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Wednesday, April 1, 2020

Why Concourt Was Wrong On Lungu’s 2021 Eligibility

Columns Why Concourt Was Wrong On Lungu's 2021 Eligibility

By Michael Chishala

Imagine it is 2014 and Dr Guy Scott is acting as President of the Republic of Zambia after the death of President Michael Sata. He somehow manages to get the Zambia Constitution Amendment Act of 2016 passed in Parliament and signed into law during the 90 days he is acting. He then calls the Attorney General to render a legal opinion on his new status after the Constitution has been amended. Other prominent Constitutional lawyers are also consulted.

Next thing, he calls a Cabinet meeting and presentations are made by the Attorney General, Solicitor General and other lawyers. Afterwards, Dr Scott announces to Cabinet that based on the legal opinions they have just heard, he should be immediately sworn in as President because the amended Constitution provides for the sitting Vice-President to be sworn in when the incumbent is no more. Some Ministers agree with his position but many others disagree because they are eyeing his seat. The Cabinet meeting extends into a lengthy debate for several hours running deep into the night.

Dr Scott’s opponents point out that before the 2016 Constitution came into effect, there was no provision for an appointed Vice-President to immediately assume office. He therefore has no legal basis to be sworn in as president. They point out that what he is doing amounts to retroactively applying a law which did not exist previously when he was just an appointed Veep. Moreover, they say, the transitional provisions which provide for what will happen during the interim period leading up to the full application of the new Constitutional order in August 2016 do not explicitly allow him to complete the remainder of Mr Sata’s term.

However, Dr Scott’s supporters counter that a literalist interpretation of the law is unfair. They argue that to all intents and purposes, Guy Scott fits into the role of an elected running mate. They say that the framers of the constitution clearly wanted to get rid of costly Presidential by-elections after the experience Zambia has had in 2008 and 2014 of sitting Presidents dying in office. So according to the spirit of the law, Dr Scott being sworn in achieves this purpose.

Whether he himself was on the ballot alongside Mr Sata is immaterial since in the eyes of Zambians, he was part of the ticket and was already known as number two to Mr Sata. Any questions of citizenship for Dr Scott have already been settled by the amended Constitution since it is no longer a requirement for his parents to have been Zambians (whatever that means in the pre-1964 era). Furthermore, it is argued that one must take a holistic approach and not be stuck on the exact letter of the law but rather what it is meant to achieve. This called the “Purposive” (or spirit of the law) interpretation as opposed to the “Literalist” (or letter of the law) approach.

One Cabinet Minister then points out that the Purposive method only applies when the Literalist interpretation produces an absurdity or an ambiguity. Neither of the two apply because the law is very clear with no uncertainty or absurd outcome. Dr Scott was not directly elected by the people so therefore cannot be sworn in. Moreover, appeals to “unfairness” only affect Dr Scott and cannot be the basis of making such a momentous decision for the whole country.

Another minister stands up and argues that this line of thinking is wrong because although there is no debate on the Constitution barring Dr Scott from assuming office based on the strict letter of the law as written, the transitional provisions recognise his currently running acting presidency since it is obviously not possible to fully comply with the amended Constitution. They explain that it is not possible to immediately produce a Vice-president who was a running mate to the president since the previous elections were held under different rules. Dr Scott is still exercising the executive functions of the president as if Zambia was still under the rules of the 1991 Constitution (amended in 1996). Not everything in the amended 2016 Constitution has come into effect whilst other things have, such as the Grade 12 Certificate requirement for contesting elections which is immediate.

The debate eventually ends up focusing on the transitional provisions. The essential question then becomes whether the transitional provisions are adequate to cover Dr Scott’s unique situation. His supporters say they are ambiguous and would require interpretation by a competent court based on the purposive method of interpretation. However, in the absence of a lawsuit, there is nothing stopping Dr Scott from being sworn in as there is some leeway in the amended 2016 Constitution.

And so the following day, Dr Scott is sworn in as 6th President of Zambia to serve the remainder of the term of Mr Sata. This action sharply divides opinion and ignites a fierce debate on radio, television, print, Internet and social media with passionate arguments from both sides. Finally, someone who supports Dr Scott decides to pre-emptively file a case in the Constitutional Court for determination of his eligibility to take over as full president.

Now imagine that it is January 2016. President Edgar Lungu has just signed into law the 2016 Constitution Amendment Act to much fanfare. Two weeks later, a large business delegation from another country jets in for a previously scheduled meeting. They sit, discuss, sign agreements and do a photo shoot shaking hands.

In February 2016, President Lungu goes to see a doctor as he is not feeling well. After examination, it turns out he has contracted a new disease. The country from which the business delegation came from is the origin and epicenter of the disease. A few phone calls later, it is established that everyone in that delegation became sick a week after the meeting. The doctors tell the president he has about one week to decide his fate. The president ponders his situation and finally decides to resign from office for health reasons.

He calls his Vice-President Madam Inonge Wina and informs her of the situation. He then goes into a Cabinet meeting with his Veep and makes the announcement as he hands in his resignation letter. All his ministers are shocked, but totally support his decision because the last thing Zambians would want to see is their president being sick and incoherent on TV as they have flashbacks to what happened with President Sata in Parliament in 2014.

The President has a national address the same day announcing his resignation and Madam Wina immediately begins acting as president in March 2016. It doesn’t take too long for people to begin raising questions about her status as acting president vis-a-vis the amended Constitution. She calls the Attorney General and has a lengthy discussion with him about the issue. The main question to resolve is whether she must remain as an acting president under the 1991 rules or she must be sworn in as president since she was the Veep previously.

She calls for a Cabinet meeting and the matter is tabled for debate. A lot of other issues and complications come up as the main question is debated. If she continues under the Constitution 1991 rules, then she can only act as president for 90 days. But that would mean having a presidential by-election in June 2016 with about 2 months to go before the August 2016 General Election which would still have to be held. This is potentially a big crisis due to the huge cost and complicated logistics of holding two national elections within a 3 month period. The results of the presidential by-election would be contested in court as it is likely to suffer from irregularities owing to the short time involved.

The transitional provisions are consulted but they contain nothing explicit and very specific to this kind of situation. All they say in Section 7(2) is that the Vice-president continues as before during the transition unless terminated by the president. But there is no President any more. After a lengthy debate, the Cabinet finally resolves that the only two workable solutions would be to either go back to Parliament and introduce a new emergency Bill to modify and clarify the transitional provisions with respect to the tenure of the acting president, or for Ms Wina to just be immediately sworn in as president, despite her not being elected.

The first solution depends on the opposition voting for it. If they vote against it, the threatened constitutional crisis would now become real and full blown and this would suit the opposition. As one minister quickly points out, the second option would lead to an immediate challenge in the courts of law by the opposition and that pesky lawyer John Sangwa and his side-kick Keith Mweemba, joined by the troublesome Linda Kasonde. Damn, this is becoming too complicated to deal with! Finally after much debate, Cabinet resolves to go for option two.

A few days later, Madam Inonge Wina is sworn in as 6th President of Zambia to serve the remainder of the term of Mr Sata. This action sharply divides opinion and ignites a fierce debate as someone who supports Ms Wina pre-emptively files a case in the Constitutional Court for determination of her eligibility to take over as full president.

Having laid the ground work with two important thought experiments, let us now properly examine the ruling of the Constitutional Court in the case of the eligibility of President Edgar Lungu contesting for another term starting in 2021. Despite the case being disposed of, the debate about the eligibility has recently come back and grown stronger with neither side willing to concede any ground. First a brief recap.

The summary of the position of the “Yes Camp”, those who support President Lungu is that we must use the purposive interpretation of the law in deciding this question. It is clear that the intention of the Legislature was to enable any new president to serve a substantial portion of the remainder of the term of office of their predecessor once a vacancy occurs. This is to allow them to achieve their agenda as president. Hence the introduction of the “Three Year Rule” which says that for the purposes of counting terms of office, any term less than 3 years does not count in determining whether someone has “twice held office” as per Clause 106(3).

As the Constitutional Court correctly noted in its judgment on page 78, it is possible for someone to serve as president for a maximum of almost 13 years (12 years, 12 months and 29 days). ie two five year terms and one term under 3 years to complete the term of a former incumbent. As an interesting side note, what would stop someone getting elected and resigning one day short of 3 years and then letting his Vice complete his term? Then at the next election, he runs again and serves another 3 years minus one day and repeats the same thing. Then he finally serves his two five year terms. He could easily serve 20 years plus this way. Although it is an extremely unlikely hypothetical situation, it exposes another lacuna with our Constitution.

Getting back to the issue, the “Yes Camp” who support President Lungu argue that he can run again since his first term of 18 months did not count as per the Three Year Rule as defined in Clause 106(6). The Court agreed with this position and ruled accordingly, although for different reasons. More on this soon.

The “No Camp” who oppose President Lungu’s Third Term bid argue that his first term must also be counted under the strict letter of the law. He has “twice held office” as the Constitution clearly states and is therefore not eligible to run again. Even if we want to apply the Three Year Rule to him, he does not qualify because that rule is only applied when either a Vice President who was a Running Mate takes over, or someone else is elected because the Veep could not take over for some reason. This is in Clause 106(5).

The Constitutional Court competently handled and addressed all these arguments from both sides in their ruling. They did not directly disagree with the main arguments of the No Camp but they did however reject the Yes Camp argument of leaning entirely on the purposive Interpretation method. The Court held, as it has before, that the sequence is to first use the literal method and then move to the purposive approach only if there is an ambiguity or absurdity in the application of the law.

Towards the end of the judgment on pages 79 and 80, it becomes clear that this entire case rested on the transitional provisions. As the Court correctly noted, there is authority and legal precedent for a court to clarify a law where there is either ambiguity or absurdity in its application.

The Court held that although there were transitional provisions drafted, they did not fully address the unique situation presented by the Edgar Lungu term which straddled two constitutional eras (page 79). They noted that there was no explicit mention in the transitional provisions on how his term would be treated with respect to the Three Year Rule. In saying this, they rejected the argument of the No Camp that there is no ambiguity on this issue in the amended Constitution.

The Court went on to say that it was not the intention of the framers of the Constitution to deliberately not deal with how the Three Year Rule applies to President Lungu’s first term (page 80-81). The Court appeared to have inferred that the treatment of the Lungu first term was somehow implied within the new 2016 rules. Therefore, according to the Court, we must not count the Lungu first term as per Article 106(6). This is on page 83 of the judgment.

The Court also on page 83 refused to make a ruling on whether President Lungu is eligible because in their words, the matter was “otoise”, in view of their position on the Lungu first term not counting as a full term. For most of us not steeped in legal jargon, to be “otoise” simply means to be redundant or pointless, serving no practical purpose or result.

ANALYSIS

The main bone of contention against the Court’s decision is their interpretation of the transitional provisions. Their judgment was that the transitional provisions are ambiguous vis-a-vis the Three Year Rule, but this is a rather dubious claim. In the transitional provisions, it states the following in the Constitution (Amendment) Act 1 of 2016 in Section 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.”

Furthermore, in Section 2(1), it says:

“In this Act, unless the context otherwise requires – ‘Constitution’ means the Constitution of Zambia, 1991, in force immediately before the effective date; ‘effective date’ means the date of the commencement of this Act and the Constitution as amended as provided in section four;”

Therefore, a clearer rendering of the transitional provisions in Section 7(1) is as follows:

“The President shall continue to serve as President for the unexpired term of that office as specified by the [1991] Constitution in accordance with the [1991] Constitution.”
(emphasis and clarification added)

This clearly proves that the entire first term of President Lungu up to August 2016 was to be governed by the 1991 rules and not any of the new 2016 rules. Therefore we cannot apply the Three Year Rule (or any other new rule) to his first term because this rule was not part of the earlier 1991 rules under which he was elected. We can only apply new rules in this particular case if the transitional provisions explicitly allow us to do so.

Moreover Section 6(1) of the transitional provisions stated the following:

“Subject to the other provisions of this Act, and so far as they are not inconsistent with the [1991] Constitution as amended, existing laws shall continue in force after the commencement of this Act as if they had been made in pursuance of the [1991] Constitution as amended, but shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the [1991] Constitution as amended.”

(emphasis and clarification added)

This proves further that the 1991 rules governing the first term of Mr Lungu were supreme and still remained in force during the transition as if they were part of the 2016 amended Constitution, despite the amendments introducing new conditions that did not exist before. The new conditions could not be applied to the Lungu first term because it was being governed by the 1991 rules during the transition between January and August 2016.

Contrary to the judgment on pages 79 and 80, the transitional provisions adequately provided for how to treat the Lungu first term. Meaning that if there was anything not explicitly stated, all you had to do was refer to the 1991 rules (with the 1996 Amendments). This now brings us to the final point.

NEW VERSUS AMENDED CONSTITUTION

The United Kingdom, our former colonial masters, does not have a written Constitution. When Zambia was under British rule, it was governed largely by English Common Law without a written Constitution and with other additional local laws made by the Northern Rhodesia Legislature.

In 1964, Zambia got its first written Constitution which even specified that Kenneth Kaunda would be the first President. Nine years later in 1973, Kaunda introduced a One Party State and through Parliament repealed and replaced the 1964 Constitution with a brand new one in which the PIG (Party and It’s Government) was supreme.

Seventeen years later, another brand new Constitution was enacted in 1991 to replace the 1973 Constitution and the PIG was overthrown at the elections that same year. In the opening paragraph, Constitution 1991 states the following:

“An Act to provide for a new Constitution of the Republic of Zambia and to repeal the Constitution of Zambia Act, 1973, and the Constitution scheduled there to, and to provide for matters connected with or incidental to the foregoing.”

Then in 1996, the Constitution was amended with new provisions added. Twenty years later, another round of amendments were added in 2016. Therefore, what we are using now is actually the 1991 Constitution amended twice. It is not a new Constitution to replace an old one as happened in 1973 and 1991.

This particular point is important to rebut the ruling of the court because it means that all terms served by any president between 1991 to date must be counted using the rules in effect at the time they were served. It is still the same Constitution since 1991, but with added amendments that cannot be applied retrospectively, unless there is explicit provision for this in the transitional provisions, which there isn’t.

If the 2016 Constitution was a brand new one, there would be merit in the argument that all terms of office previously served would be reset to zero. This is actually what happened in 1991 and made it possible for Dr Kaunda to contest again despite him having already served more than two terms when term limits were introduced in 1991. The Court alluded to this on page 70 of their judgment.

Since we have already established that the Lungu first term was to be governed using the 1991 Constitutional rules in force immediately preceding the 2016 amendments as per the transitional provisions already quoted, the term served from January 2015 to September 2016 must therefore be counted as a full term for the purposes of Article 106(3),(5) and (6).

POSTSCRIPT

1. Many commentators have claimed that the Court did not declare Edgar Lungu eligible to run in 2021 since they refused to specifically answer that question. This is not correct. The fact that they ruled that his first term should not be considered a full term for the purposes of the Three Year Rule obviously means that he is eligible according to their ruling. That is why they said the second question was “otoise”.

2. The logical application of the reasoning of the Court judgment means that both Guy Scott and Inonge Wina are immediately sworn in as President after a vacancy in our two thought experiments at the beginning of this article. This would undoubtedly be a reductio ad absurdum situation because neither was directly elected with the President under the old 1991 rules but were merely appointed. The Court’s argument on page 82 second paragraph that one cannot cherry-pick the application of the Clauses that deal with the same subject is untenable under our circumstances because it is not always possible to apply all the new rules that are introduced in the middle of the game.

No matter how you interpret all the Clauses taken together that deal with the Vice-President for example, there is no scenario where it would make logical sense to swear in an appointed Veep as per Article 106(5)(a) and 112(c) during the transition from one Constitutional era (1991/96) to another (2016). Not unless there is an explicit provision in the transitional provisions to this effect (which there wasn’t). As stated earlier, the Veep was to continue in office as before unless their appointment was terminated by the President. This particular point further proves that the terms of both the President and Veep during the transition were still being governed by the 1991 rules as per Section 7(2) of the transitional provisions (The President does not have power to terminate their Vice-President under the new 2016 rules). Section 7(2) states:

“A person holding the post of Vice-President, Minister or Deputy Minister shall continue to hold that position under the [1991] Constitution until that appointment is terminated by the President in accordance with the [1991] Constitution.”

(emphasis and clarification added)

Moral of the story: draft your transitional provisions very well.

 

Reference materials For Downloading

  1. ConCourt Judgment No. 60 of 2018-2017 CCZ-004 Danny Pule Vs. Attorney General Dec-2018
  2. Constitution of Zambia (Amendment) Act 2 of 2016
  3. Transitional Provisions – Constitution of Zambia (Amendment) Act 1 of 2016
  4. 1991 Zambian Constitution

The Author is a local Zambian analyst and commentator with a strong interest in Philosophy, Law, Economics and Politics amd can be reached at michael AT zambia DOT co DOT zm

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45 COMMENTS

  1. Don’t mislead people.if you want your god to win next years ‘ go and campaign for him.
    And control your bitterness and hatred of ECL .

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  2. No amount of speculation and self convincing will change that ConCourt ruling because ECL will stand as the PF candidate next year. Instead of formulating viable strategies that will inspire voters, upnd supporters like the one above want to hope for the impossible. Is this a sign of conceding defeat???

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  3. You can argue about constitution bla bla bla or not, lungu will only leave power by being forced out.

    Even in 2035 , or when ever , you will never get rid of lungu until he is physically forced out. He will dodge any law , change any constitution……he does not belive in laws.

    As far back as when lungu was forcing guy Scott off, I told you , you will never get rid of lungu.

    I was, and I am still right.

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  4. This is the most perfect written publication I have seen on Lusaka Times for the past 10 years! It has become depressing with the kaponya government and its lawless minions. Good to know that we still have learned and wise people in the country like the author of this brilliant piece.

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  5. Edgar Lungu also rushed thru some unprocedural PF party elections to adopt him as their flag bearer back in 2015. He’s a repeat fraud.

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  6. Very well said. And as i have been asking about Lungu’s eligibility in my past comments this well articulated writing answers it all. Lungu’s first term is under the amended 1996 constitution only his second term is under the 2016 amendment. Therefore Cleary Lungu is not supposed to run for a third term.

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  7. Lungu and the PF’s devious machinations to manipulate the constititional court and constitution itself to enable him curve out a clearly illegal third swearing-in is bound to spart a vicious civil uprising in this country. Let the likes of Siliya, Makebi Zulu, Tutwa Ngulube and all those judges on the Constitutional Court that this is fire they’re playing with, people in Ghana were executed by firing squad by Flt. Lt. Jerry John Rawlings. Students of history know that the murder of Justices Cecelia Koranteng Addo, Kwadwo Adjei Agyepong, and Poku Sarkodie shook the foundation of Ghana and the judiciary in particular. Starting with Chibomba, Mulenga, Sitali, Mulonda, Mulembe, Munalula and Musaluke, please know that the above mentioned judges in Ghana who were murdered were like yourselves…

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  8. … yourselves accused of being corrupt and biased having always adjudicated in favour of the PF and Lungu in particular. The election result challenge verdict & Lungu’s eligibility for 2021 wll surely come back to haunt all of you like Premier Mundia’s ghost did sinamalyanga sani!

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  9. Where’s Godfrey Miyanda? Is he ok? Normally whn there’s a debate like this he would weigh in wth a reasoned opinion. Even if he has retired from politics, he remains a thinking citizen and there’s no retirement from that.

  10. Corruption scandals: 48 Houses Social Security Cash Luxury Presidential Jet Ambulances Fire Trucks Mukula Trees Ndola-Lusaka Rd Malawi Maizegate Fuelgate Swaziland landgate Zesco Loans

    Sadly Lungu will not be barred from contesting the 2021 general elections. We have corrupt and not brave people serving in the judiciary and law enforcement who were supposed to be our first line of defence.

    Right now we should be thinking of uprising and mass demonstrations to force him out. He will respond with force initially and there will be some victims no doubt but the masses need to continue pressing on and force him out.
    If this fails, the next thing is to invest in measures to stop him from rigging and stealing the elections like he has done in the past. Simple investments like having a live camera feed or camcorder in every polling station and tallying point… to prevent his cronies from stealing the results, especially in the countryside. Force ECZ not delay the resultsz…

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  11. Corruption scandals: 48 Houses Social Security Cash Luxury Presidential Jet Ambulances Fire Trucks Mukula Trees Ndola-Lusaka Rd Malawi Maizegate Fuelgate Swaziland landgate Zesco Loans

    …Force ECZ not delay the results, etc.

    Of course through proper, independent legal process, he loses but this is a sh*th0le county!

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  12. In terms of the less than 3 years term counting as zero,does the current constitution say a vice president or someone elected BECAUSE THE VICE PRESIDENT COULD NOT TAKE OFFICE? Or it just says the vice president or president elect? The author has written a lot and confused himself on this simple clause to disqualify ECL. Because Zambians we don’t like to look at details when dealing with the constitution thats why the words elected twice were removed from the current constitution without any of you big writers noticing. If elected twice words had remained in the constitution we wouldn’t be having this issue. The concourt would have easily stated ECL is not eligible but twice holding office under the current constitution can only disqualify someone if both periods were 3 years and above.

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  13. But, the ConCourt declined to Rule over the current Presidents Eligibility to Run for Office in 2021, stating that the question of Presidents Eligibility to Stand in 2021 was Otiose! So, on which part of the Courts Ruling did It Declare that Mr Chagwa Lungu was Eligible to Stand in 2021?

  14. Maano: That’s the part of the judgement Lungu’s sidekicks don’t want u to tell the world. And the reason the court said that was because Lungu was not party to the petition the court was asked to pronounce itself on. Lungu would hv cleverly asked the court to explain why it was answering a question he had not asked it to answer as he not among the petitioners. Do u see why Bill 10 is critical?

  15. I hope that Zambian Professor from Oxford University who posted last week has read this article….instead of the cowardice he presented last week

  16. AK, are you thick? he clearly addresses that issue and says Lungu’s first election was pre 2016 amendment and as such, he served a full term under that consitution!
    The author opines, and i concur, that Lungu should not be allowed to stand in 2016, but the consitutional court made an error in their judgment.
    As things stand, Lungu is a beneficiary of a warped judgment.

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  17. Chishala, you should have sent your analysis of this judgment to your professional law journal. As you may know, judge-made law cannot be repealed by implication or extra-judicial agents. Dissenting opinions inform legal reform not political reform.

  18. @Spiderly you are only bent against ECL hence closed up as result insult me for just stating exactly what is written in the current constitution and not the words your friend introduces which are not in the constitution in order to validate is opinion. If you’re intelligent by now you will have known that the words elected twice if they remained in the current constitution would have given a different judgment. Initially some people who like the author of the article above were actually saying ‘elected twice’ when its not in the constitution. Your good friend has introduced words that are not in the constitution and to you he is smart. Just to help I am a patriotic citizen and not a partisan one. I am against the corruption in government and I don’t believe ACC does not know the owner…

  19. ..I don’t believe ACC does not know the owner of 48 houses or the people mentioned in the FIC report regarding the corruption surrounding the 42 fire trucks. Also for ACC to call a senior minister like the health minister there should be compelling information hence for them to stay quiet after I don’t believe the Doc has no issues because ACC does not call people of his status for a joke. Even on Bill 10 I don’t support it because I can’t understand why issues like deputy ministers which people said they don’t want can find itself in the document. Who brought that issue against people’s wishes? If government means well they can’t call other mps to debate a document wity wrong information and have a paper on the side they say will be incorporated if everyone agrees to debate. So am…

  20. So am not a blind supporter like you spider I deal with facts and not mislead people with what is not in the constitution like your good friend is trying to do. The current constitution has lacunas and when a constitution has lacunas court ruling based on it are always problematic hence the need to repeal it but it should be repealed with consensus of citizens on every clause.

  21. I see that Europe and Britain is on the lock down.Due to the corona virus.Let Britain and Europe shut petrol stations too.Peter Carlos Hinds.

  22. @Spiderly Existence: It is always interesting how quickly some of you people are able to assume loads and loads of nonsense on people you don’t even know. How about just debating the issue at hand without name-calling!? The point @AK is making is important and crucial to understanding why the ConCourt ruled the way it did. But, of course, most of you ANTI-LUNGU elements can’t see that. The write-up above is full of assumptions and “imaginations” presented as facts. And you think this passes for a sound Constitutional analysis, right? People, please……..!

    Like @AK has said, if you can square the phrases “ELECTED TWICE” and “HELD OFFICE TWICE” in the 1996 and 2016 Constitutional Amendments, this debate would be mute. But you can’t! The two are NOT the same. And that’s the…

  23. Continue…

    conundrum the ConCourt was presented with. However, the Court opted to side with the Current Constitutional Articles because the 1996 Articles became void the moment the 2016 Constitution came into effect. And the 2016 election was held under the 2016 Constitution. It is the same Constitution that ashared in the “Grade 12” education threshold for MPs. Which this author acknowledges, and seem to accept wholeheartedly, yet he wants to equivocate when it comes to Clauses that deal with the Executive Office (such as Article 106) in the same Constitution. So, what does that tell you?

    Just think about it, if the 2015 election was to count as Lungu’s FIRST and, the 2016 election has his SECOND, then which Constitution should we apply at this point? The 1996 Constitution…

  24. Continue….

    (which was no longer in effect in 2016 elections) or the 2016 Constitutional clauses under which the 2016 elections were held? And guess who DEMANDED the signing of the 2016 Constitution before the elections in that same year? YES, the same OPPOSITION PARTIES (especially UPND) and the so called NGOs who are now up in arms crying about its many lacunas and effect. O, by the way, do you remember the warnings of Mr. Wynter Kabimba about this same Constitution and its many problems? However, I am sure you also remember the amount and kind of insults folks of your ilk heaped on Kabimba at the time, right? If you don’t, just peruse the ZWD archives. Also, next time you start moaning about HUMAN RIGHTS in Zambia, please remember who killed THE BILL OF RIGHTS in 2016,…

  25. Continue….

    Okey!?

    But guess what, if you applied the 1996 Constitution here the other side would be just as unhappy. And I would contend for a good reason since I am of the view that the 2016 Constitution should take presidence here. Nonetheless, it is not just me, or people (e.g. @AK) who believe as I do, saying so. Thank God we have Courts in this Country and courts have already weighed in and said as much. And once a judgment is passed everybody has to learn to live with the Court’s decision and move on. That’s what DEMOCRACY entails and demands. If Constitutions were self-explanatory and self-contained in and onto themselves, there would be no need for such institutions as the ConCourt (or Supreme Courts in other Countries) to interpret and make Constitutions meaningful and…

  26. Continue…

    whole. The Court already ruled and you people are wasting time trying to resuscitate a dead “horse”. Good luck!

  27. Continue…

    whole. The Court already ruled and you people are wasting time trying to resuscitate a dead “horse”. Good luck!

  28. I don’t agree with the judgement but sadly we have to accept the judgement because it is the law of the land.
    We as a people need to change the strategy of how amend our laws and quit this business of being being reactionary and short sighted.
    What is important how to amend and strengthen the constitution to to avoid such craziness.
    We need to separate the judiciary from the executive.
    Taking away the presidents power to fire the supreme court justices and chief justice would be the most important first step.

  29. ‘Since we have already established that the Lungu first term was to be governed using the 1991 Constitutional rules in force immediately preceding the 2016 amendments as per the transitional provisions already quoted, the term served from January 2015 to September 2016 must therefore be counted as a full term for the purposes of Article 106(3),(5) and (6).’ This is very clear people!! This is the most comprehensible publication in addition to what has already been stated by SC Sangwa. Well done!!!

  30. @Yambayamba and @AK, you have both failed to grasp a simple point. When amendments are introduced to a constitution, they do not always take full effect 100%. For example you cannot swear in a Vice president who was not a running mate. There was no running mate until August 2016. This is 7 months after the 2016 constitution was already running. This is why transitional provisions exist. Lungu’s first term was created and started under the 1991 rules and not the 2016 rules. His whole first term was under the 1991 rules as explained in the article. So how do you apply the new rules?

    On issue of twice held office versus twice elected, being elected as president is not the only way you can hold office. You can also become president if you are a running mate vice president and your boss…

  31. On issue of twice held office versus twice elected, being elected as president is not the only way you can hold office. You can also become president if you are a running mate vice president and your boss resigns. You were elected as a vice president and not a president. Saying “twice elected” would miss out the veep who takes over from the president and serves more than 3 years.

  32. @AK and Yamba, not enough time to debate your arguments. Suffice it to state, the example the author gives are relevant in trying to see why the constitutional court erred in law. A very important poin that you seem to be missing is that the concourt applied the law retrospectively, that is very key!
    And you cannot say that the consituion (pre and post amendments) does not talk about being ELECTED to the office of the President twice, it does, and i will not indulge you in quoting everything here.
    The issue of holding office and the term of office are quite clear, if Wina ascends to the Presidency now, she will not be said to have finished a full term, and thus can contest in 2021 as well as 2026. Lungu’s election in 2015 to 2016 was a full term.
    I do say, if you dont see that, you…

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  33. if you dont see that, you are thick.
    and to clarify, the author’s use of the examples is well intended, if you cant appreciate that and simply assume that there is no logical basis for that, you are indeed thick.
    alas, i end here.

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  34. This is why I like the American judicial system. You cannot have a law that disadvantages the incumbent based on the fault of the law itself. I cannot believe that any law can seek to victimise an Individual that saves his or her country in the e ent of the demise of the siting president. The concourt was right in enterpreting the law the way they did.

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  35. @Spiderly Existence: It is regrettable that you still insist on calling people you don’t know “thick”. But that’s your and I will leave it at that. Nonetheless, I can see from your ramblings that you assume I did not read through this Article, but you can’t be any further from the truth. I am going to quote from this very Article to help you see why some of us believe the ConCourt ruling was correct.

    Interestingly, even the Author of this write-up concedes that the ConCourt has a DUTY and RIGHT to straighten out AMBIGUITIES or ARBSURDITIES wherever and whenever they exist in Law (the Constitution included.) And that’s what happened here in spite of the existence of the Transitional Provisions. Since the provisions do not sufficiently deal with the UNIQUE situation of…

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  36. Continue….

    Edgar Lungu’s 2015-2016 presidency, it was incumbent upon the Court to render CLARITY. And that’s the AMBIGUITY or ABSURDITY that the ConCourt set out to remedy….and they did. Whether you agree with the Court’s position or not is a matter you have to personally deal with. In fact, Sangwa being State Counsel should know better!

    QUOTE: “The Court COMPETENTLY handled and addressed all these arguments from both sides in their ruling. They did not directly disagree with the main arguments of the No Camp but they did however reject the Yes Camp argument of leaning entirely on the purposive Interpretation method. The Court held, as it has before, that the sequence is to first use the literal method and then move to the purposive approach only if there is an AMBIGUITY…

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  37. Continue…..

    or ABSURDITY in the application of the law.”

    “Towards the end of the judgment on pages 79 and 80, it becomes clear that this entire case RESTED on the TRANSITIONAL PROVISIONS. As the Court CORRECTLY noted, there is AUTHORITY and LEGAL PRECEDENT for a COURT to CLARIFY a LAW where there is either AMBIGUITY or ABSURDITY in its application.”

    “The Court held that although there were TRANSITIONAL PROVISIONS drafted, THEY DID NOT FULLY ADDRESS THE UNIQUE SITUATION PRESENTED BY THE EDGAR LUNGU TERM WHICH STRADDLED TWO CONSTITUTIONAL ERAS (page 79). THEY NOTED THAT THERE WAS NO EXPLICIT MENTION IN THE TRANSITIONAL PROVISIONS ON HOW HIS TERM WOULD BE TREATED WITH RESPECT TO THE THREE YEAR RULE. In saying this, THEY REJECTED THE ARGUMENT OF THE NO CAMP THAT THERE IS NO…

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  38. Continue…..

    AMBIGUITY ON THIS ISSUE IN THE AMENDED CONSTITUTION.”

    (All Caps are my own for emphasis purposes)

    Now, if you are going to concede all this ground concerning the Court’s Judgement, then what’s your argument really about? Or are you simply trying to convince yourself that you are not wrong to believe what you believe about this whole issue? But you see, this how Courts work the World over. You can’t always agree with every Court’s ruling because it is simply impossible, but you learn to live with it. Always give yourself an opportunity to believe that maybe your opinion or legal thinking is wrong because you can not always be right….that’s maturity of thought! The Court whose purpose is to look at these issues critically and with a sober mind have told us…

  39. Continue…..

    what they think about this issue. And it is their judgement that matter, not Sangwa’s (after he lost the same case in Court) or anybody else’s!!!!!

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