By Prof Chaloka Beyani, Prof Melvin Mbao and Prof Cephas Lumina
Republic of Zambia, Summary of the Recommendations of the Mwanakatwe Constitutional Review Commission and Government Reaction to the Report (1995)
1. The purpose of this submission is to provide the Constitutional Court of Zambia with additional information in respect of legal principles as well as local and comparative constitutional jurisprudence to assist the Court reach a decision in accordance with its mandate as set out in the Constitution of Zambia 1991 as amended (‘the Constitution’), in particular Article 128(1) read together with Articles 9(1)(a) and 118 (1) and (2).
2. We (Professors Chaloka Beyani, Cephas Lumina and Melvin Mbao) believe that the case raises important questions, including the correct approach to constitutional interpretation, the power of the Court to revisit its previous decisions, application of the principle of res judicata, intervention of the Attorney-General in proceedings between private parties before the Court, the purpose of Article 52(1), the rights conferred under Article 52(4) and the purpose of Article 106(3) of the Constitution.
3. The submission identifies legal standards pertinent to the foregoing questions.
4. In this brief, we rely upon and adopt the facts and procedural history as presented in the Petition. The Petition – together with the First Respondent’s Answer to the Petition, the Second Respondent’s Summons for Joinder and Affidavit in support thereof and Heads of Argument, and the Second Respondent’s Combined Answer to the Petition – were made available to us by the Petitioners for the purposes of this submission.
5. Based on analysis of the pertinent legal principles and case law, the submission concludes that:
(a) The Second Respondent has been improperly enjoined to the proceedings and, accordingly, his name should be struck out.
(b) The cause of action and issues in these proceedings are not res judicata.
(c) The present proceedings do not constitute an abuse of process by the Petitioners.
(d) The decision of the Court in Pule and Others v Attorney-General and Others (‘Pule’) is incorrect, unsound, legally fictitious and should, in the interests of justice and in keeping with the constitutional values and principles, be reversed.
(e) By filing his nomination paper to a returning officer supported by an affidavit stating that he is qualified for nomination as President, the First Respondent, who has twice been elected to and held the office of President of the Republic of Zambia, has contravened Article 52(1) of the Constitution and/or is not eligible for election as President under Article 106(3) of the Constitution.
II. IDENTITY AND INTEREST OF AMICI CURIAE
6. This Amicus Brief is respectfully submitted by three (3) Professors of Law, namely Chaloka Beyani, Cephas Lumina and Melvin Mbao – all Zambian nationals. These Professors have considerable experience in constitutional law and other areas of law pertinent to the Petition, having taught in these areas at universities in Zambia and other countries. Amici have no personal interest in the outcome of these proceedings but a professional interest in seeing that this Court fulfils its mandate (as ‘guardian of the Constitution’) under Article 128 of the Constitution in a manner that promotes the values and principles enshrined in the Constitution, in particular the supremacy of the Constitution, the sovereign will of the people, democracy, constitutionalism, good governance and accountability, as well as the development of the law.
(a) Chaloka Beyani is a Professor of Law at London School of Economics (LSE) and a member of the Expert Advisory Group to the United Nations Secretary General’s High-Level Panel on Internal Displacement. He has taught public law at the University of Zambia (1983-1988), Oxford University (1992-1995) and Public International Law in the Department of Law at LSE since 1996. He has served as the United Nations Special Rapporteur on the Human Rights of Internally Displaced Persons (2010-2016), a member of the High-Level Panel of Eminent Persons of the African Union on the Formation of an African Union Government in 2008, a member of the Committee of Experts on Constitutional Review of the Republic of Kenya that drafted the Constitution of Kenya 2010 and also drafted amendments to the constitution of Mozambique in 2019 to implement the outcome of the agreement on devolution in the peace process. He has drafted and negotiated the adoption of the African Union Convention for the Protection and Assistance of Internally Displaced Persons 2009 and 11 peace treaties under the framework of the Pact on Peace, Stability and Development of the Great Lakes Region 2006. Professor Beyani holds a Bachelor of Laws (LLB) and a Master of Laws (LLM) awarded by the University of Zambia in 1982 and 1984, respectively, and a Doctor of Philosophy (DPhil) in law from Oxford University, awarded in 1992.
(b) Cephas Lumina is an Advocate of the Superior Courts of Zambia (admitted December 1986) and, formerly, a full Research Professor of Constitutional and Human Rights Law at the University of Fort Hare, South Africa. He has taught Constitutional Law at the Universities of eSwatini and KwaZulu-Natal in South Africa and has served as an Extra-Ordinary Professor of Human Rights Law at the University of Pretoria (2010-2018) and a Visiting Professor at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law in Sweden (2007-2008). He serves a Visiting Professor at the University of Lusaka where he convenes and lectures the LLM course in Constitutional and Human Rights Litigation. Professor Lumina has published in various areas of law, including on constitutionalism in Zambia. His most recent publication is a contribution on the 2001 third presidential term bid in Zambia to a volume on presidential term limits in Africa. He holds a Bachelor of Laws (with Merit) from the University of Zambia (1985), a Master of Laws (LLM) from the University of Essex (United Kingdom, 1993), a Doctor of philosophy (PhD) in Law from Griffith University (Australia, 1999) and a Postgraduate Diploma in the International Protection of Human Rights from Abo Akademi University (Finland, 2003).
(c) Melvin Mbao is an Emeritus Professor of Public Law and Legal Philosophy and lately, Executive Dean of the Faculty of Law, North West University, South Africa. He has taught Administrative Law, Constitutional Law, Human Rights and Public International Law at undergraduate and postgraduate levels at the Universities of Zambia and Botswana and at North West University. He has also supervised LLM and LLD research in various areas of Public Law and Human Rights, and has published widely and presented numerous conference papers in the broad areas of Constitutional Law and Human Rights. Professor Mbao served as a resource person to the Technical Committee on Drafting the Zambian Constitution (established in November 2011) and is currently co-authoring a book on ‘Constitutional Law in Zambia.’ He holds an LLB (with Distinction) from the University of Zambia and Master of Philosophy and PhD degrees from Cambridge University.
7. This Brief is filed pursuant to section 12 of the Constitutional Court Act, No. 8 of 2016.
III. SUMMARY OF ARGUMENT
8. The submission begins with an outline of what we believe to be the correct approach to constitutional interpretation and its implications for these proceedings. The submission then addresses several key issues. First, it is contended that the Second Respondent has no identifiable stake, legal interest or demonstrated duty to assist the Court in these proceedings and that, accordingly, he has been improperly enjoined. Secondly, the cause of action and key issue in the proceedings are not identical to those in Pule and are thus not res judicata. Moreover, the parties or privies in the present proceedings are not the same as those in Pule. Thirdly, the proceedings do not constitute an abuse of process as neither the issue of the alleged contravention by the First Respondent of Articles 52(1) and 106(3) of the Constitution nor his eligibility under Article 106(3) has ever been determined in clear and definitive terms by this Court. Fourth, Pule was incorrectly and prospectively decided, is unsafe, legally fictitious and has created complexity rather than clarity regarding the import of Article 106 of the Constitution and ought to be reconsidered. Finally, by filing his nomination paper to a returning officer supported by an affidavit stating that he is qualified for nomination as President, the First Respondent, who has twice been elected to and held the office of President of the Republic of Zambia, has contravened Article 52(1) of the Constitution and/or is not eligible for election as President in Article 106(3) of the Constitution.
A. The correct approach to constitutional interpretation
9. The interpretation of a constitution entails that a meaning is attached to its provisions and the meaning of a particular provision is determined by employing several complementary and interrelated approaches.
10. In several of its decisions, this Court has acknowledged:
(a) The supremacy of the Constitution in the Zambian legal order and that the validity of all laws and actions must be assessed against it.
(b) Its duty under Article 267(1) of the Constitution to interpret the Constitution in a manner that gives effect to the Bill of Rights, permits development of the law, and contributes to good governance: see, e.g., Kapoko v The People; Katuka and Another v Attorney-General and Others.
(c) That the constitutional values and principles set out in Article 8 of the Constitution apply to the interpretation of the Constitution: see Law Association of Zambia and Another v Attorney-General. See also Constitution, Articles 9(1)(a) and 118(2)(f).
(d) The Constitution must be given a generous and purposive interpretation and that constitutional provisions must be construed in the light of the Constitution as a whole: see Maambo and Others v The People.
11. Comparative constitutional case law indicates that a ‘purposive’ interpretation of a constitution entails a focus on the ‘purpose’ (or object) of the provision in question, not primarily on ascertaining the ‘intention of the legislature.’ In other words, in purposive interpretation, the text’s ‘purpose’ is the criterion for establishing which of the semantic meanings yields the legal meaning. In practice, this requires that the interpreter consider the terms and spirit of the particular provision, its purpose, the values, and principles underpinning it, the intention of the framers and the context (both textual and extra-textual): see, e.g., Shabalala and Others v Attorney-General of Transvaal and Another; Matiso v Commanding Officer, Port Elizabeth Prison; R v Big M Drug Mart Ltd.
12. In several of its decisions (including Pule), this Court, while acknowledging that a supreme constitution must be given a ‘purposive’ interpretation, appears to follow the literal (or ‘plain meaning’) and golden rules of interpretation. Several of its judgments contain numerous references to the ‘literal rule’, ‘plain meaning,’ ‘ordinary and grammatical meaning,’ ‘ambiguity and absurdity’, etc. According to the Court:
‘The primary principle in interpreting the Constitution is that the meaning of the text should be derived from the plain meaning of the language used. Only where there is ambiguity or where the literal interpretation will lead to absurdity should other principles of interpretation be resorted to’ (our emphasis).
13. We respectfully submit that this approach is incorrect for the following reasons:
(a) The ‘literal’ and ‘golden’ rules developed in a system in which parliament is sovereign (i.e., parliamentary sovereignty) and the interpretive role of the courts is restricted to giving effect to the ‘intention of the legislature.’
(b) It is generally accepted that a literal and technical approach that focuses exclusively on the literal meaning of the phrases or ascertaining the ‘intention of the legislature’ has no application in a legal order where the constitution is supreme and all branches of government, including parliament, are subject to it: see, e.g., Matiso v Commanding Officer, Port Elizabeth Prison; Government of the Republic of Namibia & Another v Cultura 2000 & Another. See also the Preamble and Article 1(1), (2) and (3) of the Constitution.
(c) Constitutional provisions (including those in our Constitution) tend to be formulated in abstract terms and cannot, therefore, be construed in the same manner as statutes whose provisions tend to be formulated in more concrete terms. It is for this reason that a supreme constitution must be given a generous and purposive interpretation (see Shabalala and Others v Attorney-General of Transvaal and Another ).
(d) Where a court reads a text literally, it risks missing the spirit and purpose of the provision in question. In Ndyanabo v Attorney-General, the Tanzanian Court of Appeal held that:
‘The Constitution … is a living instrument with a soul and consciousness of its own as reflected in the preamble and fundamental objectives and directive principles of state policy. Courts must therefore endeavour to avoid crippling it by construing it technically or in a narrow spirit. It must be construed in tune with the lofty purposes for which its makers framed it. So construed, the instrument becomes a solid foundation of democracy and the rule of law. A timorous and unimaginable exercise of judicial power of constitutional interpretation leaves the Constitution a stale and sterile document.’
14. Thus, while the starting point for interpretation is the text of the provision to be interpreted (grammatical interpretation), such provision must be interpreted by also taking into consideration the constitution as a whole (contextual or systematic interpretation), the values and principles underpinning the Constitution and the purpose of the constitution or particular provision (teleological interpretation), the history preceding the adoption of the provision in question or the constitution (historical interpretation) and international and foreign law (comparative interpretation): see S v Makwanyane; Ndii and Others v Attorney-General and Others.
15. It should be noted that the ‘context’ (as used in purposive constitutional interpretation) includes the historical factors that led to the adoption of the Constitution and the social and political environment in which the Constitution operates. In S v Makwanyane, the South African Constitutional Court stated:
‘Our Constitution was the product of negotiations conducted at the Multi-Party Negotiating Process. The final draft adopted by the forums of the Multi-Party Negotiating Process was, with few changes adopted by Parliament. The Multi-Party Negotiating Process was advised by technical committees, and the reports of these committees on the drafts are the equivalent of the travaux préparatoires, relied upon by international tribunals. Such background material can provide a context for the interpretation of the Constitution and, where it serves that purpose, I can see no reason why such evidence should be excluded. The precise nature of the evidence and the purpose for which it may be tendered, will determine the weight to be given to it.’
16. In CIC Insurance Ltd v Bankstown Football Club Ltd, the Australian High Court emphasised that ‘[t]he modern approach to interpretation … insists that the context be considered in the first instance, not merely at some later stage when an ambiguity might be though to arise’ (our emphasis).
17. In the present case, since the demise of the One-Party State Constitution in 1991, the historical factors militate against a president holding office in perpetuity and attempting to manipulate the Constitution to do so.
18. Finally, it bears emphasis that the approaches outlined are complementary and interrelated and should be applied in conjunction with one another. In addition, the nature and number of the sources used and the way they are used has a decisive bearing on the outcome of a particular case.
B. The Second Respondent has been improperly joined to the proceedings and, accordingly, his name should be struck out
19. We respectfully submit that the Second Respondent has been improperly joined to these proceedings because he has no identifiable stake, legal interest or demonstrated duty to assist the court effectively and completely adjudicate on all the issues in the proceedings.
20. In making the submissions hereunder, we note that the Second Respondent is the Attorney-General of the Republic of Zambia and he has been enjoined in that capacity. The Attorney-General’s office is established in terms of Article 177(1) of the Constitution. As provided in Article 177(5), the Attorney-General is ‘the chief legal adviser to the Government’ whose functions include to ‘represent the Government in civil proceedings to which the Government is a party’ (emphasis).
21. Article 177(5)(c) is worded in clear and unambiguous terms. The phrase ‘representing the Government’ does not and cannot be taken to mean representing a presidential candidate regardless of whether such a candidate is the incumbent.
22. The First Respondent filed his nomination to contest the election scheduled for 12 August 2021, which is at issue in these proceedings, as a candidate of the Patriotic Front, not in his capacity as current President of Zambia.
The test for joinder
23. The fundamental aspect of standing (including as an intervenor or interested party) focuses on the party, not on the issue to be litigated: see Flast v Cohen.
24. In general, a case may be appropriate for intervention where: (a) it raises one or more issues of public importance; and (ii) there is a risk that the public interest may not be sufficiently well-addressed by the submissions of the parties alone: see R v Home Secretary ex parte T & V; Kenya Medical Laboratory Technicians and Technologists Board and 6 Others v Attorney General and 4 Others.
25. It is trite law that the party that is alleged to be a necessary party for purposes of joinder must have a legal interest in the subject matter of the litigation which may be affected prejudicially by the judgment of the court in the proceedings concerned. In Kenya Medical Laboratory Technicians and Technologists Board and 6 Others v Attorney General and 4 Others the High Court of Kenya (Constitutional and Human Rights Division) held that an applicant for joinder must demonstrate that he or she has an identifiable stake, legal interest and duty to assist the court effectively and completely adjudicate on all the issues in the proceedings. See also Mwau v Haysom and 2 Others; Attorney-General and 2 Others (Interested Parties); Katuka and Another v Attorney-General and Others; Klaase v van der Merwe NO.
26. In Amon v Raphael Tuck & Sons Ltd, the court stated that:
‘A person is legally interested in the proceedings only if he can say that it may lead to a result that will affect him legally, that is, by curtailing his legal rights.’
27. Under the standard reflected in these cases, the Second Respondent has been improperly enjoined to these proceedings.
28. In applying for joinder under Order V, rule 4(b) of the Constitutional Court Rules, 2016, the Second Respondent made the dubious claim that ‘it is imperative’ that, as ‘Chief Legal Adviser to the Government,’ he be enjoined to ‘the proceedings in order to represent Government interests in this matter.’ He did not explain what those ‘Government interests’ are. Nevertheless, his contention is fundamentally flawed for two main reasons. First, while his constitutional mandate as ‘chief legal adviser to the Government’ includes representing the Government in civil proceedings to which the Government is a party, the Government is not a party to these proceedings nor is it contesting the Petition. Secondly, representing ‘Government interests’ (whatever those might be) is not a recognised basis for considering an application for joinder.
29. The Second Respondent also contended that the First Respondent (as current President of the Republic of Zambia) ‘has a huge following and that having filed in his nomination papers to contest as Republican President in the election set for 12th August, 2021, the public is interested in the outcome of the Petition’ (our emphasis). In effect, the Second Respondent incorrectly equated public curiosity or interest in the outcome of this matter with the ‘public interest’.
30. Public curiosity in the outcome of private proceedings in which one of the parties happens to be President of the Republic (although he is a party to these proceedings in his capacity as a candidate of the Patriotic Front party for election to the office of president) does not amount to ‘public interest’ for the purposes of joinder. In Glenister v President of the Republic of South Africa, Langa CJ observed (without making a finding on the issue) that ‘[t]o support his claim that he acts in the public interest, the applicant refers to the ‘massive amount’ of public interest in the matte, as evidenced by the public opinion polls and media reports.’ As du Plessis et al correctly argue, ‘[w]hile there may often be substantial public interest in constitutional matters – it does not follow that any particular person automatically has standing in the public interest.’
31. In Adams v Adams, it was held that the Attorney-General may intervene, with leave of the court, in litigation between private parties where the litigation involves a crown prerogative or raises any question of public policy on which the executive may have a view it wishes to bring to the attention of the court. However, this is not the case here: there is no prerogative or public policy question involved in the present petition.
32. In sum, the Second Respondent did not meet the standard test for joinder. In particular, he had no identifiable stake, legal interest, or duty to assist the court in these proceedings. Moreover, he did not demonstrate how the outcome of the present proceedings will affect him or the Government.
33. We further respectfully submit that joinder of the Second Respondent contravenes the accepted principle that a plaintiff is dominus litis, and can sue whomever he or she thinks he or she will obtain relief from; and that a plaintiff cannot be forced to sue somebody whom he or she has not chosen to sue: Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others.
34. In Fawehinmi v Nigerian Bar Association (No. 1), it was held that a person against whom the plaintiff has no cause of action and against whom he has made no claim cannot be joined as a co-defendant and/or made a party to the action. The Petitioners in the present proceedings have no cause of action against the Second Respondent or the Government (which he represents in civil proceedings). On this basis alone, he ought not to have been joined as a respondent in these proceedings.
35. We are, of course, aware that the overriding consideration is whether it was in the interests of justice for a party to intervene in the litigation. However, we respectfully submit that the Second Respondent has been improperly enjoined to these proceedings and there are, in the circumstances outlined above, no interests of justice to be served by allowing the Second Respondent – whose constitutionally mandated function is to act as chief legal adviser to the Government and to represent the Government in civil proceedings to which it is a party – to participate in these private proceedings.
36. Accordingly, we urge this Court to strike out the name of the Second Respondent pursuant to Order V, rule 4(a) of the Constitutional Court Rules, 2016.
The Attorney-General as an ‘interested party’
37. While we strongly urge the Court to strike out the name of the Second Respondent for misjoinder, we are of the view that it may be possible for the Second Respondent to participate as an ‘interested party’ subject to his satisfying the test for such joinder. In this context, the Kenyan Supreme Court has provided guidance on the nature and participation of the Attorney-General in proceedings involving electoral petitions before a superior Court of equivalent standing such as the Constitutional Court of Zambia. We urge the Court to take consideration of the Kenyan Supreme Court’s position on the matter.
38. In Odinga I and II, the Attorney-General of Kenya applied and was joined to the proceedings but only as amicus curiae. In its decision to enjoin the Attorney-General following his application to join the proceedings as amicus curiae in Odinga I, the Supreme Court stated that:
(14) [T]he Attorney-General, is the custodian of the legal instruments of the Executive Branch, and the recognised advisor of the State in matters of public interest. Secondly, and interlinked with the foregoing point, the said office is the main player in the performance of the Executive’s role vis-a-vis the operationalization of the Constitution. Thirdly, the Constitution expressly provides that, in certain instances, the Attorney-General may obtain the Court’s permission to appear as amicus. Fourthly, the Court, which is the custodian of rules of validity, propriety and fair play under the Constitution and the law, remains in charge, in regulating such precise role as the Attorney-General may play if admitted as amicus curiae’ (our emphasis).
39. However, in Odinga II, although the Supreme Court of Kenya also enjoined the Attorney-General as amicus curiae following his application, it was guarded in doing so and did not grant the Attorney-General audience on all the issues on which he had sought audience because he had appeared as a petitioner before the same Court in a previous related case:
‘(15) While we appreciate that the Attorney General will enrich the material placed before this Court, on issues of law, relevant in determining the Petition, we find ourselves guarded against granting the Attorney General leave to address all the issues proposed and for good reason.
 The Attorney General was the 4th Respondent in the Maina Kiai case and opposed that Petition in various respects. He has however listed the issue: what was the effect of the jurisprudence enunciated by the Court of Appeal in the case of IEBC- vs- Maina Kiai & 4 Others (Civil Appeal No. 105 of 2017) on how IEBC conducted the presidential election in issue? as one of the proposed questions to be addressed in the amicus brief. We recognize that instances such as, call for intervention and guidance by Courts, and this Court in particular, while enforcing the provisions of Article 156(5) of the Constitution and Section 7(1) and (2) of the Office of the Attorney General Act, 2012. Such an intervention is indeed permissible under Section 7(2) (b) of the Office of the Attorney General Act. Permitting the Attorney General to address us on this issue, would, with respect, be allowing the Attorney General to re-litigate issues in a matter to which he was an active party to the adversarial proceedings and in which he preferred a clear position for or against a party which is also before this Court, directly or by association. This bears the risk of prejudicing the Party (ies) concerned negating the core principle that justice must not only be done, but be seen to be done.’
40. In the event this Court considers enjoining the Second Respondent to these proceedings as amicus curiae, we urge the Court to do so on the basis that his participation be confined to issues which had not arisen previously in the Pule and Kapalasa cases in which he participated as respondent.
41. Nevertheless, we reiterate our position that the Second Respondent has been improperly enjoined, and his name should be struck out from these proceedings in accordance with Order V, rule 4(a) of the Constitutional Court Rules, because justice must not only be done but be seen to be done by this Court.
Discretion of the Court
42. It is trite that the exercise of the Court’s discretion, including that in terms of Order V Rules 4(b) and 6, is not absolute (as the Attorney-General incorrectly suggests): it is constrained by, inter alia, the supremacy of the Constitution, the rule of law, legislation, precedent, etc.
43. Regarding the exercise of judicial discretion in applications for joinder, the High Court of Kenya has observed as follows:
Regarding the exercise of the court’s discretion on its own motion in applications of this nature, like all discretions, it must be exercised judiciously based on sound principles. Importantly, the main purpose of joining parties is to enable the court to deal with matter brought before it and to avoid multiplicity of suits. It is a fundamental consideration that before a person can be joined as party, it must be established that the party has an interest in the case. In addition, it must be clearly demonstrated that the orders sought in the suit would directly and legally affect the party seeking to be enjoined.
C. The cause of action and issues in these proceedings are not res judicata
44. Res judicata as applied in common law jurisdictions covers several distinct legal principles. Key amongst these principles is ‘cause of action estoppel’ and ‘issue estoppel’. Broadly speaking, a plea or defence based on cause of action estoppel, if accepted, prevents a party pursuing a claim which has already been determined by a court of competent jurisdiction in previous litigation between the same parties (or their privies ). Conversely, a plea or defence of issue estoppel, if successful, prevents a party in proceedings from contradicting a finding of fact or law that has already been determined in earlier proceedings between the same parties (or their privies), provided that the determination was central to the decision in those proceedings.
45. The classic distinction between cause of action estoppel and issue estoppel was restated in Arnold v National Westminster Bank plc as follows:
‘Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened.
Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue’ (our emphasis).
46. The foregoing is also the position under Zambian law: see, e.g., Zambia Textiles Ltd (In Liquidation) v Kalemba and Others; and Mpongwe Farms Ltd v Dar Farms and Transport Ltd. See also Molaudzi v S.
47. In brief, the requirements for res judicata are:
(a) there must be a previous judgment by a competent court
(b) between the same parties
(c) based on the same cause of action; and
(d) with respect to the same subject-matter (our emphasis).
See, e.g., Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others.
48. The cause of action and issues in these proceedings are not identical to those in Pule. Moreover, the parties to these proceedings are not the same as the parties in Pule. Neither the Petitioners nor the First Respondent were parties to Pule. Although the Second Respondent was a party to Pule, this is not sufficient for res judicata to apply: the doctrine will not apply where one of the parties is different.
49. It is also notable that Article 52(4) of the Constitution, on the basis of which the Petitioners have brought the present proceedings, was not invoked in Pule.
50. In our considered view, the cause of action in these proceedings arose when the First Respondent filed his nomination paper and supporting affidavit, pursuant to Article 52(1) of the Constitution, for election to the office of President. Conversely, in Pule, there was no live controversy between the parties: The Petitioners had presented a hypothetical question (which the Court incorrectly, we respectfully submit, reformulated) for determination by the Court and, importantly, the First Respondent had not, at that time, declared his intention to stand for re-election as President by filing the prescribed declaration.
51. The core issue in these proceedings concerns the alleged contravention of Articles 52(1) and 106(3) of the Constitution by the First Respondent, having been twice elected and held office as President, through the act of filing his nomination paper supported by an affidavit stating that he is qualified for nomination as candidate for President in the election scheduled for 12 August 2021.
52. Moreover, as we respectfully submit below, we believe Pule (and, by extension, Kapalasa & Another v Attorney-General ) was incorrectly decided and should be reconsidered by this Court.
53. In Masara v Tsepong (Pty) Ltd, the Lesotho Court of Appeal stated that the defence of res judicata requires that the party relying on the plea or defence must establish that the present case and the previous case are based on the same set of facts that have been finalised by a competent court or tribunal by the same parties on the merits of the same cause of action. The Second Respondent has failed to discharge this burden. Other than make references to the Pule and Kapalasa cases, the Second Respondent has not demonstrated that the cause of action, issues or parties in the present proceedings are the same as those in Pule (or Kapalasa).
54. It should also be noted that comparative constitutional jurisprudence indicates that the doctrine of res judicata should not be rigidly applied. In Bafokeng Tribe v Impala Platinum Ltd and Others, it was been held that the principle of res judicata ‘must be carefully delineated and demarcated to prevent hardship and actual injustice to the parties.’ In Amtin Capital Inc v Appliance Recycling Centres of America, the Ontario Court of Appeal stated that the purpose of the principle is to balance the public interest in finality of litigation with the public interest of ensuring a just result on the merits.
55. Furthermore, as comparative jurisprudence shows, the doctrine is not absolute. For example, in Molaudzi, the South African Constitutional Court held that the Court could depart from the doctrine of res judicata where the case at hand demonstrated ‘exceptional circumstances that cry out for flexibility on the part of the Court’ and the interests of justice require the relaxation of the legal principle.
56. We respectfully submit that the plea of res judicata does not apply in these proceedings and accordingly urge the Court to dismiss it.
D. The present Petition does not constitute an abuse of process by the Petitioners
57. In his Combined Answer, the Second Respondent alleges that these proceedings constitute an abuse of proceedings by the Petitioners ‘as they seek to re-litigate the eligibility of His Excellency President Edgar Chagwa Lungu to stand for the position of President in the General Elections set for 12th August 2021’ because ‘the eligibility of the current Republican President, His Excellency Edgar Chagwa Lungu, to stand in the forthcoming general elections has already been determined by this Honourable Court under cause numbers 2017/CCZ/004 (Judgment No. 60 of 2018), 2021/CCZ/0011 and 2021/CCZ/0014, respectively’ (see Combined Answer, paras 2 and 8). The First Respondent makes a similar assertion in his Answer. This contention is plainly incorrect and misguided for the reasons set out below.
The standard for abuse of process
58. Abuse of process refers to the improper use of a legal procedure for a malicious or perverse reason. Case law indicates that ‘purpose’ or ‘motive’ of the litigation are relevant considerations in determining whether there is an abuse of process. In Phillips v Botha, the Supreme Court of South Africa endorsed he definition of ‘abuse of process’ from the Australian case of Varawa v Howard Smith Co Ltd:
‘The term “abuse of process” connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse for this purpose’ (our emphasis).
59. In Beinash v Wixley, the Supreme Court of South Africa held that ‘an abuse of process takes place where the procedures permitted by the rules of the Court to facilitate the pursuit of the truth are used for a purpose extraneous to that objective’ (our emphasis).
60. The above statement was cited with approval by the South African Constitutional Court in Lawyers for Human Rights v Minister in the Presidency.
61. More recently, in Ascendis Animal Health (Pty) Ltd v Merck Sharpe Dohme Corporation & Others, the South African Constitutional Court reiterated that:
‘Abuse of process concerns are motivated by the need to protect the “integrity of the adjudicative functions of courts,” doing so ensures that procedures permitted by the rules of the Court are not used for a purpose extraneous to the truth-seeking objective inherent to the judicial process’ (our emphasis).
62. We respectfully submit that there is no abuse of process by the Petitioners as contended by the Second Respondent for the following reasons.
(a) First, the Petitioners are entitled in terms of Articles 2 and 52(4) of the Constitution to bring this Petition. Under Article 2, the Petitioners have the right and duty to defend the Constitution. By bringing this Petition, the Petitioners are merely exercising their constitutional right and complying with their constitutional duty to defend the Constitution.
(b) Secondly, the Petition alleges a contravention by the First Respondent of the Constitution, in particular Articles 52(1) and 106(3) thereof. As we have argued in Section C above, these issues have never been determined by this Court (that is, the cause of action and issues in these proceedings are not res judicata).
(c) Finally, the Second Respondent has not demonstrated in what respect these proceedings are actuated by improper motive or extraneous considerations on the part of the Petitioners.
Abuse of process by the Second Respondent
63. Conversely, it is in fact the Second Respondent whose intervention in these private proceedings constitutes an abuse of process. As we have argued in section C above, the Second Respondent’s joinder application disclosed no identifiable stake, legal interest or duty to assist the Court and he has been improperly enjoined to these proceedings.
64. It is also plain from the Second Respondent’s Combined Answer that he is not advancing the public interest but rather the interests of the First Respondent who is a party to these proceedings in his private capacity (not as the current President of the Republic).
65. We respectfully submit that the Second Respondent participation in these private proceeding is clearly a meritless attempt to undermine the role of this Court as prescribed in Article 128 of the Constitution, to prevent the Petitioners from lawfully exercising their constitutionally guaranteed rights and to prevent a determination on the merits of issues that have never been determined (or at least determined in clear and definitive terms) by this Court.
66. Furthermore, the Second Respondent’s participation in these proceedings appears to form a pattern of conduct where he has sought to intervene in any proceedings in which the First Respondent’s interests as a private individual are implicated. The Second Respondent’s conduct constitutes a breach of his constitutional mandate as set out in Article 177 of the Constitution and accordingly an abuse of process. Given this pattern of conduct and to preserve the constitutional integrity of the office of the Attorney-General, it is important that this Court expresses its displeasure by issuing an appropriate personal costs order against him.
67. As a public servant who, in terms of Article 177(5)(c) of the Constitution, is only mandated to represent the Government in civil proceedings to which it is a party, the Second Respondent cannot use public resources to represent individuals pursuing personal political interests in their private capacities which in seeking presidential office, candidates do. Accordingly, his participation in these proceedings as a ‘respondent’ constitutes an abuse of office and abuse of process and we urge the Court to express its displeasure by making an adverse costs order personally against the Second Respondent.
E. The Court should reconsider the Pule case as it is incorrect, unsound and has created complexity and controversy rather than clarity regarding the meaning of Article 106(3) of the Constitution
68. We respectfully submit that Pule was incorrectly decided and that rather than provide clarity concerning the meaning of Article 106(3) it has created complexity and controversy as shown, for example, by the Kapalasa case. In our respectful view, the purpose of the interpretive mandate of the Constitutional Court is to provide clear guidance on the meaning of constitutional provisions.
69. We believe the Court misdirected itself on the facts and the law in Pule for the following reasons:
Reformulating the question presented by the Applicants
(a) The Applicants sought determination of the following questions:
(i) Whether His Excellency President Edgar Chagwa Lungu will have served two full terms for purposes of Article 106(3) of the Constitution of Zambia at the expiry of his current term.
(ii) Whether, as a matter of the Constitutional law of the Republic of Zambia, His Excellency President Edgar Chagwa Lungu is eligible for election as President for another 5 year term following his current term of office which commenced on 13th September 2016.
(b) However, the Court reformulated the first question as follows:
Whether in terms of Article 106(3) and (6), a presidential term of office that ran from 25th January, 2015 to 13th September, 2016 and straddled two constitutional regimes can or should be considered as a full term?
(c) In reformulating the question without affording the parties an opportunity to make submissions thereon and basing its decision on the question thus reframed, the Court ignored the accepted principle that a court should restrict its decision to the questions presented by the parties. In Chama and Others v National Pension Scheme Authority and Others, the Supreme Court reiterated that a court has no jurisdiction to set up a different or new case for the parties to a matter before it. It recalled its caution in Atlantic Bakery Ltd v Zambia Electricity Supply Corporation Ltd:
‘[A] court should confine its decision to the questions raised in the pleadings … Litigation is for the parties, not the court. The court has no business extending the boundaries of litigation beyond the scope defined by the parties in their pleadings. In other words, a court has no jurisdiction to set up a different or new case for the parties’ (our emphasis).
(d) We respectfully submit that the Court erred by extending the scope of the issues before it through reformulating the question presented by the Applicants, without affording the parties to make submissions on the Court’s intentions and on the question so reframed, and then basing its answer on the reformulated question. Put differently, the Court overstepped its jurisdiction. Accordingly, the Court should reconsider its decision.
Incorrect approach to interpretation of Article 106(3) in Pule
(a) In Pule, this Court reiterated its view that ‘the starting point in interpreting the constitutional provisions in this matter is the literal rule of interpretation’ and that ‘only where this results in an absurd or ambiguous meaning’ would it ‘resort to the purposive approach’ (our emphasis).
(b) The Court went on to state as follows:
‘[W]hen the Constitution is read holistically, we believe, the intention of the Legislature was that when a person takes over the unexpired term of a previous president, that person should be able to serve a substantial part of the unexpired term in order for such a term to be considered as a full term’ (our emphasis).’
(c) While the Court briefly outlined the historical background of the country’s constitutional development and reviewed pertinent provisions concerning presidential limits (pages 62-73 of the Pule judgment), it did not review any of the pre-enactment background material which constitute the historical underpinnings of Article 106(3), including earlier drafts, the reports of the various national constitutional review commissions, technical committees and other relevant bodies.
(d) The Court made several references to the ‘intention of the legislature.’ This suggests that the interpretation of Article 106(3) of the Constitution advanced by this Court was based on a literal approach (meant to ascertain the ‘intention of the legislature’), which as we have stated above, is not the correct approach to interpreting a supreme constitution.
(e) In our respectful view, the Court’s approach was incorrect and led to an interpretation of Article 106(3) that is inconsistent with its purpose as well as the values and principles enshrined in the Constitution, notably democracy, constitutionalism, good governance, and sovereignty of the people.
(f) A ‘purposive’ interpretation of Article 106(3) focusing on the purpose of Article 106(3), rather than the ‘intention of the legislature’, and employing the complementary sources of constitutional interpretation we have outlined above (including the historical underpinnings of the provision) in fact indicates that the purpose of Article 106(3) is to prevent ‘oppressive rule’ or rule in perpetuity by ensuring that a person did not serve more than two terms of an aggregate period not exceeding 10 years beginning from the date when they first assumed the office of President.
(g) As the comparative constitutional jurisprudence which we have referred to in Section A of this Brief shows, the background material (travaux préparatoires) is an important part of the constitutional context and a core component of the purposive approach to constitutional interpretation. Appropriate review of this background material would have assisted the Court to understand the rationale for term limitations in our Constitution and the purpose of Article 106(3), in particular.
The legal fiction of ‘two constitutional regimes’
(a) In Pule, the Court made several references to the notion of ‘two constitutional regimes’ (see pages 68 and 81-83 of the judgment). It seems to us that this notion was pivotal to the Court’s conclusion that:
‘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 of the Constitution in its entirety, our answer to the question that we rephrased is that the Presidential term of office that ran from 25th January, 2015 to 13th September, 2016and straddled two constitutional regimes cannot be considered as a full term.’
(b) We respectfully submit that the notion that the first term of office served by the incumbent president ‘straddled two constitutional regimes’ and thus required some form of transitional wording is legally fictitious and untenable. It is based, with respect, on an insufficient or incorrect understanding of the means of constitutional change and their implications.
(c) There are two main means of constitutional change: ‘replacement’ and ‘amendment.’ These have different constitutional implications. ‘Replacement’ formally displaces an existing constitution. Importantly, replacement changes the basic structure of the state and political regime whereas amendment modifies procedural details and policy issues in the constitution.
(d) In the constitutional history of Zambia, only two Constitutions – the Independence Constitution of 1964 and the ‘One-Party State’ Constitution of 1973 – have ever been replaced. The Constitution of 1991 (which introduced presidential term limits) has merely been amended, in 1996 and 2016. Neither the 1996 nor 2016 amendment has changed the basic structure of the state and political system. The 1991 Constitution remains the Constitution applicable in Zambia (albeit with amendments). It is therefore incorrect to speak of ‘two constitutional regimes.’
(e) We respectfully submit that the Court’s conclusion that ‘[t]he Presidential term of office that ran from 25th January, 2015 to 13th September, 2016 and straddled two constitutional regimes cannot be considered as a full term’ is based on the erroneous assumption that there were ‘two constitutional regimes’ under consideration is incorrect and should be revisited.
(f) It should be noted that the three-year rule (in Article 106(6) of the Constitution applies only in situations where: (i) the office of President falls vacant and the vice-president automatically takes over; and (ii) when an election is held because the vice-president who should take over to serve the remainder of the president’s term is their unwilling or unable to do so. This rule did not apply in 2015 (pre-constitutional amendment) when the First Respondent was first elected to the office of President. Importantly, the First Respondent did not assume the presidency because he was vice-president or as a result of an election held because the then vice-president could not, for any reason, assume the office of President.
(g) The Pule decision in effect retroactively applies Article 106(3) in contravention of the principle that, unless expressly stated to be so, legislation does not apply retroactively or retrospectively. In this regard, it is important to underscore that Article 106(6) applies as from the date the Constitution of Zambia (Amendment) Act, No. 2 of 2016 came into effect, namely 5 January 2016 and has no bearing on the First Respondent’s first term of office.
(h) In effect, the Pule decision improperly ‘resets’ the clock in favour of the First Respondent and, in doing so, undermines the purpose of Article 106(3) and the constitutional values of democracy, constitutionalism and good governance, and for this reason also, should be reconsidered.
The power of the Court to reverse its previous decisions
70. The ‘doctrine of precedent’ requires that a legal principle that has been established by a superior court should be followed in other similar cases by that court and other courts.
71. Under Article 125(3) of the Constitution, the Supreme Court is bound by its decisions but may reconsider them ‘in the interests of justice and development of jurisprudence.’ There is no equivalent provision in relation to this Court (the Constitutional Court). But since, according to Article 121, the Supreme Court and this Court rank equivalently, the question is whether Article 125(3) applies mutatis mutandis to this Court. We submit that this provision must apply to this Court’s exercise of its appellate jurisdiction in terms of Article 128(1)(d), its judicial review and interpretive jurisdiction and as a matter of public law when its decisions reveal jurisdictional errors of law on the face of the record as was the case in Hichilema and Another v Lungu and Others. That decision demonstrates that this Court can reconsider and reverse its own decisions.
72. Comparative constitutional jurisprudence from, inter alia, India, the United Kingdom, the United States and South Africa, indicates that a court of final jurisdiction (such as this Court) may, in appropriate circumstances, reconsider and reverse its earlier decision.
73. In India, a binding decision of the Supreme Court (or High Court) can be reviewed by means of a review petition. Even after dismissal of a review petition, the Supreme Court may consider a ‘curative’ to prevent abuse of its process and to a cure gross miscarriage of justice. In the United States, the Supreme Court will reconsider its previous decisions only ‘for compelling reasons’ In Cassel & Co Ltd v Broome (No. 2), the court set aside its earlier order for costs because it had not afforded the parties to address it on the issue of the award of costs. In Camps Bay Ratepayers and Residents Association and Another v Harrison and Another, the Constitutional Court of South Africa stated that a court of final jurisdiction may depart from precedent only if it is convinced that the previous decision was ‘clearly wrong.’ In R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet (‘Pinochet’), the House of Lords held that it had inherent and unfettered jurisdiction in appropriate cases to rescind or vary an earlier of the House.
74. In Chibote Ltd and Others v Meridien Biao Bank (Zambia) Ltd (In Liquidation), the Supreme Court cited Pinochet, stating that it agreed with the House of Lords on the unfettered inherent jurisdiction of the court. In Finsbury Investments and Another v Ventriglia and Another, the Supreme Court stated that it could reopen its final decision or rescind or vary such decision in exceptional circumstances and where it is necessary to do so in order to avoid a real injustice. We respectfully submit that not revisiting the Pule case would be a ‘real injustice’ to the Zambian people.
75. We also note that while the Court stated (in Pule) that it would address the two questions posed by the Applicants ‘in the order in which they (were) presented,’ it did not address the second question at all, stating that ‘the second question (had) become otiose.’ In view, this stance by the Court has, to a significant degree, contributed to the lack of clarity concerning the meaning of and continuing controversy concerning the true import of Article 106(3) of the Constitution.
76. As we have stated above, our considered view is that Pule was. We therefore respectfully urge this Court to reconsider that decision, in particular its interpretation of Article 106(3) of the Constitution.
F. By filing his nomination for election as President in the election scheduled for 12 August 2021, in circumstances where he has twice been elected to and held the office of President of the Republic, the First Respondent has contravened Article 52(1) of the Constitution and/or is not eligible for election as President under Article 106(3) of the Constitution
77. In making the submissions in this section, we wish to respectfully remind the Court that its ‘authority derives from the people of Zambia and shall be exercised in a just manner and such exercise shall promote accountability’ and that, in exercise of its authority, this Court has a duty to adhere to the principles set out in Article 118(2) of the Constitution, in particular to do justice to all without discrimination and to promote the values and principles of the Constitution.
78. The very essence of the judicial authority of Constitutional Courts deriving authority from the sovereignty of the people is to protect constitutional democracy as the sovereign will of the people expressed in such Constitutions. Constitutional Courts are created and exist to protect the people by safeguarding their Constitution.
79. Therefore, the protection of the sovereignty of the people and the safeguarding of their democracy as enshrined in the Constitution, is a sacrosanct judicial duty of this Court.
The transcendental question
80. The Petition before this court involves a transcendental question of constitutional law arising under Article 106(3) of the Constitution (as amended), namely whether the First Respondent, having twice held office as President of the Republic, is eligible to stand for election as President in the 12 August 2021 elections.
81. The transcendental constitutional question that this Court is petitioned to determine arises from the combined application of Articles 52 and 106 of the Constitution that enshrine constitutional democracy as the sovereign will of the people by pre-empting the immediate or creeping advent of authoritarianism that is antithetical to constitutional democracy. As a safeguard against this eventuality, Article 52(4) of the Constitution empowers ‘any person’ to challenge the nomination of a candidate for election as President, Member of Parliament or councillor.
82. On 17 May 2021, the First Respondent, Mr Edgar Chagwa Lungu, filed his nomination to be a presidential candidate in the general elections scheduled for 12 August 2021, together with an affidavit stating that he is qualified for such nomination. The reference to Mr Edgar Chagwa Lungu is made with respect to his nomination as a candidate in the stated forthcoming general election, which distinguishes the candidate from the incumbent President Edgar Chagwa Lungu.
83. Acting on the basis of Article 52(2), a returning officer of the Electoral Commission of Zambia did not duly reject the nomination papers of the First Respondent, Mr Edgar Chagwa Lungu, contrary to the proviso that if the candidate does not meet the qualifications or procedural requirements specified for election to that office, their nomination paper must be duly rejected. The failure of the returning officer to reject the First Respondent’s nomination paper was a dereliction of duty amounting to an illegal act or omission under Article 1(2) of the Constitution.
84. The qualifications for election to the office of the President as referred to in Article 52(1) are clearly specified in Articles 106(3) of the Constitution. As stated above, Article 106(3) stipulates that ‘[a] person who has twice held office as President is not eligible for election as President’ (our emphasis).
85. It is common knowledge that the First Respondent has twice held office as President. He first held office as President when he was elected and sworn in, in 2015 and then in 2016. Consequently, his nomination violates Article 106(3) and results in an unacceptable state of constitutional affairs that the sovereign will of the people of Zambia so clearly prohibited, against the background of their experience of President Kenneth Kaunda’s 27 years in office which ended in 1991, to safeguard constitutional democracy. The originality of the 1991 Constitution, which continues as amended in 1996 and 2016 is effective: since then, no other Zambian President has held office more than twice. This Court should not reverse this historical constitutional trend.
86. For these reasons, the Petitioners have moved this Court, bearing in mind the solemn judicial responsibility of the Court to safeguard constitutional democracy as a hallmark of the sovereignty of the people from which this Court derives its authority and legitimacy.
87. It is worth recalling that:
(a) Article 1(2) of the Constitution makes clear that ‘[a]n act or omission that contravenes the Constitution is illegal.’
(b) Article 2 of the Constitution enshrines the right and duty of ‘every person’ to defend the Constitution and ‘to resist or prevent a person from overthrowing, suspending or illegally abrogating’ the Constitution.
Contextual background of Article 106
88. We reiterate that a purposive interpretation of Article 106(3) entails a focus on its purpose and the context of the provision, which including its historical underpinnings, is essential to ascertaining the purpose of the provision.
89. The Twenty-Second Amendment to the United States (US) Constitution (Amendment XXII) informed the formulation of Article 106. It is therefore instructive and in keeping with a purposive approach to constitutional interpretation to briefly review the background to the Twenty-Second Amendment.
90. The Twenty-Second Amendment has two aspects. First it restricts only the re-election of an already twice-elected President, without limiting the length of time, consecutively or cumulatively, that a person may serve as President, and secondly, it limits to one election to the office of the President for any person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected.
91. The ‘eligibility’ limitations placed on ‘successor’ presidents was a feature of the 1991 Constitution of Zambia prior to its amendment in 2016. Article 106(3) separated out the limitation to the number of times (that is, twice) that a person holds the office of the president from the term of years of presidential service (that is, four in the US and five in Zambia, as reflected in Article106(1)). In this way, Article 106 avoided the confusion inherent in the Twenty-Second Amendment regarding the limitation of being elected twice on the one hand, and a term of presidential service based on an unexpired term, on the other, on which this Court erroneously based its decision in Pule.
92. How the 2016 Amendment to the Constitution got to the position reflected in Article 106(3) is evident in how the Twenty-Second Amendment came about in the US as well as the inherent ambiguity it carried by virtue of the compromise that was reached in its language.
Brief historical overview of the Twenty-Second Amendment
93. President George Washington’s disinclination to run for a third term reinforced by Thomas Jefferson and others, had established a precedent in the US in 1796 in retiring from Presidential office after his second term. President Washington’s precedent had become, by universal concurrence, a time-honoured convention and part of the republican system of government in the US. The convention deemed that any departure from it would be unwise, unpatriotic, and fraught with peril to the free institutions of the US. The same risk is inherent in the First Respondent’s quest to thrice hold the office of President of Zambia and the lesson of the Twenty-Second Amendment must be heeded by this Court.
94. Relatively little attention was paid to the two-term issue in the US until President Ulysses Grant was re-elected in 1872 and the possibility of his running again in 1876 was raised. Opposition grew to President Grant’s presidential service beyond two terms through a series of resolutions that were passed by the Republican Conventions and several states in 1875, including the ‘Springer resolution’ passed by the House of Representatives by a 234 to 18 vote.
95. However, the two-term issue received greater attention with President Franklin D. Roosevelt’s unprecedented four terms of service against a convention of the constitutional limitation of presidential service. As Vice President, Roosevelt had served almost a full term after President William McKinely’s assassination in 1901 and he was re-elected in 1940 and 1944, thereby becoming the first US President to be elected to third and fourth terms.
96. In response to his re-election in 1940, resolutions were passed between 1940 and 1943 by eight state legislatures calling for presidential term limits, while the Republican National Convention in 1940 sought a constitutional amendment to enforce a two-term limit ‘to insure against the overthrow of our American system of government.’
97. These developments prompted the House Judiciary Chairman, Earl C. Michener, and Speaker of the House, Joseph Martin, to introduce, on 3 January 1947, a presidential term limit amendment by means of a House Joint Resolution 27 (H.J. Res. 27) and House Judiciary Committee (136 H.J. Res. 27) which, as originally written, specified that:
‘No person shall be chosen or serve as President of the United States for any term, or be eligible to hold the office of President during any term, if such person shall have heretofore served as President during the whole or any part of each of any two separate terms.’
98. This proposal was modified by the House Judiciary Committee (H.J. Res. 27) on 5 February 1947 as follows:
‘Any person who has served as President of the United States during all, or portions, of any two terms, shall thereafter be ineligible to hold the office of President.’
99. The House Judiciary Committee’s language does not appear to have altered the original substantive content of the proposal: under each proposal, regardless of whether a President was elected or assumed the Office through some other means, his or her service was limited to a maximum of two terms. Departing from this posture however, the Senate Judiciary Committee subsequently modified this provision to provide that:
‘A person who has held the office of President, or acted as President, on three hundred and sixty-five calendar days or more in each of two terms shall not be eligible to hold the office of President, or to act as President, for any part of another term.’
100. It should be noted that up to that point, the evolution of the Twenty-Second Amendment had only addressed limits to the terms of presidential service. This changed from 10 March 1947 when a Democratic Senator, Warren Magnuson, offered a straightforward amendment to the proposal of the Senate Judiciary Committee, stating as follows:
‘No person shall be elected to the office of President more than twice.’
101. We respectfully submit that it was Senator Magnuson’s amendment on which Article 106(3) of the Zambian Constitution is based. The similarity in language is striking, except that Article 106(3) substitutes the word ‘elected’ with ‘held office.’ Magnuson explained that the language in his proposal, unlike the ‘complicated legal language’ of the Committee version, ‘could be easily understood by everyone, and … would not involve complicated legal questions.’ In Senator Magnuson’s view, his proposal focused on what was ‘really intended to be reached’ – namely preventing a President from ‘perpetuating himself in office’. Article 106(3) must be understood in the same way.
102. Senator Magnuson’s position was echoed and received support from Senator Joseph Tydings whose words are instructive in understanding the content and purpose of Article 106(3):
‘What we are trying to do is to stop any man from being elected President more than twice …. But under the committee amendment a man could be prohibited from being elected President more than once, provided that he had served more than 1 year prior to the time he was elected President….’
103. In the event, a compromise was reached between Senator Tydings and others which would eventually become the Twenty-Second Amendment.
104. In adopting the Twenty-Second Amendment, the US Congress focused on elections by prohibiting only re-election of an already twice-elected President. Pointedly, the evidence concerning the circumstances of the adoption of the Twenty-Second Amendment shows that most of the members of Congress who discussed it held the view that it was designed to prevent an individual (like the First Respondent in these proceedings) from becoming entrenched in the presidency, even if supported by the electorate. Correctly understood, this concern is alive in these proceedings and it counters the Second Respondent’s claims regarding the perceived popularity of the First Respondent.
105. For these reasons and because of the concerns expressed in the lead up to the adoption of the Twenty-Second Amendment, the adopted text specifies that:
‘No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.’
106. It is noteworthy that the Twenty-Second Amendment has never been the subject of litigation. This makes the question for this Court to determine the applicability of the provisions of Article 106(3) a transcendental one inheriting as it does the spirit and content of the Twenty-Second Amendment but with more stringent prohibitions.
107. There are two aspects to understanding the text of the Twenty-Second Amendment. First, it restricts only the re-election of an already twice-elected President, such as the First Respondent (Edgar Chagwa Lungu), without limiting the length of time, consecutively or cumulatively, that a person may serve as President, and secondly, it limits to one election to the office of President for any person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected.
108. The difference with Article 106(3) is that while the first limb of the Twenty-Second Amendment restricts only the re-election of an already twice-elected President, Article 106(3) makes ineligible for election as President any person who has twice held office as President whether elected or not, and regardless of however such a person became President, provided he or she has twice held office as President.
109. As Senator Tydings explained, ‘what we are trying to do is to stop any man from being elected President more than twice.’ Senator Magnuson provided the rationale that his proposal focused on what was ‘really intended to be reached’, namely preventing a President from ‘perpetuating himself in office.’
110. We submit that descending from the language and concerns behind the Twenty-Second Amendment, both the content and historical affirmation of Article 106(3) forbids the First Respondent from being elected President more than twice. This is a different issue to that decided, albeit erroneously, in Pule and Kapalasa.
111. The second limb of the Twenty-Second Amendment limits to one election to the office of the President for any person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected. This provision relates to a term of presidential service for a President who held office of the President, or acted as President, for more than two years of a term to which some other person was elected. A similar provision, no doubt derived from the Twenty-Second Amendment, was contained in the 1991 Constitution as amended by Constitution of Zambia (Amendment) Act, No. 18 of 1996 (prior to the 2016 Amendment).
112. However, the 2016 Constitutional amendment made a fundamental and significant difference to the completion of years of terms of service to which some other person was elected considering:
(a) The introduction of a running mate to the President who is constitutionally positioned to succeed the untimely departure of an incumbent President under Article 106(5), which was not the case before the 2016 constitutional amendment. Therefore, the same principle governs the position of the Vice-President in Article 111(3) that a person who has twice held the office of Vice-President shall not be selected as a running mate. Under this provision, for example, having twice held the office of Vice-President, the Republican Vice-President, Inonge Wina, would not have been eligible to be selected as running mate. Under Article 266, ‘running mate’ means a person who is selected by a presidential candidate to stand with the presidential candidate in a presidential election so that the person becomes the Vice-President if that presidential candidate is elected as President; ‘presidential election’ means an election to the office of President and includes the election of a Vice-President as a running mate to the President.
(b) Unlike the Twenty-Second Amendment which does not establish a term of years of presidential service, the term of office of a President remains five years which shall run concurrently with that of Parliament.
(c) However, and this is the difference brought about by the 2016 constitutional amendment, presidential terms of service are contingent upon the prohibition of having twice held office under Article 106(3), which makes no mention of serving an unexpired term and stands on its own.
(d) That the application of the restriction on twice having held office to both the President and Vice-President is a fundamental principle of the basic structure of the Constitution serves as a check and limitation on the number of times that a President and Vice-President can assume their offices, respectively. An interpretation to the contrary alters this basic structure which is balanced in terms of the sovereign will of the people regarding executive, legislative and judicial authority. The Court must not bend the sovereign will of the people by which they adopted and gave themselves the Constitution.
(e) The issue of succession and unexpired terms are addressed in other provisions of Article 106. Under Article 106(5)(a), when a vacancy occurs in the office of the President, the Vice-President assumes the office of President immediately, this in view of the introduction of a Vice-Presidential running mate in Article 110(1). This means, for example, that Vice-President Inonge Wina would assume the presidency immediately if a vacancy were to occur in the office of President.
(f) Article 106(5)(a) is clearly inapplicable to the First Respondent as he did not ascend to the presidency either as Vice-President or as a running mate contemplated by the 2016 constitutional amendment. The principle of a running mate who would become president when a vacancy occurred in the office of President did not exist before the 2016 constitutional amendment. It was introduced in the 2016 constitutional amendment to resolve the perennial problem of holding presidential by-elections when a vacancy occurred in the office of President.
(g) An unexpired term under the Constitution as amended is addressed by Article 106(5)(b) under which, if the Vice-President is unable for some reason to assume the office of President, a presidential by-election must be held under Article 105(8)(b). However, we submit that in the context of the introduction of a Vice-President as a running mate who would assume the presidency immediately in the event of a vacancy under Article 106(5)(a), the reference to the Vice-President who is unable for a reason to assume the office of President in Article 106(5)(b) is to a Vice-President who was a running mate under Article 110(1) and elected together with the President and who would have assumed office immediately. In that event, an election to the office of President is constitutionally justifiable and the provisions on the unexpired term of presidential service are applicable, including construing Article 106(3) in that respect as stipulated in Article 106(6)(a) and (b).
113. We respectfully submit that these provisions are inapplicable to construing the First Respondent’s presidential service of an unexpired term because he was neither a Vice-President nor a running mate who immediately assumed the office of President on here being a vacancy in that office following the death of President Michael Sata. Then there was not a running mate as Vice-President who was unable for a reason to assume the office of President. In any event, Article 106(5)(b) is imperative that an ensuing presidential election is subject to the requirement that the Speaker of the National Assembly shall perform executive functions pending elections. That was not the case either.
114. Consequently, how the First Respondent became President and whatever his term of presidential service then was is immaterial to Article 106(3) and cannot be construed correctly with respect to Article 106(6)(a) and (b) of the Constitution (as amended). What matters is that it is indisputable that he has twice held office as President. Having held office twice and serving a presidential term are not the same thing legally and do not have the same legal significance as our analysis above has shown.
115. The First Respondent and this Court should respect the manner in which the First Respondent became President in 2015 under the 1991 Constitution as amended in 1996, and the modification of those terms, of which the First Respondent and this Court ought to have been aware, when the First Respondent signed into law the Constitution of Zambia (Amendment) Act, No. 2 of 2016 on 5 January 2016 and swore to defend the Constitution (as amended) upon being elected for the second time in the same year (2016).
The purpose of Article 106(3) of the Constitution
116. We submit that it is evident from the history of the Twenty-Second Amendment to the US Constitution which informed the content of Article 106(3) of the Constitution of Zambia and from the country’s own constitutional history reflected in the reports of the various constitutional review commissions and other bodies which this Court, with respect, did not seem to consider or give due weight to in Pule, that the purpose of Article 106(3) is to safeguard democracy and constitutionalism by preventing the possibility of the emergence of ‘dictatorial’ or tyrannical rule.
The role of this Court
117. As a creature of the 2016 constitutional amendment, the critical date for this Court’s existence and exercise of jurisdiction is the date of assent of the Constitution of Zambia (Amendment) Act, No. 2 of 2016, namely 5 January 2016, when it entered into force.
118. We respectfully submit that this Court cannot purport to exercise jurisdiction retroactively beyond 5 January over the 1991 Constitution as amended in 1996, and prior to 2016 amendment by reaching back to interpret an unexpired term under the Constitution prior to the 2016 amendment, when it did not exist, and the basis of which changed under the 2016 amendments.
119. The originality of the 1991 Constitution and successive amendments to it in the context of a perpetual presidency since 1964 leading to the introduction of the One-Party State in 1973 which ended in 1991, show that the people of Zambia were aware of, and guarded against, a clear and present danger to the incidence of perpetual presidents. The nomination of the First Respondent in the quest to hold office beyond two terms against the express sovereign will of the people reflected in the Constitution (as amended) presents such a clear and present danger. When faced with such situations, Supreme or Constitutional Courts must decide in favour of the greater good and the lesser evil to protect constitutional values against the abuse of constitutionalism.
120. Comparative constitutional experience from Latin America is instructive. There, Constitutional Courts tend to safeguard individual presidential interests over and above those of the people. They have ended up sanctioning presidential authoritarianism and the tyranny of perpetual presidents against constitutional democratic gains that the Twenty-Second Amendment and its descendants, such as Article 106(3) of the Constitution of Zambia 1991 (as amended), prohibit to safeguard democracy and constitutionalism.
121. In deciding the transcendental question posed to it in this Petition, the Court is faced with the issue of the substitution of the Constitution by the First and Second Respondents by using the Court to substitute that which the Constitution prohibits, to which the Court must not acquiesce. The substitution of the Constitution was exemplified in two decisions of the Constitutional Court of Colombia against the fact that the Constitution of Colombia historically limits presidents to just one term in office as an important check on Presidents overstaying their terms. President Alvaro Uribe, elected president in 2002, emerged as an unusually popular president of the type eulogised by the Second Respondent. After serving out most of his first term and retaining a very high approval rating, Uribe sought and received approval of a constitutional amendment allowing presidents to serve two consecutive terms. In the First Re-election Case in 2005, this amendment was challenged both on procedural grounds and as an unconstitutional ‘substitution of the constitution,’ but the Constitutional Court upheld the amendment.
122. With his second term coming to an end, supporters of a still-popular President Uribe passed a proposed referendum through Congress, which would allow presidents to serve for three consecutive terms. The court became alive to the danger of overstaying in power and blocked the attempted third term as an unconstitutional constitutional amendment in 2009 in the Second Re-election Case on the grounds that the amendment constituted a substitution of the Constitution.
123. We respectfully submit that while the Court here is not faced with an amendment, it must be alive to the clear and present danger that the Colombian Constitutional Court had first sanctioned and allowed a second term against the Constitution but were able to prevent the consolidation of power by President Uribe. Similarly, the clear and present danger was signalled by the ill-fated Constitutional (Amendment) Bill, No. 10 of 2019 (‘Bill 10’) that sought to amend the Constitution in a pervasive unconstitutional ‘substitution of the constitution.’
124. This Court faces a similar issue in that the First and Second Respondent are obliging it to interpret the Constitution in a manner that the First Respondent should hold office more than twice or more than two times or on more than two occasions in substitution of what the sovereignty of the people so clearly prohibit in Article 106(3). For the Court to acquiesce to that argument would be an unconstitutional substitution of the Constitution on its part, an act that is unlawful under the preamble, Articles 1, 2, 106(3) and 118 of the Constitution inclusive, and which would ineluctably lead to the foreseeable amendment of the Constitution to perpetuate a presidency to hold office more than twice. Article 106(3) and its ancestor in the Twenty-Second Amendment were designed to pre-empt this happening. If the Court overrides Article 106(3), it would provide spacious cover for constitutional illegality, be a party to such illegality as well as bear testimony to the perpetuity and tyranny of the presidency that would unfold in Zambia for years to come, reversing the gains of constitutional democracy that the people fought hard for and made democratic gains against a presidency in perpetuity, from 1991 until now.
For the foregoing reasons, the Court should:
(a) Strike out the name of the Second Respondent from these proceedings
(b) Dismiss the pleas of res judicata and abuse of process
(c) Reconsider and reverse the Pule (and, by extension, Kapalasa) judgments.
(d) Grant the petition.
This application by the three constitutional law experts to be admitted as Amicus Curiae in the matter between Legal Resources Foundation, Sishuwa Sishuwa and Chapter One Foundation was formally filed in Zambia’s Constitutional Court on 7 June 2021.