9.5 C
Alba Iulia
Saturday, January 16, 2021

Third term bid will end up in the Constitutional Court

Columns Third term bid will end up in the Constitutional Court

By Fred M’membe

It is becoming clear that the issue of Mr Edgar Lungu’s third term eligibility will have to be decided by the Constitutional Court. It seems Mr Lungu, in his usual character of not backing down on anything he wants, will file in nomination papers with the Chief Justice to have his name on the ballot paper. I say this because huge volumes of campaign materials with his name have started flowing in. It won’t be easy to change this – the cost of doing so will be gigantic. And last minute presidential candidate changes will throw his party into a quandary.

But one wonders where this apparently assured confidence is coming from. The risk is too high to ignore. This means that those determined to stop him from contesting next year’s elections in the belief that it will be a violation of the Constitution will have no choice but to go to the Constitutional Court.

Mr Lungu who says the Constitutional Court cleared him to stand must be ready for this. And, indeed, he seems to be ready, confident and assured all will go his way.

Moreover, all the judges of the Constitutional Court were appointed by him. In 2016, this Constitutional Court came under heavy public criticism over the manner it had ended the election petition against him. And even the court itself was divided over that matter. These are the same Constitutional Court judges who will have to determine Mr Lungu’s presidential candidature in next year’s elections!

Do legitimate issues of public trust, confidence in the Constitutional Court over this matter arise?

All I can say is that an independent and efficient judiciary will be crucial to ensuring that the promises, fundamental values and principles enshrined in the Constitution of Zambia are upheld.

Without an independent judiciary, the Constitution would be reduced to a statement of empty promises.

Every institution has its moments of glory and challenge. The present are moments of challenge when courts have an accentuated duty to become conscious of Constitutional provisions when those in power begin to seek unending dominion. True to their oaths of office, judges must act without fear, favour, affection or ill will, for without an independent judiciary, the Constitution is little more than a statement of empty promises. The democratic credentials of our courts depend on the premise that all individuals are free and equal.

Society will always have someone who will try to manipulate the law to the detriment of society. The solution lies in an ordered, principled and just adjudication. Our judiciary was ultimately trusted with the most important task of all i.e. ensuring that terms of the settlement, or the Constitution, were not breached.

The Constitutional Court is the final interpreter of the Constitution. Together with the Supreme Court, the Court of Appeal and High Courts are tasked with the highest duty: checking the actions of both the executive and the legislature, each of whom are bound by the Constitution. Considering the enormity of this responsibility, insulating the courts ought to have been a matter of Constitutional design. No court can be expected to perform its checking functions with interference from other branches of Government.

Judicial power should never be a facilitator for executive intentions. On the contrary, it has to be an interrogator or scrutineer of executive power.

These are definitive moments when our courts need to reflect upon their own trajectory, their moral alignments and, most importantly, their duty to enhance hope. This is because our Constitution is supposed to be a document of hope.

Initially, we all hoped that Mr Lungu would do the right thing. With Mr Lungu’s insistence on contesting next year’s presidential elections, now it all rests on the hope that judges of the Constitutional Court would do the right thing.

37 COMMENTS

  1. Fred Membe, you are being the usual crackpot playing on the minds of the judges. The interpretation was done in the Pule and others judgement. Read the ruling carefully with all objectivity before you come and start insulting the same judges when your ka petition is thrown out.

    24
    18
  2. Lungu is a corrupt fellow who always operates in the Gray areas of the law ,

    Even in his pre presidential life as a lawyer , lungu represent all manner of unsavoury characters and crookes like fawaz , helping them beat the system

    23
    19
  3. The decisions of the Constitutional Court stand only in so far as that is the will of the people. We created these institutions when we thought we needed them. If they are corrupted and comprised, then it is the people’s right to dismantle them. So I don’t agree with the implication that the court will have the final say on this issue. That’s not a divine right.

    At some point the 18 Million will speak. Kampyongo and his boss know it. That is why they took a leaf from the apartheid era and armed themselves with military grade citizen-suppression machinery. Dr. Kaunda is still alive. Ask him about 1991.

    19
    6
  4. What do you expect from such a caliber? The dribbled the widow win pf convention by raising hand ( pick pick na pick doly), and dubiously advised ministers to remain in office. I don’t expect anything right.

    21
    7
  5. What do you expect from such a caliber? The man dribbled the widow, win pf convention by raising hand ( pick pick na pick doly), and dubiously advised ministers to remain in office. I don’t expect anything right.

    7
    7
  6. Iwe what court? The same court which considered and ruled this matter? Why should they waste time on rubbish that has already been discarded? Why can’t you be man enough to face our president head on in elections? You are always trying underground moves to try and ensure he does not stand. It shows that you lack confidence in yourselves as you know that you will lose if ECLungu stands. If you are so frustrated just move to diaspora and join your fellow sad and angry diaspora upnd supporters. I am sure they will find you a job there wiping old peoples ma2uvi

    18
    22
  7. The United States Supreme Court (SCOTUS) will be a good example of what will happen in Zambia. All judges can be divided into two. There are ORIGINALSTS (literalists) and Modernists (revisionists). These are wrongly called ‘conservative’ and ‘liberal.’ Originalists interpret the law with a view to approximate to what was in the mind of the people who wrote it. Modernists enter into the ‘spirit of the law’ under new or changed circumstances. When the US constitution was written, ‘All men are created equal’ did not include Africans, whites who did not own land, women and children. It takes a modernist interpretation to correct the wrong. What did the writers of the 2016 Constitution amendment mean when they said, ‘twice held office?’ An originalist will disqualify Lungu. A…

    2
    1
  8. A modernist will apply the context and admit that Lungu is eligible. We wait to see. The law is a donkey. The Constitutional interpretation is not cast in stone. It is not Science. We have fallible and fickle human beings to depend on. They may need to be nudged by mass protests.

    4
    9
  9. Ba Fred stop wasting time focus on your manifesto if you have one. You have been in politics long enough to know no court in Zambia will stop Lungu from standing. Yes you have been in politics since Garden House in 1991. We can see you just want something that can shine the limelight on you. Zambia’s justice system is not independent from Lungu. Try appealing the original ruling from Malawi.

    11
    1
  10. Lusaka times can you please get rid of these scamming spamming advertisers other wise I will leave this website and you will lose all your traffic as people only come here to read my views.

    7
    15
  11. You are right sir, the PF fools are the only ones thinking Lungu qualifies to run 2021.
    This is not 2016… No one is above the constitutional law.

  12. What Edgar and his accomplices in this illegal scheme must understand is that there will consequences to him and to those that’ll facilitate this illegality in the nearest future. Indications have begun to manifest that we’ll have a turbulent election next year, just observe how emotional the voter registration is

    8
    7
  13. If Lungu’s Eligibility Case ends up in Concourt the Ruling is obvious. Don’t expect Professionalism and Objectivity from this State Captured Court. Time will tell.

    2
    1
  14. Lusaka times please do as Kaizer says because we like reading his foolishness. He has no brain matter but he is very entertaining.

    3
    1
  15. In heydays, ba Fred feasted on FTJs legacy and took advantage of our ignorance. Today, no one values his opinion. Balipwa ba yama ba Fred and he’s trying to do a 3rdterm 2.0 which is clearly not exciting the public-had you remained neutral and stuck to journalism ethics, we would still listen to you, uncle……

  16. Hakainde’s brother in-law what a way to waste time. You know very well that there is no third term for ECL. The constitution is clear on “term” we also know about the rule of natural justice. We also know that the judges are appointed by the head of state and not ECL per ser. So there is no need to indeeicate that in your argument because it is obvious. We know that some lawyers are leaning on being sworn twice, how else can someone become a head of state without being sworn in? . In the same vein the constitution describes the “term” which everyone understands by now (3 years + or a straight 5 years). Our constitution allows for no term (0 term). These are the things that the constitution court will look at. Being sworn in is zeroed by the the definition of “term” it is not…

    2
    1
  17. … . Our constitution allows for no term (0 term). These are the things that the constitution court will look at. Being sworn in is zeroed by the the definition of “term” it is not applied in Isolation. So people can waste time as much as they want, but the incumbent knows very well what is in it for him. Fortunately for him he is also a lawyer. Having said thi, after this case has been considered then a precedence will have been set and this seemingly lacuna will be no more.

  18. I am surprised to read this, and that too from a person like Fred M’membe! He is a seasoned politician and learned person who knows the Constitution better than most of the other politicians. He should have taken some information about the matter before reacting. The matter had already been debated and deliberated at the Constitutional Court, and a judgement too, has been delivered on it. What does he want to tell the court now?

    4
    1
  19. Sir, the confidence is not unfounded. Do you think a lawyer like Edgar Lungu doesn’t know all these things? He is very much aware of the legal intricacies more than any other politician. So, don’t worry. The matter has already been resolved.

    1
    1
  20. What an absurd argument it is! How does appointment of a judge affect his abilities? Are you trying to say that the learned judges in Zambia are not fit to hold the position? This is contempt of court, sir! Hope you are aware of that.

  21. There was legal remedy available for all those who had doubts over term of President Lungu. They explored that option and moved Constitutional Court. It is utterly disregard for the judiciary to raise the questions now.

  22. The constitutional court did nor deliberate on President Lungu’s issue but rather on what makes a term. However ,the constitution bars anyone who had held office twice to contest again. infact on the sworn statement that the Presidential candidates make their is a statement which says and i quote ” I have never been elected twice” end of quote. Therefore the truth is President Lungu is not eligible to stand in 2021 general elections and the PF risk having to Presidential candidate.

  23. Fred M’membe, Mutembo Nchito, Mark Chona and Max Nkole – what they did against FJT Chiluba, was criminal. With the help of President Mwanawasa, they behaved as if they were above the law.

    Chiluba may have had his mistakes but at least he deserved to be treated fairly under the law. He wasn’t. Fred and the gang took over the Office of Public Prosecution and even manipulated LAZ.

    DPP Chalwe Mchenga (now Judge) and before him DPP Mukelebai Mukelebai tried to fight them (the cartel) on behalf of Zambians but failed. Mukelebai was driven into exile (to SA) where he died a mysterious death.

    So if there’s anyone who can talk about the respect for the constitution and the law it’s not M’membe. Zambians should stay away from him. Not only is he a spent force, nobody wants to turn…

    2
    1
  24. Do you mean to say the judiciary is not independent? Then just check out various judgements against members of the ruling party. Had the judiciary been not independent, many cases filed against the opposition leaders would have been decided against them in no time. What are you saying sir? Not expected from you at all.

  25. Mmembe is just after revenge for the lost post newspaper. The Concourt is clear in its judgement. Its stupidity to return the same case to the same court with the same arguments. Bushilu.

    2
    1
  26. Petitioners need not wait for any Candidate to file in their Nominations when they can immediately and now so do under the Administrative Law Petitioners could sue the ECZ to obtain a Mandatory Order of Injunction, not for them accept the Nomination papers the Prospective Candidate who has already indicated his intentions, and having been Elected twice into Office and has Twice Held Office.

    All Presidential qualifications must be satisfied independently of each other. The Term of Office Provision is not the same as the Holding Office Provision. Besides, the definition of Term of Office Provision only applies to qualifications of a Vice President or a person Elected into Office of President in place of the Vice President. The current Head of State has not been a Vice President, so…

  27. Meembe !! This is F00LISHNESS from you. This is not third term and you know that very well. If you think you are good, just stand and defeat Lungu on the ballot. You are scared and using dirty laundry. Zambia knows who Meembe is. You are a crook, thief, liar and hateful

Comments are closed.

- Advertisement -
Loading...
- Advertisement -

Latest News

Let the Students at UNZA sit for Exams-HH

By Hakainde Hichilema UPND President Yet again, the UNZA administration is refusing to allow students to sit for their final...
- Advertisement -

More Articles In This Category

- Advertisement -