President Lungu Qualifies for 2021 According to the Law

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Sunday Chanda
Sunday Chanda

PRESIDENT LUNGU CAN CONTEST 2021 ELECTIONS IF ZAMBIANS ASK HIM TO AND HE SO WISHES, HE’S ONLY SERVED ONE TERM AS PER THE LAWS OF ZAMBIA (A RESPONSE TO ISAAC MWANZA)

By Sunday Chanda 

Let me open my discussion by stating that His Excellency President Edgar Chagwa Lungu qualifies to contest the 2021 election under the current constitution. It will be up to the Zambian people to judge his works for between now and 2021 and his willingness to contest office, otherwise there is no law that bars him at all.

Let me mention from the onset that I have made reference to the 1996 amended constitution and in particular Article 35 of the 1996 amended Constitution not because I consider it necessary for the topic under discussion but on grounds that those purveying the position that His Excellency President Edgar Lungu does not qualify for 2021 have relied on it as the bedrock of their argument. For this simple reason, I shall refer to it once or twice as part of my submission.

Article 35 (2) of the 1996 Amended Constitution* provides as follows:

“Notwithstanding anything to the contrary contained in this Constitution or any other law a person who has twice been elected as President shall not be eligible for re-election to that office.”

Arising out of relying on a wrong piece of legislation, i.e., Article 35 (2) of the 1996 Amended Constitution, a misleading position has been put in the public domain that the August 11th 2016 election President Lungu’s second election and thus his last. This position is as misleading as it is legally flawed!

However, the gist of my submission is to emphasize that Article 106 (6) and 106 (3) of the 2016 amended Constitution are the relevant provisions on which the debate is premised. It is wrong diagnosis to rely on Article 35 of the 1996 amended Constitution for the topic under discussion! It would be misleading for anyone to completely ignore Article 106 (6) (a) and (b) of the Republican Constitution and I challenge colleagues on the other side of the argument to address this particular provision in their analysis. Clearly, if Article 106(3) was enough on its own, the constitution would not have provided for Article 106 (6) (a) and (b). Also, it is misleading to assume whether expressly or impliedly that the provision’s of Article 106(6) (a) and (b) are not in vain or of no effect.

Let me further caution that Article 106 (3) should not be read in isolation but in line with other relevant provisions such as those that define what constitutes a presidential term.

The 2016 Amended Constitution in Article 106 (3) provides as follows:

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

Further, Article 106 (6) of the 2016 Amended Constitution provides that:

“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)—

(a) to have served a full term as President if, at the date on which the President assumed office, at least three years remain before the date of the next general election; or

(b) 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.”

Article 106 (6) clearly makes cross reference to Article 106 (3) when it states *”for the purposes of clause (3)….”* a full term should be at least 3 years.

In other words, Article 106 (6) qualifies Article 106 (3) by providing that for purposes of Article 106 (3), we need to consider how long a person has served as president before deeming him to have served a full term or not.

The 2016 Amended Constitution defines a term as *“ a period of five years commencing when the National Assembly first sits, after a general election, and ending when Parliament is dissolved”.* A term is maximum 5 years and minimum 3 years. Period! Any period served being less than 3 years is not a term! This is the law and there is no court that will define a term as being otherwise.

In *Ex Parte Maluzi and Another In Re: S v Electoral Commission ((2 of 2009) [2009] MWHC 8 (16 May 2009)*; The High Court of Malawi held that:

“…A term means being in office from the swearing in after the general and presidential elections to the swearing in after the next general and presidential elections…”

By these two references, the definition of a “term” under the 2016 amended Constitution and the Malawian case, it is clear that President Lungu is serving his first term following a general election. Put simply, the 2016 Amended Constitution cured a defect which had existed by virtue of Article 35 (2) of the 1996 amended constitution. Clearly the words *”twice been elected”* under the 1996 and 2016 Amendments respectively meant *”two consecutive terms”.*

The literal construction therefore of *”twice been elected”* (to insinuate eighteen (18) months and five (5) years in this case ) would indeed be absurdity and operate unfairly against a person who assumed the office of President following a *”Presidential by-election”* when the incumbent’s term was nearing expiration as was the case with President Lungu succeeding the late President Sata.

In 2015, he was elected under the 1996 constitution and fortunately Article 35 doesn’t come in because he was elected once under that regime.

Under 2016, he has also been elected once and this is the current law that applies to his Presidency and not the 1996 law. The 1996 provision cannot survive the 2016 amendment! Lets agree that Constitutional provisions must be given broader and inclusive interpretation and as such, when Article 106(6)b says “or a person is elected to the office of President as a result of an election held in accordance with clause 5b”…this caters for ECL because 106(5)b talks about “…a presidential election bring held within…days of the occurrence of the vacancy”

Adopting the broader interpretation will lead to an inescapable position that ECL was elected in a presidential election following a vacancy.

We cannot at this stage resort to the 1996 constitutional provision because it was repealed and it is no longer law as of today. The answer should therefore be found in the current constitution, and the guidance of this constitution is that the person serving as president for less than 3 years cannot be said to have served a term.

If we refuse to bring the 2015 election within Article 106(5), then we impliedly are saying that the 2015 election is not recognised and as such ECL has only been elected once going by the current constitution.
Let me submit that the January 2015 election under which President Lungu was first elected is mutatis mutandis an election under art 106(5) (b) of the constitution

In conclusion, let me invite commentators on this important topic to correctly apply themselves to Articles 106 (6) and 106 (3). As demonstrated above, if Article 106(6) expressly qualifies Article 106(3), can we really say Article 106(6) should be ignored? It is clear that once people remove their political biases, they will agree that indeed President Lungu qualifies to stand in 2021 if he so wishes. It’s naive for anyone to assert that if and when President Lungu decides to stand in 2021 then it would be tantamount to attempting a third-term of office. To put it straight, he qualifies! To the cynics, the doors to the Courtroom are open and they can seek Judicial interpretation on this matter.

Between now and 2021, President Lungu’s focus should be to deliver development to all parts of Zambia and ensure the creation of a better life for all Zambians. No law will stop him when the time comes!

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Disclaimer: The views and thoughts expressed in this article do not in any way represent those of the party I belong to, PF or the President I support, President Lungu. They are my very personal views intended to contribute to what I have considered an important debate).

37 COMMENTS

  1. +7
    -6
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    This argument is not valid. President Lungu has been elected twice and is therefore constrained by the two term limit.

    • +5
      -3
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      Study the argument, then comment. Let learned lawyers in constitutional matters enlighten we the common men and women of the LT sphere.

      Viva President Nawakwi.

    • +6
      -1
      vote

      To hell with this silly buffonery and excuse of a government. The pf hooligans have not achieved a single thing and yet they are already thinking about how they can prolong their jobs and fatten their already obese bellies. It is very disgusting behaviour. If it is not news about lungu’s travelling, then it is just mere cheap propaganda. Lungu this lungu that. And what is even further disapponting is that Lusaka times seems to be promoting this propaganda. Just now go and take a look at tthis website and count how many news items are showing about lungu vs anything on any other opposition leader. Are you telling me that it is only that foooking failure lungu that gets up to anything? even when he uses toilet you will report on that. Lusaka times has even failed to announce best blogger…

    • +13
      -1
      vote

      Country yafipuba, With all the problems you have as a country you are debating who can and who can not stand in 2021, No wonder the country looks like it been through a war and poor.

    • +1
      0
      vote

      Kindly allow AG and Concourt to put a stop to this public opinionated rants! AG kindly come out and quench the fire. This talk is both necessary and unnecessary on account of the time we having to learn about our constitution. I am not blaming any camps here but the president just got his fresh mandate.
      To ECL, you have a lot of work ahead of you at your hands. Kindly go to ZNBC and check on the campaign promises you were making. You made people get to learn of various promises and I am eagerly waiting for you to get down to work. I possess a SWING VOTE and in my skepticism shrouded with uncertainty my vote swung in your favor. DO NOT disappoint me. 6Years of presidency may not be a bad idea. Learn form Madiba!

  2. +3
    -2
    vote

    This is a very well sort out topic. Let us all read and comment with logic. This goes to the PF and UPND mouth pieces on Lusaka Times that comment with emotion and lack of research. Happy New year, 2017 Viva logic, Abash hooliganism.

  3. +2
    -6
    vote

    As usual the UPND shall send half baked crooked lawyers ( Ones that want to siphon money from GBM and HH at any cost ) to debate this and lose at the expense of the nation. Anyone with a rational mind knows that we need constitutional lawyers and judges to interpret the law withstanding. As it is due to president Lungu serving less than three years when MC Sata died, he is eligible to contest the 2021 elections. That is my layman take on this issue until General Miyanda or professor Mvunga provide me with compelling abstracts and rationale.

    • +11
      -1
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      @Nzelu: Mr Sunday Chanda is responding to Mr Mwanza, the FDD spokesperson, why are you involving UPND in this debate? To you anyone against PF is UPND, you forget that Zambia has over 15 million people, most of them neither support PF nor UPND. Whether ECL is eligible or not, how does that improve the welfare of the many Zambians leaving in abject poverty?

  4. +2
    -1
    vote

    To delve in matters of the law when one has inept depth of understanding is dangerous. RB is eligible but not our dear current president. Please let us not try to justify illegality or legitimatize the illegal this a recipe for disaster…..when in 1999 we begged to introduce terms to the office we wanted to rid ourselves of the wamuyaya let us not have a kagame or a museveni under the guise of a constitutional provision…

  5. +3
    0
    vote

    This is 2017 and we are already debating whether ECL is eligible to contest the 2021 elections barely 4 months after the 2016 elections! This shows lack of seriousness in the way we are governing the country. ECL has been given five (5) years mandate, deliver on the promises made to the people of Zambia, why waste time trying to justify whether ECL is eligible or not? We want to see development in all sectors affecting the Zambian people not cheap non important debates. Time to debate this issue will come in 2020/21 and the legal professionals will advise.

  6. +1
    -2
    vote

    To hell with this silly buffonery and excuse of a government. The pf hooligans have not achieved a single thing and yet they are already thinking about how they can prolong their jobs and fatten their already obese bellies. It is very disgusting behaviour. If it is not news about lungu’s travelling, then it is just mere cheap propaganda. Lungu this lungu that. And what is even further disapponting is that Lusaka times seems to be promoting this propaganda. Just now go and take a look at tthis website and count how many news items are showing about lungu vs anything on any other opposition leader. Are you telling me that it is only that foooking failure lungu that gets up to anything? even when he uses toilet you will report on that. Lusaka times has even failed to announce best blogger…

    • +2
      0
      vote

      Dont ans by throwing punches in the air. In the article the writer has quoted the constitution and has tried to interpret the statutes according to his understanding and he is very elaborate. You also show us your substance by quoting the constitution and interpreting it instead of just mentioning Lungu in your rebut.

  7. +2
    -1
    vote

    NO LUNGU DOES NOT QUALIFY FOR 2021 THAT’S OVER FINNISH!!!! WHY IS THE PF TRYING TO IMPOSE LUNGU ON THE NATION?
    NO MORE LUNGU!!!
    NO MORE PF!!!!

  8. +1
    -1
    vote

    Very interesting and eye opening analysis based on legal interpretation. I hope you can continue to be this objective Sunday and support issues with unbiased evidence. I give you thumbs up on this one and I agree with you. If anyone is dissatisfied with the current status quo of the president’s qualification to stand, they can go to the Constitution court.

  9. vote

    Please forgive me for those this hurts but one that never appreciates, never has someone to give them. this Lady my hero helped me a lot and moved me from the pit i was in, the life that i had lived for so many years was miserable. I worked but never got promoted, my mother was home suffering from cancer and looking at me as her only hope for financial aid sending her all my earnings for treatment, i have two boys and my husband who was not working, the salary i was paid was not enough for the responsibilities i had. One day as I was reading an article and saw a lady testifying and thanking some spirital healer mama Lakia for helping her, this woman said alot of things but what touched me most was:- “WHOEVER OUT THERE READING THIS, DO NOT SIT BACK AND WAIT FOR YOUR LIFE TO CHANGE BUT…

  10. 0
    -1
    vote

    Instead of working they are busy campaigning about the third term. Useless government

    • 0
      -1
      vote

      First secure third term then plan how to steal systematically then plan and do few developments to shat up people and win few hearts…that is politics….lol

  11. +1
    -1
    vote

    Dear LT editor, As an independent,I agree that there is excessive coverage of President Lungu on your site.He is not the only newsmaker.Besides he has znbc, Times,Daily,The Nation,Zambia reports and other websites.He killed the Post,let us hear other voices.I know you are fairly independent but there is too much Lungu news.You are promoting hero worshipping .

  12. 0
    -1
    vote

    LT, the excessive Lungu coverage is promoting personality cult that will in building a Dictator.President Lungu is a highly compromised man whose leadership qualities and judgement is questionable by many and so this excessive coverage at expense of others and human interest stories leaves a bad test in the mouth.Majority of Zambians do not support Lungu and PF nor HH and UPND,please do cater for them too!

  13. +2
    0
    vote

    I THINK SUNDAY CHANDA IS VERY RIGHT.
    HOWEVER, QUALIFYING TO BE PRESIDENT DOES NOT ONLY DEPEND ON WHAT IS SAID IN THE CONSTITUTION.
    IT ALSO DEPENDS ON WHAT ECL IS DOING IN STATE HOUSE.
    IF AS ZAMBIANS WE FEEL THAT HE DESERVES TO BE OUR PRESIDENT ONCE MORE, THEN WE WILL GIVE HIM ANOTHER CHANCE. EVEN THE PEOPLE OF DUNDUMWEZI WILL NOT CHANGE THAT.
    BUT IF WE THE VOTERS FEEL THAT WE NEED SOMEONE ELSE, WE WILL NOT VOTE FOR HIM.

  14. +1
    -1
    vote

    was article 35 repealed? if not a precedence has been set and since this is an amendment it means the original good power is still retained in the law unless it is repealed

  15. 0
    -3
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    The Sundays nature is what we want not just yaping like some of the bafoons above supporting HH from the dreams leaving the reality on the grounds. Chikonko mwikate!!!!!!!!!!!!!!!

  16. +2
    -1
    vote

    Courts go beyond what is written there is this thing called the ‘spirit of the law’! What was intended when the legislators called for a two term limit? Where they looking at the number of months one holds office? Or where they looking at PERSON who goes through the process of election, i.e. files nomination, campaigns and then wins an election? The articles Chanda seeks to rely on refers to the lacuna that existed in the past which called for elections within 90days. In this new constitution the running mate takes over. If it be for less than 3 years it shall not be considered a term, and there will be no ‘elections’. ECL doesn’t fall under that category. He is ineligible.

  17. vote

    Sunday Chanda- are you aware that Article 35 is still in the Contitution (Amended) 2016? There is no other piece of legislation more clearer than that provision. It is easier to act intelligent and support someone lobbying for something wrong in order to get favors than to stand for the truth even in an event where you stand alone. Edgar Lungu was not elected in an event where a “president elect died”. An actual presdient died in office and you are trying hard to make the three year or less before the next general election apply. This is wrong and you risk making your party more unpopular than it already is- Edgar Lungu has time, and enough to pick a successor, if he is smart, he would do so early to preclude all doubt.

  18. vote

    Personally, I think both sides have valid points worth noting. But we must not be swayed by what we read or feel, but be open minded as this debate is not over yet until the con-court finally gives its verdict. Remember, the issue of ministers remaining if office after the dissolution of parliament? The same learned lawyer our very President mocked us, saying we do not read and went on to ramble and convinced people like Sunday Chanda only to be humiliated by the ruling of the con-court. Much as I appreciate the intellectual evolution on both sides, the fact remains that correct position will be made known by the con-court and both side to the argument stand a chance to right or wrong.

  19. +2
    0
    vote

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

    vote

    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

  20. vote

    Amos Chanda is creating another Gambia even before the elections .What is wrong with you? Lungu got it wrong about the ministers continuing abusing their power before elections and he has got it all wrong again .

  21. vote

    Sunday Chanda, why did you not remind Lungu to hand over power to the Speaker when there was an election petition? Why do you only pick what suits you and your selfish needs from the constitution? Besides, honestly is this the priority at this juncture when your government has brought the country’s economy onto its knees? Are you not ashamed when you compare the economy of 2011 and the current state of affairs?

  22. vote

    I am not a lawyer but I feel it is unfair for Lungu to serve for only 6 years. In America Lyndon Johnson took over from Kennedy in 1963 when he was killed. He ran for presidency in 1964 and would have run in 1968 but declined because he had become unpopular because of the Viet Nam war.

  23. vote

    For me what detamaines the stay of a leader in Office is good work, and therefore it’s point less to talk about who is illegible or not, because a leader will be Voted or Elected by People based on his work SONTA APOWABOMBA, Luanda is a good Example, So please Stop the Debate and quietly show the people what will make them Vote for you

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