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”
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.