By Isaac Mwanza
Introduction
On 9th August, 2016, this author ignited the debate on whether President Lungu qualifies to contest the 2021 elections. Just like Canadian-based lawyer, this author was a view that President Lungu did not qualify for President until when the Constitutional Court of Zambia passed the landmark Judgment in Dr. Daniel Pule and 3 Others [Selected Judgment No. 60 of 2018]. While the Court did not plainly declare that President Lungu is eligible to contest 2021 elections, the Court addressed key issues that paved way for the President to contest. Let’s discuss these two issues.
1. President Lungu never served a “term” between 2015 and 2016
What appears not to be contentious at this point is the clear declaration by the Constitutional Court that the period commencing 25th January, 2015 to 13th September, 2016 which President Lungu was elected and occupied the office of President was not a term. This is clear from the pronouncement of the Court on page J83 where the Court stated:
“It therefore, follows that in the current case, the term served [by President Lungu] that ran from 25th January, 2015 to 13th September, 2016 and straddled two constitutional regimes, cannot be considered as a full term.”
There is no dispute now around this pronouncement as its clear for all to see.
2. That holding office refers to a term
The debate has now shifted to provisions of Article 106(3) which reads as follows:
“Article 106 (3)
A person who has twice held office as President is not eligible for election as President.”
First this provision is different from the repealed provision of 1996. In the 1996 Constitution, the provision was very clear and left no room for further interpretation. The repealed provision read:
“Article 35. (2) [Now repealed]
Notwithstanding anything to the contrary contained in this Constitution or any other law no person who has twice been elected as President shall be eligible for re-election to that office.”
No doubt, if the repealed article 35(2) had remained in the Constitution, President Lungu was going to have been out of the race as he has twice been elected into office. But this provision is no longer part of our law. It has been replaced, and for good reasons. Those reasons are beyond the current discussion here.
So the question the question we are dealing with now is about article 106(3) as it exists in the Constitution. What did the Court say about the meaning of the phrase, “twice held office”?
On page J75, the Court said:
“It is imperative to first determine what would be considered as ‘holding office’ under Article 106. In particular, Article 106 (2), which we have already quoted above states that a President shall hold office from the date the President-elect is sworn into office and ending oh the date the next president-elect is sworn into office.”
However, the Court did not stop there but, on page 59, asked a very important question: “For how long can a president hold office?” In effect, the Court was asking whether a person who is sworn into office for 1 day, 1 year and eight months as did President Lungu or 5 years can qualify to be said as holding office.
The firm answer by the Court to settle this question is found on page J82 where the Court stated:
“The sub-articles (clauses) in Article 106 cannot be isolated from each other in interpreting the article. An interpretation of a constitutional provision that isolates the provisions touching on the same subject is faulty. Therefore, to state that Article 106 (3) applies to the term that straddled two constitutional regimes but that Article 106 (6) does not, is to isolate Article 106 (3) from the rest of the provisions in Article 106 which is untenable at law, and is at variance with the tenets of constitutional interpretation, as all the provisions on the tenure of office of the President must be read together. The provision regarding the full term must be applied to defining what is meant by twice held office under Article 106 (3) in interpreting the provisions of that Article.”
As everyone can see from the last sentence in quoted part, the provision regarding the full term must be applied to defining what is meant by twice held office under Article 106 (3).
There is no dispute, at this point, what “the provision regarding the full term” which the Court was referring to are. Anybody who has served for more than 3 years has held office of the President and anybody who has served for less than 3 years has not held office of the President. This is what the Court was saying to be holding office.
To add clarity to the Court said, one can only check its pronouncement on page J78 where the full bench stated:
“Under Article 106 (6) (b) it is now possible for one to occupy the office of President for a period which is less than a full term in addition to two full terms of office. Meaning that a President can be in the office for a total of almost 13 years.”
In the quote above, the Court was even more careful in the selection of words. Instead of saying, it is now possible for one to “hold the office” of President the court preferred to use the word “occupy the office of President.” When you occupy the office of the President after being elected and sworn into office of President, or in case of a Vice President who automatically assume that office, say for less than 1,068 days or 89 months (which is less than 3 months), you would not have held office, despite fact that you were sworn into that office.
In a nutshell, the Court was conclusive in pronouncing itself on the current provisions of the Constitution. (1) the term President Lungu served from 25th January, 2015 to 13th September, 2016 (which was 20 months or 1 year six months) is not a term under this Constitution and (2) a person can only be said to have held office under Article 106(3) if they occupied that office for a minimum of 3 years and maximum of 5 years.
Did the Court pronounce that President Lungu is eligible to stand? No, the Court would not do that unless the President, like any other candidate filed the nomination and someone challenged the nomination. Before one files the nomination, the Court has always taken the matter is premature. So what is the significance of the Eligibility Judgment then?
The importance of the Court having pronounced itself that the term President Lungu served from 25th January, 2015 to 13th September, 2016 is not a term under this Constitution and (2) a person can only be said to have held office under Article 106(3) if they occupied that office for a minimum of 3 years, is that it gives an indication on even to those who will have questions when the President files the nomination.
In 2021, the nomination will be filed under the Constitution as amended in 2016 and not under the 1996 Constitution which had stated that no person who has twice been elected as President shall be eligible for re-election to that office. The current law is that anybody who has occupied the office of President for a minimum of 3 years will have held office once. When they serve for another 3 years, they would have held office twice.
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Conclusion
From the above, holding office twice means that one has not only been elected twice or sworn into office of the President twice but that the combined terms for which we occupied office was a minimum of years but one can occupy office for 13 years and still be deemed to have held office twice under the current law, provided the other time was elected and sworn into that office is less than 3 years and thus disqualified from being referred to as holding office. Of course, Hakainde Hichilema, Chishimba Kambwili, Chilufya Tayali and President Lungu who want to contest 2021 elections, none of them can be said to have an outright ticket to contest until they file in their nominations and ECZ accepts the nomination or rejects the same. Once the matter is challenged in Court, the Court can then pronounce itself on it. For President Lungu, he is serving the first term of office which is ending in 2021; the inference of the eligibility judgment also is that the 20 months he occupied office do not qualify for having held office under the current Constitution.
Fellow Zambians, don’t we have something we can focus on than talking about eligibility!!!!! Edgar or no Edgar people will cast their votes to select a new president.
Is Edgar giving people sleepless nights????? Whether hh or Edgar wins, I have a life to live with my children. The two people will not bring money into your pockets. For your own information, HH will squeeze the Bembas
I would like ECL to be on the ballot, so that we see PFs strongest candidate fall hard.
He will fall due to:
– Mukula
– Corruption
– Bad Economy
– Load Shedding
– POA and Police Killings
– Spax
– 40 x 40
– KZ
– 48 Houses
– Cadres and Bowman
(6) 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. Edgar was not Vice who took over office from Sata. He was elected and sworn in under the old…
I would like to commend Mr Mwanza for a clearly stating his interpretation of the ConCourt ruling and the Constitution clauses and articles. Can those who have an opposing view such as Mr Sangwa lay out their interpretation just as clearly? This would help those of us with no background in law.
@Henry there 73 tribes in this country, out of all the tribes in the country is that your only preoccupation? if you have no data about a particular topic let those with info discuss, we who are not lawyers want to learn something, but due to your cesspool mentality you have made me show my big head on this article.
The foooools in UPND will be distracted by this instead of focusing on current affairs like gassing, the Mukula logs
Eligibility?? Opposition really have ran out of ideas!! What else is coming up, ECL has a child in Swaziland?? Really just shows that this is not the right time to change GRZ there’s no one suitable to take over!!!!
I think the nation unity foundations in Zambia hv corroded. Do others recognize this? “HH will squeeze the Bembas” says Henry. So what crime hv the Bembas committed as a collective? Whn did they all meet to agree to commit that crime? Hw does squeezing the Bembas fix Zambia? Hw does not paying newly-recruited nurses for 4 months and university lecturers for 2 months as is the case now benefit the Bembas or any tribe for that matter? I hv to repeat my previous argument. Britain was wrong to hv granted independence to Zambia 1964. Anyway, it’s the Americans who were pushing for it because they wanted a share of Britain’s trade with the empire.
Weather eligible or not Mr President please do Zambia a favour. Let others who have the ability to lead rule the country before the country goes to a complete waste land. We love you but this is not your talent.
It’s a pointless debate. ECL will do whatever he wants. It’s not John Sangwa or the court to stop him.
See @laughter kuseka seka post. The pieces of constitution saying either the vice president or president elect who serves less than 3 years has not served a full term. The 1996 constitution is what stated that if a person is elected twice he or she is not eligible to contest another presidential election but the current constitution does not say so. When constitutions are being formulated our lawyers in this country don’t help. Is it an issue of having potential clients to represent? If our lawyers had corrected the counting of 14 days in advance HH wouldn’t have spent a ngwee on petitioning. Now a platform is being prepared for petitioning 2021 elections on the basis of eligibility should ECL win. Will this country ever rest from elections disputes? Is it possible for us to pass a law…
Mr Mwanza reminds me of the Lord Denning. A legal mind for the likes of many “lawyeroids” like Sangwa and Baron Ndhlew to emulate.
Is it possible to pass a law before 2021 elections to disqualify everyone who has ever contested or held office at both presidential and parliamentary level from seeking office in 2021 elections. I think if we did that it will help us come up with a fresh set of political leaders. Ala ba UPND na ba PF and those who were once in government mwatunasha mwe. Everyday its arguments. Does the word politics mean arguments or fighting? Please give us a break imwe bantu.
Corruption, incompetence, and just generally very poor leadership should be enough to make an individual ineligible.
very true.Bad governance is enough to disqualify someone from standing again
Please let Edgar stand. He will be the easiest to defeat rather than the PF bringing someone else who might be able to do better and even possibly win.
@ Henry you’re spot on. It’s amazing how these chaps cannot read between the lines! This guys hates all Bembas with passion.
I would actually be glad to see this HH win so that these Bembas blindly supporting him are taught a lesson!
Let those with ears listen. This is same boy who told Sangwa before 14 days ended but was ignored. He has simplied judgment for us all. Tx Mister
@ Nemwine, I partly agree with you. But the problem is those questions you’re asking should be directed at Hichilema himself. Fact is the guys has so much hatred for Bembas, going by what he has said privately – and even publicly in the past! Imagine if he now became PRESIDENT!
@ Nemwine, I partly agree with you. But the problem is those questions you’re asking should be directed at Hichilema himself. Fact is the guy has so much hatred for Bembas, going by what he has said privately – and even publicly in the past! Imagine if he now became PRESIDENT!
Sangwa needs this lecture. He still lives in the past. Let him challenge nomination for ECL, that ruling will be thrown in his face. Didnt know.this judgment was as clear as this.
Despite few typographical errors here and there, I think this is a brilliant piece. We wasting time on non issues. Let people just prepare for ECL in 2021. What guarantee do we have that HH or CK will be eligible as well? When u dig a pit for someone, just know u may fall into it yourself. This is case of HH and Sangwa.
Would it not be wise for Sangwa to concentrate on his divorce? He can get some counselling. This judgment is clear.
Yavuta nkani
Judgement simplified. Why is UPND/Sangwa panicking. I also heard Wynter lie that current Constitution say elected twice. He is living in 1996, lol
This debate is irrelevant!
What is critical to discuss is how the economy is doing! When the economy is good for everyone, no one cares about eligibilities! Life is too short to waste on endless debates! Let him stand and let the ballot settle the case! Unless the opposition are having post traumatic stress disorder at the thought of ECL standing!
It does not matter is the constitution says lungu can stand or not , he is going to stand….lungu does not follow any rules or laws…..
It is not a coincidence that lungus previous life as a lawyer , 90 % of his work was to defend crooks or help crooks beat the system….with the last 10 % genuine honest work , he was dipping his hands in clients funds
Che Guevara: Zambian citizens are protected by the constitution and not the republican president. For example , Michael Sata fired some police officers. They went to court and Judg Aness Bobo reinstated them.
It can be proven mathematically. That the past is=to the future.Peter Carlos Hinds.
So Sangwa tabelenga,he is not learned to understand this kind of judgement.
I am sure that if Isaac Mwanza was still FDD, his argument would be different. As a PF cadre now the poor boy is trying to tweak his reasoning to suit his masters and we all know that you can’t trust PF reasoning, looking at their record. But my view is that Isaac Mwanza should leave legal matters to the legal brains in PF even if most of them also reason like PF cadres. The boy’s reasoning is rather daft and ignorant, and only serves to publicly damage President Lungu’s intention to stand again. I for one never thought much about the Concourt decision, which I would rather call pronouncements on the eligibility clause. I thought it straight forward and a done deal President Lungu to stand again. But now with Isaac Mwanza flawed “legal analysis, I have read again and and I have…
…..But now with Isaac Mwanza flawed “legal analysis, I have read again and and I have serious reservations. Let me explain myself by dissecting and tearing apart the boy’s damaging opinion.
1. Yes it is correct to say that President Lungu did not serve a full term from 24th January 2015 to 13th September 2016. There is NO dispute about that since a term is 5 years or a lesser period defined in the Constitution, three years perhaps? But that is NOT the dispute of eligibility of ECL to stand for a third time, it’s not a question of sympathy for ECL as an individual that he was not lucky enough or the Constitution is not fair enough for him to enjoy state house for at least ten years. In fact if you take that argument then you must also argue that it would be unfair to allow him to…
….. In fact if you take that argument then you must also argue that it would be unfair to allow him to serve for more than ten years, as Isaac Mwanza is trying to do. These offices are not for personal glory or even enrichment, but for service to country, and if it is for service only then there is no need for ECL to stand against, other people in PF can serve. The argument of eligibility is strictly defined by the number of times one has “held the office of President”.
…..
2. 2016 constitution: “Article 106 (3)
A person who has twice held office as President is not eligible for election as President.”
1996 constitution: “Article 35. (2) [Now repealed]
Notwithstanding anything to the contrary contained in this Constitution or any other law no person who has twice been elected as President shall be eligible for re-election to that office.”
There is absolutely NO DIFFERENCE between the two as Isaac Mwanza is trying to argue. It is just the language used but anyone who has a full certificate in English knows that the meaning is EXACTLY the same. Doesn’t even require legal interpretation by constitutional lawyers like John Sangwa or Professor Patrick Mvunga.
……”Article 106 (2), which we have already quoted above states that a President shall hold office from the date the President-elect is sworn into office and ending on the date the next president-elect is sworn into office.”
This article reinforces the above articles of 2016 and 1996 constitutions. ECL has held office twice, has been elected twice, and has been a president-elect twice. All the boxes are ticked for ECL.
In terms of holding office twice, the article refers to a person being a president-elect twice. Therefore only Veep Inonge would qualify to be in office three times because under the 2016 running mate clause she can be president initially by taking over presidency in the event of ECL being unable to complete his term. But this would not count as holding office…
…. But this would not count as holding office because that term is tied to being elected and sworn in as president as defined. Inonge and subsequent running mates in future can be president once without being elected, then stand again two times, thus being president for more than ten years. Unfortunately, this benefit cannot and does not apply to ECL as he has met the conditions for holding office twice by virtue of the definition above. Too bad but he signed the constitution himself didn’t he?
Therefore I agree with John Sangwa S.C. that the nomination of ECL is bound to be challenged legally. The Concourt may even have to review it’s own judgement, after all it did so with ministers salaries, in a review requested by PF ministers themselves which will now serve as a reference…
…..The Concourt may even have to review it’s own judgement, after all it did so with ministers salaries, in a review requested by PF ministers themselves which will now serve as a reference point for the lawyers and judges alike. If I were PF, I would not bury my head in sand. Or listen to daft boys like Isaac Mwanza and Sunday Chanda. PF, my advice is free by the way, but if you hire me in 2021, I or any other lawyer will lose the case and still give you a huge bill.
In any case, apart from the legal arguments which are not in PF’s favour, there is also the matter of voters feelings about how our economy has driven to the brink of death contrary to more money in your pockets and thoughtless infrastructure development.
This article is making assumptions, and it’s very easy for someone who does not read to think the arguments here make sense. I would advise the writer to watch John Sangwa SC. You can find his explanation (Lecture) on Radio Phoenix web page. I am very certain that the president in not eligible for another term. PF would be taking a very big risk to nominate him for 2021 elections.
Lukanga Kafusha Justice March 7, 2020 At 3:29 pm
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