat. The Party was made to live in “imaginary ivory towers” that it was automatically forming Government, in 2015 and also in 2016. What a fuss! Technical and Political advisers all so disappointingly cold. I have never felt pain like this. HH should be the last man to trust. BB

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  13. The law, any law, is subject to interpretation by the courts. The Legislature makes laws. The Judiciary interprets them. That’s how it is done. It’s usually the interpretation that the courts give to a particular piece of legislature that becomes the meaning of that law. Hence the idea of precedence. In this particular case, the Constitutional Court must have to be seen as the interpreter of Zambia’s New Constitution. It would be an element of incompetence for the court to fail to interpret a particular aspect of the law just because of vagueness. Courts look at the intent of the law – what did the lawmakers have in mind? What is it the law intends to accomplish? It’s the duty of the courts to fill-in the blanks, and define or interpret the law. That’s their duty as courts; their…

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  14. It goes without saying that this is a landmark case. It calls for the brightest of brains to interpret the law; and interpret it correctly. Why is that so? Well, simply because this case will, in similar future electoral disputes, act as an anchor. Courts rarely enjoy the luxury of double standards.

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  15. Well and good points Dear. Miyanda warned Lungu not to sign this same Constitution, he foresaw these issues. There is no way Parliamentary Petition takes three Months to be Concluded and Presidential to take 14 days. useless. The same Law talks of the speaker to act when the Petition is filed but the same Lungu refused to do Like wise. Which is a Case as per say and this can lead to the President to be Impeached in Parliament. Hope the Court will Pass a Fair Verdict today.

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  16. these are words from a real pastor not those so called religious cadres.Learn from him and help our country move forward.

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  17. Great , balanced and to the point article. Thanks.
    Yes the constitution is just so confusing and we blame the Technical committee, PF and UPND as they were just interested in cashing in during the process of brain storming for the constitution. They all are sell out who have no heart for Zambia. All are thieves who cared only for their stomachs. Am really pissed off …shame on them.

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