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)  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!
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).