President Lungu eligibility to contest 2021 elections – response to SUNDAY CHANDA

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President Edgar Lungu at Mulungushi Conference Centre
President Edgar Lungu at Mulungushi Conference Centre

By Isaac Mwanza

Let me put in on record that I am one person who would have loved for President Lungu to contest the 2021 elections but this is a matter of not wanting but it’s a matter of the law – the Supreme law of the land and in as far as examining what law says, President Lungu has held office twice as President of the Republic of Zambia. By the operation of Article 106 clause 3, he is not eligible to hold office for the third time.

My good comrade Sunday Chilufya Chanda, whom I dearly respect, has challenged us to address the issue of article 106 clause 6 (b) of the Constitution of Zambia which reads as follows:

“106 (6)(b) If the Vice-President assumes the office of President, in accordance with clause (5)(a), or a person is elected to the office of President as a result of an election held in accordance with clause 5(b), the Vice-President or the President-elect shall serve for the unexpired term of office and be deemed, for the purposes of clause (3), not to have served a term of office as President if, at the date on which the President assumed office, less than three years remain before the date of the next general election.”

First, those who bother to read and rely on this provision must fix their minds to the opening words:

“If the Vice-President assumes the office of President, in accordance with clause (5)(a), or a person is elected to the office of President as a result of an election held in accordance with clause 5(b),…”

I don’t know how the latter provision of “…not to have served a term of office as President if, at the date on which the President assumed office, less than three years remain before the date of the next general election” can be read in isolation from the person having either been (1) “the Vice President” or (2) “a person is elected to the office of President as a result of an election held in accordance with clause 5(b)”

No doubt, even Sunday Chanda agrees that President Lungu was not the the Vice President when he was inaugurated as the Sixth President of Zambia on 25th January 2015. Neither was President Lungu “a person elected to the office of President as a result of an election held in accordance with clause 5(b)”.

You may want to know what kind of “a person is elected to the office of President as a result of an election held in accordance with clause 5(b)”, the same article 106 clause (5)(b) answers:

“(5)(b) When a vacancy occurs in the office of President, except under Article 81, if the Vice-President is unable for a reason to assume the office of President, the Speaker shall perform the executive functions,…and a presidential election shall be held within sixty days after the occurrence of the vacancy.”

Was President Lungu Lungu a person elected because a vacancy had occurred in the office of President and the Vice-President was unable, for a reason, to assume the office of President, the Speaker performed the executive functions and a presidential election held within sixty days where he was elected?

I leave these two thoughts to those who desire to put the law first to answer.

Second, you you may ask, why does Article 106 say ” for the purposes of clause (3)” or why should clause 6 refer to clause 3?

Article 106 Clause 3 states as follows:

“(3) A person who has twice held office as President is not eligible for election as President.”

This simply means, the Vice President who assumed office of the President because of circumstances in Article 106 (5)(a) or person elected under circumstances obtaining in clauses (5)(b) will be gauged whether they could be deemed to have served a period that is equivalent to “holding office” for the time fixed by Article 106 (6)(b). As stated, President Lungu is neither that former Vice President-turned-President nor the person elected under clause (5)(b).

For the benefit of the readers, President Lungu has held the office twice as President of Zambia under the same 1991 Constitution of Zambia which is currently currently in force, though with amendments done in 2016.

When the President signed two Acts on January 5, 2016, he also signed Section 7 (1) which allowed him to serve his “unexpired term”. Section 7 (1) of ofthe Constitution of Zambia (Amendment) Act reads:

“7. (1) The President shall continue to serve as President for the unexpired term of that office as specified by the Constitution in accordance with the Constitution.”

How are you supposed to read these amendments? Section 16 of the Interpretation and General Provisions Act (first enacted on 24th October 1964) No. 13 of 1994, Chapter 2 of the Laws of Zambia, reads as follows:

“16. Where one written law amends another written law, the amending written law shall, so far as it is consistent with the tenor thereof, be construed as one with the amended written law.”

The intention of the legislature was not to make Constitution of of Zambia (Amendment) Act No. 2 to to be to be read in isolation for Section 1 of Act No 2 reads as follows:

“This Act may be cited as the Constitution of Zambia (Amendment) Act, 2016, and shall be read as one with the Constitution of Zambia, in this Act referred to as the Constitution”

Conclusion

I am one person who would have loved to stand again in 20 21 but I would want to be that child who had the courage to tell tell the Emperor he was naked than behave like those adults who kept telling the Emperor his “new” clothes looked elegant even when they knew he was naked.

President Lungu would have been eligible to contest the 2021 elections, in accordance with Article 106 (6)(b), as read together with Article 106 (5)(a) and (b), if at a time of his first election in January 2015, he was either the Vice President or the persons elected because the Vice President was unable to act as President when Micheal Sata had died and the Speaker had taken over to supervise the elections where he was elected.

There are three options that would make President Lungu to contest the 2021 elections.

The first option is when Parliament amends the current Constitution to ensure that Article 106 (6)(b) also becomes applicable to President Lungu. We all must remember that President Lungu found that provisions already in the draft Constitution and, at the time it’s was passed as it is, it’s cure was not about his election or serving 1 year 7 months. It had to do with the Vice President who takes over the running of government or, due to failure by Vice President, another person is elected.

The second option is where Parliament repeals the entire Constitution and Zambia enacts a new Constitution (not just amendments). This is what Mugabe did but we know that with Mugabe, it’s survival of the fittest. He cannot afford to lose power because his “enemies” will see him at the Hague, lol. President Lungu has no such fears. Also, repealing the Constitution means we must also hold another referendum on the Bill of Rights. That is the only process that completes the process of coming up with a new Constitution where everything starts afresh, including is term.

The Third Option is when the matter is taken to the Constitutional Court and the Judges, on the path of pleasing the PF, rule that Article 106 (6)(b) is very much applicable to President Lungu (when it is not) thereby clearing his path to contest in 2021. Looking at the men and women on that Constitutional Court bench, everything is possible. The Judiciary is so highly intimidated, at this point, that they would sacrifice justice at the alter of political expediency. We are yet to see.

33 COMMENTS

  1. +11
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    Mwanza, why do you sound apologetic? There’s absolutely no need for you to state in your preamble that you’d have loved President Lungu to contest elections in 2021. No need. Just explain the law. Period. Your explanation makes a bit of sense to me

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      You are wrong iwe Mwanza. How i detest people who writes long articles thinking they know what they are talking about when in the actual sense they dont. Take a seat!

    • +8
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      There you go again trying to argue and counter-argue with the constitution you decided to amend with stolen or borrowed clauses.
      He (the president) claims he is eligible and I believe him; you are also claiming that he is not eligible and I kind’a believe you. I am confused now, I am not a lawyer and I don’t want to read these sub-clauses baked and smeared with referenced jargon. Whoops! I hate constitutional reference toss ups! I easily lose track of the current clause even before I go to a referenced one. In short I hate law. Not in any way making the case that I am lawless. Hey! Brother Concourt guys you have some work here! Eligible are not? At this point I invite Haisha’s surrogate Gen. Miyanda to the podium! I am waiting?

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      I cant believe our new constitution still has these many theories. As it is now, anyone’s interpretation is correct according to his level of understanding law.

    • +1
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      Looking at the way the country is going EL will be luck even to finish his current term, I see an uprising within PF and PF thugs who have not been given what they where promised. Watch this space, Zambians can raise up when need arise, Remember the riots in Kaunda era, People are not happy but they are just waiting for that spark to start the fire.

    • +3
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      By saying, ‘The Judiciary is so highly intimidated, at this point, that they would sacrifice justice at the altar of political expediency. We are yet to see,’ are you not also intimidating the Judiciary?

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      Academic exercise for those interested in law! Stop trying to decipher the jargon for those of us who find it boring! Bottom line is how you judge whoever contests the next presidential elections as for me this Lungu is a non starter in my considerations I just wish a 40 through 45 years contestant were to surface!

  2. +2
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    He will finish all the monies in the treasury and the Jamesons if you vote for him again in 2021…lol

  3. +1
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    WELL ANALYZED. THOSE CALLING FOR A LUNGU 2021 CAN HAVE NO REBUTTAL TO THIS ARGUMENT. KWASILA, THATS OVER FINNISH!!!!!!

  4. +1
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    ED2.0 didn’t think through his master plan. He could have buddied up with Guy, amended constitution so he served out the term and raised the good will, sat waiting on the wings as Veep then made his covert move and looked like the star child.

    Instead he went with bulldozer at the panga voting Rock, inflamed a faux tribal narrative, cozied up with RB and drank and danced while Rome burned. Enjoy the ride. That job comes with responsibilities you still seem clueless about while waging wars to stay up top and fatten the belly.

    What a way to live. Constantly wanting to be king at any cost. Hope the constitution bites in the proverbial behind coz Jameson won’t be able to drown the reality that the country is back sliding on your watch.

  5. 0
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    Zambians are fools & very tribal.
    You will be surprised that Lungu bounces back in 2021.
    LsK, Central, & CB has a high percentage of fools who will undoubtedly vote for Lungu & PF.

  6. +1
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    Please do n’t bother us with those law languages or expressions or what ever you call it,explain in simplicity what that means.We are laymen to this colonial writings.Even science writings have changed for the better!!!!!

  7. vote

    Can some one explain this to me “A president will only serve 2 full 5 year terms “. Kindly shed more light.

  8. vote

    We need more of young brilliant men like this Mwanza. Where is LAZ, UPND, FDD which stopped FTJ Third Term? Lungu doesn’t qualify for Third Term

  9. +3
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    This country is a mess. I am happy I don’t belong to any political party. People in rural areas are having one meal a day meanwhile people in Lusaka are discussing 2021. You were elected to serve the people, can you please stop this nonsensical discussion. This is sickening to say the least, focus on work or atleast pretend you are working

  10. vote

    Mr Mwanza why have you omitted “two (2) full five (5) year terms? Please explain what this means.

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      @magaba is it you’re referring to? Why should you answer when the question is for Mwanza?

  11. +1
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    President Lungu cant run. Wont support his 2021 bid. Two terms have been served and thats it. Another person should be groomed in PF.

  12. +1
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    This dunder head doesn’t realise that in the case of lungu you need to read the old constitution and the new one together. The issue of lungus eligibility is simple and straightforward. He did not complete a term of more than 3 years.

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      @Matebela, Sorry but you forget the precondition is that One must have saved as Vice President or in case of failure for the Vice President to do so, and the Speaker Acts, then Another Person is elected. Having been elected under the Speaker’s reign, then that person becomes eligible to stand. Remember, He must have been elected while the speaker performed executive functions, the thing that ECL was misled about by AC and/his consultants. I would love to hear the LAZ opinion on the matter.

  13. vote

    We need constitutional Lawyers and Judges to explain this law this year, by march. We cannot wait until 2021 for drama to begin afresh.

  14. +1
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    Sunday Chanda has turned into a boot licker for survival. Chali chikopo pa mukuba ku kitwe. No wonder he has turned politics as career. No plans

  15. 0
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    There some churches which only use specific parts of the Bible. For instance they don’t read Luke chapter 1 because it’s celebrated by the Catholic Church and this the Zambians read there consititution ….selectively. Levy out witted LAZ when he appointed Nevas Mumba. Mumba had just lost an election and therefore was not “eligible ” for nomination as MP but used a technicality ….He MAY NOT BE NOMINATED …..NOT HE CANNOT. ..case closed.

  16. +2
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    why talking about elections now? we just had elections a few months ago, not even a year and you are talking about 2021. even if he contest i dont think anyone would want to vote for him. ever since he came into power Zambia has been drowning. Zambia is not a kasido

  17. +1
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    I HEAR THERE IS A NEW SLOGAN FOR PF!!!
    ” COME KAMBWILI 21″!!!!
    “COME KAMBWILI 21”!!!!!
    IF THIS IS TRUE LUNGU IS IN TROUBLE. NO WAY HE WINS COPPER BELT AGAIN!!
    “COME KAMBWILI 21”

  18. +1
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    THEN WHY ARE WE LAUGHING AT BURUNDI, CONGO & ZIMBABWE? LOOKS LIKE IT’S THE SAME WINE IN DIFFERENT BOTTLES. UNIFYING THE COUNTRY IS A BIGGER TASK & WORDS OF UNITY SHOULD BE FOLLOWED BY ACTION. MY PERSONAL FEELING IS THAT THE PRESIDENT SHOULD HAVE KEPT QUIET ON THE MATTER UNTIL THEN. ASKING THOSE WHO ARE NOT HAPPY TO LEAVE PF ISN’T THE WAY TO GO. GIVE THE AGGRIEVED PART CHANCE TO BE HEARD. UNITY SHOULD START FROM PF ITSELF. START IN JERUSALEM BEFORE PROCEEDING INTO GALILEE. AKACILA KA MBUSHI KASENGWILA APO KEKELE

  19. +1
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    64 flag MunaDekhane January 6, 2017 at 1:21 pm

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    We told you that Lungu is a disciple of Mugabe and Mu7, there you have it for your selves.
    Lungu’s audacity statements are based on the weak judicial system in the country. The Con courts, LAZ and the judges in the nation are weak, bought out and divided. My profound concern of Zambia’s incapability to hold any credible elections is being vindicated. We have wasted so much time, efforts and resources to improve our democracy for nothing to show up. Its a disgrace to Zambia.

    Reply

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