By Isaac Mwanza & Musterd Phiri
Zambians have been told that, among other nefarious schemes, the Patriotic Front (PF) is promoting Bill 10 in order to amend or altogether repeal Article 52 of the Constitution so that the eligibility of President Lungu to contest the 2021 presidential election cannot or should not be challenged in court. It is assumed, for reasons known only to the champions of this view, that for some reason, President Lungu is filled with trepidation that such a court challenge may result in his disqualification from standing. It is an interesting supposition which we find to be founded on nothing but loose sand, lacking any basis at law.
That being the case, it is logical to ask, in two parts; (1) what is the true intention behind the recommendation to repeal Article 52 from the Constitution, and (2) does repealing Article 52 prevent any person or party from challenging the eligibility of any presidential candidate before our courts? We shall take time to step by step, explain what is in Article 52 and the monster that hides in it which Bill 10 wants repealed. This commentary can be lengthy and not fit for those with a bad reading culture.
Understanding what is in Article 52
Article 52 of the Constitution of Zambia which is earmarked for repeal is not about the eligibility (qualifications and disqualifications) of any particular candidate whatsoever. This Article lays out the procedure for nomination of candidates who want to contest any elections, whether general or by-elections, presidential or parliamentary or local government elections.
Article 52 has 6 separate clauses: Clauses 1 to 4 is about the powers given to the Electoral Commission of Zambia (ECZ) to set the nomination dates for candidates for these elections, the process of how one can be nominated, how the nomination of any candidate, may be challenged, and the hearing of the petition challenging the nomination of any candidate.
For the 2021 General Elections 2021, ECZ has set 17th to 21st May, 2021 as the dates for filing nominations for Presidential, Parliamentary and Local Government Elections.
Article 52 clause 5 is about the timeframe, specifically related to a general election, namely, as to when the process of nominations and challenging the nomination of a candidate must be completed. The Article sets out the time frame, that is, thirty days before a general election. Under our Constitution, a general election is held on the second Thursday of August every five years after the last general election. In 2021, such an election will be held on 12th August, 2021.
ECZ has further approximated nomination petitions against candidates in Presidential, Parliamentary and Local Government Elections, to take place between May 25, 2021 and June 26, 2021. In addition to challenging the eligibility of a Presidential candidate before elections, Article 101(4)(b) of the Constitution provide a window for any person to petition the Constitutional Court to nullify the election of a presidential candidate who took part in the initial ballot on the ground that a provision of this Constitution or other law relating to presidential elections was not complied with.
For candidates under Parliamentary and Local Government Elections, Section 97(1) of the Electoral Process Act No. 35 of 2016 states that an election of a candidate as a Member of Parliament, mayor, council chairperson or councillor shall not be questioned except by an election petition. So in addition to the nomination petition filed before the election, the Act provides that a person can challenge the eligibility of an MP, Mayor, Council Chairperson or Councillor under Section 97(2)(c) on the ground that “the candidate was at the time of the election a person not qualified or a person disqualified for election.”
So it is a blatant lie that Article 52 is being repelled to stop anyone from challenging the nomination of any candidate. As the law stands, any person who has any reason to believe that any candidate who files in his or her nomination papers, is not eligible to participate, can file a petition to challenge the validity of any candidate’s nomination under the provision of Article 101 of the Constitution, for Presidential candidates, or under the Electoral Process Act with regard to candidates for MP, Mayor, Council Chairperson or Councillor.
There is an argument that it is better to petition the eligibility of a candidate, especially an incumbent, before elections because they may refuse to vacate the seat if it is done after the election. That argument is nonsensical as shown by recent concrete examples in the sister Republics of Kenya and Malawi, where both incumbent presidents complied with the decisions of their courts and submitted to fresh elections. In the United States of America in 2000, candidate George W. Bush sued sitting Vice President Albert R. Gore Jr. over the presidential election results in the state of Florida where the winner, between Mr. Bush and Mr. Gore Jr., would go on to win the electoral college and the Presidency of the United States of America. There was no attempt by the incumbent to resist the decision of the Supreme Court even though Vice President Gore openly disagreed with the court.
It is important in framing our laws, including our constitution, that our decisions should be guided by facts and not by emotions. The facts show that, to date, none of our politicians has ever resisted a decision of the court with regards to election results but have dutifully followed due process.
Article 52 clause 6 specifically gives the power to ECZ to cancel an election and require the filing of fresh nominations by eligible candidates and for an ensuing election after cancelation, to be held within 30 days of the filing of the fresh nominations. This is a mandatory provision when any of the 4 scenarios take place after the close of nominations and before the election date: (1) Where a candidate dies, (2) Where a candidate resigns, (3) Where a candidate becomes disqualified in accordance with Article 70, 100 or 153, or (4) where a court disqualifies a candidate for corruption or malpractice.
What Article 52 clause 6 means therefore for 2021 is that if you have, let us say, James Lukuku (RPP), Chilufya Tayali (EPP), Dan Pule, Wright Musoma (ZRP), Peter Chanda (NCP), Hakainde Hichilema (UPND), Edgar Lungu (PF), and Chishimba Kambwili (NDC), successfully file their nominations but one of them voluntarily withdraws from the election for any reason whatsoever, after the close of nominations on May 12, 2021 but before August 12, 2021 (scenario 2), the provisions of Article 52(6) means that the Electoral Commission of Zambia (ECZ) must cancel the election which was set to take place on August 12, 2021.
ECZ would then set a new date and call for filing fresh nominations for the presidential election. The new date for the presidential election must be 30 days after filing of fresh nominations. The dates for filing fresh nominations, as well as the date for the election itself, which should be 30 days after nominations, shall be set by ECZ as it is empowered to unilaterally determine.
Article 52 is not about Eligibility of President Lungu
The proposal to repeal Article 52 of the Constitution is not about the eligibility of President Lungu as has been claimed by certain people on various forums. It should recognised that in terms of the law, the question of President Lungu’s eligibility was settled by the Constitutional Court in its judgement delivered on ( ), which left no doubt about this issue. The Court, on page 83 of its comprehensive judgment, said the following:
“It therefore, follows that in the current case, the term served that ran from 25th January, 2015 to 13th September, 2016 and straddled two constitutional regimes, cannot be considered as a full term.”
And as regards the meaning of once or twice “holding office,” the Court said on page 82 of the same Eligibility Judgment.
“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.”
For many lawyers, this passage does not need any further explanation. The simple explanation is that the Court said, if you occupy office for 3 years up out of 5 years, it means you have “once held office” of the President. If you occupy office again for another 3 to 5 years, you would have twice held office. The opposite is also true. If you were elected to the office of the President, but occupy office for a period which is less than 3 years, you have not held office as President, and you are therefore eligible to run for election to that office.
The Court further stated, in unequivocal language, as follows:
“It therefore, follows that in the current case, the term served which sits astride the pre- and post-2016 constitutional amendments and having looked at the intention of the Legislature as we have done, and the holistic approach we have taken in interpreting Article 106 in its entirety, our answer to the question which we have rephrased is that the presidential term which ran from 23rd January 2015 to 13th September 2016 and straddled two constitutional regimes cannot be considered as a full term”.
The reference by the Court, to the “the term that ran from 23rd January 2015 to 13th September 2016 and straddled two constitutional regimes”, leaves absolutely no doubt as to which potential candidate the court was referring to, as no one other than President Lungu, fits the circumstances specified by the court in its judgment.
There is therefore no need whatsoever, for President Lungu to spearhead a clandestine campaign to repeal Article 52 of the Constitution for his own purposes. If he chooses to stand in 2021, President Lungu’s eligibility is not in doubt as the path was cleared by the Constitutional Court.
So, what is the problem with Article 52?
First, it must be acknowledged that Article 52 does not override the constitutional provision that the general election must be held on the second Thursday of August every five years after the last general election, provided that any situation or scenario described in Article 52(6) does not arise or occur. However, once any of the 4 scenarios takes place, article 52(6) is triggered. ECZ has constitutional powers to cancel an election (presidential, parliamentary or local government), call for fresh nominations and a new date for the cancelled election, either presidential, parliamentary of local government, comes into place.
Although such new poll date must fall within 30 days of the date of filing fresh nominations, the for filing such new nominations, will be set by ECZ unilaterally, thereby nullifying the constitutionally mandated Second Thursday of August every 5 years. The subsequent election, therefore, will have to take place 5 years after the last one, thereby moving the election date from the constitutional 2nd Thursday of August.
So let’s assume that between May 25, 2021 to June 26, 2021 when the nomination petition is being heard against any candidate, a Presidential candidate dies or resigns, there would be fresh nominations called by ECZ. It could be argued that a petition challenging a nomination which was filed after the first nominations, but was not determined at the time of the fresh nominations for the election, has become moot (it is turned into a petition in which controversy no longer exists but only presents an abstract question that does not arise from existing facts or rights).
Our Constitutional Court has guided in its past decisions that it does not determine matters which are academic in nature, and such a petition would then become null and void, denying the petitioner justice.
What is more puzzling in this scenario is that eligible candidates would file the fresh nominations and the election would take place within 30 days. Therefore, assuming that the resignation of a presidential candidate took place on June 1, 2021 and ECZ set the date for filing fresh nominations for June 5, 2021, the law in article 52(6) mandatorily requires the election to be held within 30 days from June 5, 2021, the 30 days to be inclusive of weekends and holidays.
How does one petition the nomination of a candidate whose election would be held within 30 days after filing of fresh nominations? There is no provision in the Constitution for challenging the nomination of such a presidential candidate but we can only infer that the process would have to adopt the provisions of Article 52 clause 1 to 5.
Secondly, Article 52 can become a source of serious conflict in an election. We don’t know whether any of the candidates mentioned in our example above would freely concede that Article 52 expressly empowers ECZ to cancel a presidential election and to unilaterally set a new nomination date which becomes the basis for fresh elections to be held within 30 days of filing of nominations. Suppose a presidential candidate resigned or died on August 10, which is two days before August 12, 2021 elections? Your guess is as good as mine. How many times can an election be cancelled by virtue of Article 52(6)? The answer is, obviously, as often as the circumstances arise in accordance with the provisions of Article 52(6)!
There is nothing to stop a political party from nominating a candidate whom they fully intend to withdraw from the contest in order to give them more time to organise and mobilise, by withdrawing such a candidate in order to trigger the provisions of Article 52(6) which would give that political party an extra period of at least 30 to mobilise while ECZ receives fresh nominations and sets a new date for that election.
ECZ would then have to print fresh ballot papers and start the whole logistical process afresh, incurring more expense and inviting disruption to the election by the onset of the rainy season, disrupting the school calendar as well as the farming season, not to mention the issues of roads and transportation of election materials.
Thirdly, Article 52 petition that comes a result of Article 52 are not different in nature from one that comes as a result of Articles 73, 101, and 159 as well as Section 97(2)(c) of the Electoral Process Act. The deal with similar questions. As authors, we of the view that the filing of petitions before an election, is quite unnecessary as a remedy for any petitioner, after the election, by way of election petition, whereby an election can be reversed by the court nullifying the result of such an election if the petitioner proves that the winner would have been disqualified from standing for reasons set out in the relevant electoral law.
The remedy of election petition has always been available and has demonstrably served its purpose, avoiding unnecessary loss of time or waste of resources in the event that the election petition is unsuccessful. An election petition after the election, ensures that the electorate are not unnecessarily deprived of representation by cancellation and subsequent delay of the election, and the country is not placed unnecessarily in limbo and time lost, should a presidential election petition prove unsuccessful.
Finally, our view is that in light of provisions of Article 56 and, especially, clause 6, it is best not to allow petitions challenging eligibility of any candidate before an election, in order to avoid frivolous and vexatious petitions intended to disrupt an election or to allow late comers the opportunity to file their nomination at the second opportunity triggered by the provisions of Article 52(6). It would be wrong to dismiss the potential of mischief by candidates under this article, which could be used for purely selfish motives which would prove extremely costly.
It should be noted that there is no provision for sanctions or any form of deterrent against abuse of this article or its provisions. It should also be noted that ECZ is under a duty to cancel an election and set new dates if the circumstances described in this Article, arise. It presents a real potential to delay any election, depending on the outcome against any candidate.
We would conclude by borrowing from a senior citizen who commented thus: “we should not write a constitution which reflects the mistrust of a few. The constitution should not be a tool to intimidate or obstruct; it should assume the best and provide remedies for potential pitfalls, not tie up the courts in litigation instigated by fearful or jealous political rivals. Instead, the constitution should assume that all candidates come to the electorate in good faith and with clean hands, on an equal footing while holding the promise of justice for any and all aggrieved parties as part of the process, by way of election petition, which remedy has proved its value over time.
It [the Constitution] should be like insurance; we don’t file a claim because we think we may have an accident; we put our faith in the policy, that it will mitigate the loss if indeed we do suffer a loss via accident. Insurance is not intended to eliminate accidents, either by the insurer or the insured, but gives assurance that both parties will act in good faith and respect their agreement. So too should electoral law; it should not assume good men and bad men, but that all are equal.”
Article 52, if left in its current form, will give rise to serious challenges especially with the clause that empowers ECZ to cancel an election and the holding of an election within a new time frame. It is possible that some political parties, sensing danger that their party or candidate is likely to lose, will simply resign from the race in order to bring about a delay during which they will take the opportunity to mobilise and organise by delaying the election. There is no guarantee that the other side would not do the same as regards elections conducted after fresh nominations, thereby inducing further delay for their own purposes. Many will have different interpretations on the effects of Article 52, especially clause 6 but it is important that we do not lose sight of what the real effects can be.
(DISCLAIMER: The views in this commentary represent the collective views of the authors who are law scholars and do not reflect the views of any organisation or institution they may be associated with or affiliated to)