By Isaac Mwanza
Introduction
The debate on Diamond TV between Hon Makebi Zulu and John Sangwa was not only mature and enlightening but also exposed the public to what most senior lawyers commenting on the Eligibility Judgment would not want to them to know about that judgment. John Sangwa, now using the Diggers Newspapers, has gone full throttle to demean the qualifications of Constitutional Court Judges, the same judges he may want to appear before in 2021 when challenging their pronouncement on the candidature of President Lungu.
So today, I have decided not to write much but to reproduce what a young brilliant lawyer, Edwin Mbewe, has brought out on the Eligibility Judgment. I will also produce his response to Elias Chipimo. This information, many senior lawyers such as John Sangwa, would never want to tell you about that Judgement and your Constitution:
First Excerpt
This young lawyer, Edwin Mbewe, writes:
Many people have been asking me what my take is on the eligibility of President Lungu to contest the next general election. In my few attempts to respond to some of them, I’ve come to conclude that many people have either actually not even read the Constitutional Court’s decision on this issue or if they have, they did not understand it.
Others still have indeed read & actually understood it but for reasons best known to themselves, they are very strangely pretending to have read something else!
The decision is 84 pages long. For the majority of those who are not used to reading tortuous legal texts, it’s quite a lengthy judgment. In light of that, my only contribution to this unnecessary debate is to provide a virtually 100% word-for-word just a 3-paged summary of the Constitutional Court’s decision on this issue.
In the case of Pule and Others v Attorney-General and Others [Selected Judgment No. 60 of 2018], by amended Originating Summons, four Applicants (Dr. Daniel Pule, Wright Musoma, Pastor Peter Chanda and Robert Mwanza) approached the Constitutional Court to determine the following questions:
1. Whether His Excellency President Edgar Chagwa Lungu will have served two full terms for purposes of Article 106(3) as read with Article 106 (6) of the Constitution of Zambia at the expiry of his current term;
2. 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.
The Constitutional Court observed that the manner the questions before it had been couched (framed) personalized the issue in that it targeted the incumbent President as an individual. The Court did not encourage this trend because the framing of the questions for the Court’s interpretation of constitutional provisions should not target any individual as it is meant for general application as the interpretation is binding on every person in the Republic.
What the Court was dealing with in the case was the office of President. The Court pointed out that of course, it understood what the question was or what it ought to have been and what is aimed at, namely, the office of President.
The Court went on to state that the question therefore was or ought to have been framed 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?
The Applicants’ contention, in this case, was that the term served by the incumbent President did not constitute a full term in terms of Article 106 (3) as read together with Article 106 (6) because he only served a period of one year and six months which is below the threshold set in Article 106 (6) of the Constitution and that the spirit of this Article is to avail a President-elect sufficient time to serve in office.
In opposing the above contention, the sum of the 1st and 2nd Interested Parties’ (LAZ and UPND’s) response was that in determining the question whether a President has held office under Article 106 (3), the length of time served does not count as Article 106 (2) states what is meant by “holding office”.
It was contended that to hold office does not necessarily mean a term of office as a president can hold office for a lesser period than the five years. As such, the restriction of the number of times a President can hold office under Article 106 (3) is distinct and does not refer to the term of office. Further, Article 106 (3) clearly states that a President who has ‘twice been elected’ is not eligible to stand for election regardless of the period served.
Therefore, that the circumstances under which the incumbent first assumed office are not covered by Article 106 (5) as he was not Vice-President when he became President in 2015 so that Article 106 (6) could be extended to apply to him.
The Constitutional Court held that:
(1) Although the Constitution of Zambia (Amendment) Act No. 1 of 2016 provided for the continuation of the President in the office of President, it made no provisions for how the period served from January 2015 to September 2016 which straddled two constitutional regimes was to be treated in view of the change in the constitutional provisions from the limitation based on being ‘twice elected’ to ‘holding office’ for two terms.
(2) It could not have been the intention of the Legislature to not provide for the period that was served and that straddled two constitutional regimes as to how it should be treated.
(3) A holistic consideration of the relevant provisions, in this case, will clearly show that the intention was/is to allow or enable a person who assumes the office of president to complete the unexpired period of the term of another president to serve a substantial part of the five-year term of office in order for that term to count’ as a full-term pursuant to Article 106 (6) of the Constitution as amended.
(4) The Clauses in Article 106 cannot be isolated from each other in interpreting the Article. An interpretation of a constitutional provision that isolates the provisions touching on the same subject is faulty. Therefore, to state that Article 106(3) applies to the term that straddled two constitutional regimes but that Article 106 (6) does not, is to isolate Article 106 (3) from the rest of the provisions in Article 106 which is untenable at law, and is at variance with the tenets of constitutional interpretation, as all the provisions on the tenure of office of the President must be read together.
The provision regarding the full term must be applied to defining what is meant by the twice held office under Article 106 (3) in the provisions of that Article.
(5) 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, and the holistic approach taken in interpreting Article 106 of the Constitution in its entirety, the Court’s answer to the question that it rephrased was that the Presidential term of office that ran from 25th January, 2015 to 13th September, 2016 and straddled two constitutional regimes could not be considered as a full term.
(6) As regards the second question, which was whether the incumbent President was eligible for election as President in the 2021 presidential election, the Court’s view was that, in light of the position that was taken as regards the first question, the second question became otiose (irrelevant) and the Court did not consider it.
Second Excerpt
In responding to Elias Chipimo, Advocate Edwin Mbewe, first reproduce the key parts of Elias Chipimo’s arguments:
“To try and settle this matter, we can ask two questions, the answers to which would have to be “yes” in at least one instance in order for President Lungu to qualify to stand again for an election:
1. Was President Lungu elected into office in 2015, as a result of the existing Vice President being unable to automatically assume the office of President”?
2. Do the words “hold office” and “held office” in Article 106(2) and (3) mean the same thing as “term of office” in Article 106(1)?”
And Edwin Mbewe states that this is a very dangerous way of presenting an argument. The answer to the second question is actually “yes”.
Mr Chipimo arrives at the conclusion that:
“It appears that the expressions “term of office” and “hold office” (or “held office“) do not mean the same thing.
Chipimo quotes Article 106 (3) which says:
“A person who has twice held office as President is not eligible for election as President”.
And contends that: “Note that the constitution does not say:
“A person who has served two terms shall not be eligible”.”
Edwin Mbewe bluntly states that what Mr. Chipimo says the Constitution does not say is actually what it says! Article 106 (3) is not a stand-alone provision. It is clearly qualified by Article 106 (6) which says (in part) that:
“…shall serve for the unexpired term of office and be deemed, for the purposes of clause (3)—
(a) to have served a full term as President if, at the date on which the President assumed office, at least three years remain before the date of the next general election; or
(b) not to have served a term of office as President if, at the date on which the President assumed office, less than three years remain before the date of the next general election.”
The combined effect of Article 106 (3) and Article 106 (6) is that a person is not eligible for re-election if they have held office as President for a combined period of at least 6 years (at least 3 years in each term). Article 106 (3) read in isolation truly does not talk about a term but such reading is clearly untenable in view of an express qualification of that provision under Article 106 (6).
Conclusion
No doubt, John Sangwa does not want Zambians to know that the Court defined what “twice held office” means. Sangwa prefers to read Article 106(3) in isolation of Article 106(6) despite the fact that defining what “held office” means in article clause (3) is qualified by a later clause (6). And the Court made that finding. Sangwa wants to rely on Edgar Lungu having been elected twice or sworn in twice which would have made sense if the repealed provisions Article 35 of 1996 were still in force but they are not in force.
Under the current Constitution, it does not matter how many times you were elected to the Office of the President but what matters is whether, not in the eyes of the public or court, how long you occupied office within the possible five-year term to be legally called as having “held office” as President. So John Sangwa can come up with as many interpretations of his own but what matters is what the Court interpreted. John will not tell you about that and News Diggers will never highlight what the Court said, which is now law.
Edwin Mbewe is sharper than most of these lawyers. So why is Sangwa not telling us this info
But it seems he is misrepresenting facts. Look at the Jargon of words, sentences and paragraphs he is using. He is just paid up like those concourt disgraced justices. Lungu doesn’t qualify. Mbewe is in white collar lies. And you swallow hook sinker and line? Come on.
At least this makes sense than what we been hearing on radios. Court made a decision, Lungu will stand. Politics aside
Clearly, Lungu was declared eligible to stand in 2021 without mentioning his name
John Sangwa is 100% right. ECL has held office twice and never ascended to power as a Vice President.
No amount of misinterpreting the law by PF lawyers and judges will get him a third term in office.
Whether he dubiously(with ConCourt’s wrong judgement) ends up on the 2021 ballot or not.
THIS IS ECL’S LAST TERM AS PRESIDENT.
Appears UPND and Sangwa are just scared of ECL
But why do you want him when he has failed the country? Are you stealing together? Let him go and we will not write him in the history books of Zambia. He is a quack that should never have been allowed anywhere near state house
Sangwa’s failing to explain Court made itself clear on held office twice is meant to hoodwink the public with his personal definition.
Brilliant piece and explanation of Court judgment
Simply because it is in your favour.
These old gaurds in legal circles are let down. Why not tell us the Court said this. Thanks Edwin. You thorough and best
This is the problem with “Mukwasu” politics! This can explain why Eastern province, my province, always remains behind like buttocks when the rest of the country has moved on! Don’t agree with someone just because you come from together! When you see your brother telling lies that have potential to cause injury to many, you must have the dignity to correct them! Agreeing with everything your Mukwasu says is being dull! That is being myopic!
First, you have not even given the credentials of the young Lawyer for us to be convinced he or she is a seasoned Constitutional Lawyer like John Sangwa! It’s very unfortunate how Professional guidance is not respected in this country! Well, since you Antonio Mwanza want to be the village Champion in this matter, tell us whether the Court was in…
These same quacks supporting “Mukwasu” given a chance to study law would rush to SANGWA ‘s class for a lecturer!!
Well, since you Antonio Mwanza want to be the village Champion in this matter, tell us whether the Court was in order to stop RB from running for office. By your shallow reasoning, we can conlude that RB never held Office because he served for less than 3 years! It means RB is eligible to two 5 year terms of office! Just to help you with leakage, Rupiah Banda only served as Republican President for 2 years, 10 months, 22 days(2 November 2008-23 September 2011) but he was paid his full terminal benefits. What you are saying Antonio Mwanza is RB should refund the full benefits he was paid because going by your faulty reasoning, he never HELD Office of President! It also means all the decisions he made during that time are bill and void! Please explain your answer with the aid of a sketch…
Enough of this eligibility crap. are we forgetting also that the constitutional court ruled that the illegal ministers stay in office should repay back all the salaries they got but up to now nothing has been done. There is a breakdown in law in this country, as long as you are associated to PF all is well no matter how much you break the law. So let Edgar stand and the people will decide whether they want him or not. Are the PF going to play fairly in the elections? definitely not and this is what the opposition must adequately prepare for because they know what insurmountable task they will be facing next year. Should PF win next year the opposition should not cry foul because they have all this time to prepare and strategize on how they will overthrow the ruling party. Little work is…
It is very clear that some people are so scared of ECL. If what we hear that ECL has become unpopular, why take him and win him on a waterwash than trying to disqualify him. Ba opposition you have grown in numbers why are you scared Lungu? Akamichita ifilonda is? Hahahaha
The case is being debated on biased point. Was the President part of court proceedings. In what locus standi did the applicants approach the court.
Maybe I should ask : “Can the charge of bigamy be applicable to the sitting President?”
Such a question is preemptive in that it may seek court’s decision to justify a future acts
Little work is being done by the opposition in connecting with the primary functions of their party in the communities country wide.
This is the correct position ECL is eligible to run next year for his full and final term.
Mr Mbewe’s clearly shows he is really sharp the way he has explained it in this article, I say Bravo to EDWIN MBEWE and Bravo to Lusaka times for being the eye opener
Edwin is making sense than Sangwa and LAZ
Rupiah Banda only served as Republican President for 2 years, 10 months, 22 days(2 November 2008-23 September 2011) but he was paid his full terminal benefits.Under the 2016 constitution,Article 106(6)(b) states that a person who was elected to the office of President shall only be deemed to have served a “term” if he served for three or more years.
How was RB entitled to full presidential benefits if he did not serve or hold office for a full term?
Mwine Mushi u are dull. Rupiah served for 3 years and 4 days. Even if he had served less than 3 years, issues being discussed now came in in 2016. So they have no effect on Rupiah
this lawyers are just confusing us now,,….starting with the the con court to the ones interpreting…..ready and end up geting nathing at the end….
Why making noise if indeed John Sangwa is very sure Lungu is not legible to stand? Why not wait for Mr Lungu to file in his nomination and then go to court? This Sangwa and UPND does not mean well. They want to swell public opinion in their favor so that some people with little understanding of this judgment will start singing ‘no third term’ when there is no third term here. Just be ready to face Lungu in 2021 Election. Samgwa please stop wasting Zambian peoples time, you lost the same case in court. Constitution does not vote, MMD warn against UNIP and MMD lost to PF because the people trusted both MMD and PF. But this time there is NO WIND OF CHANGE in the nation. PF will carry the day because the Oppositions have not done much.
Proverbs 27:22
Though you grind a f00l in a mortar with a pestle along with crushed grain, Yet his foolishness will not depart from him.
This debate is a non-starter!
There will be no winners and no losers! It’s an exercise in futility, taking away precious time from more important things like the Economy! Surely, Zambians must pay more attention to the falling Kwacha and understand the consequences of a weak Kwacha! A weak Kwacha will make our Dollar debt servicing more expensive! A default on debt will be the end of Zambia and the eligibility controversy will be irrelevant! Learn from what is happening in Lebanon!
Sangwa & Chipimo are Right! the Term of Office and Holding Office are two different Qualifying Conditions that must be met mutual inclusively, Both of the Criteria are independent and must be met separately and in their own individual rights. Besides, the current President was Elected into Office under the 1996 Constitution. Though, even under the 2016 Constitution, he does not satisfy the Term of office criteria as he has never been a Running-Mate , neither was he Elected into Office after both the Elected President and Vice President have been unable to continue in Office of President! Article 106(6) does not apply to Serving Presidents, but Vice Presidents and Presidents who are Elected to the Office of President after both the President and the Vice President fail to continue in…
Both Sangwa and Chipimo are extremely right. Keep on pushing guys what you have been saying is validly true and we are behind you!!
In pure cartel or Mmembe/post style, Sangwa is trying to mislead the public. Diggers is after all a post newspaper mini reincarnation. Fred controlled the minds of Zambians with his biased opinions the way Sangwa is doing it. Fred was seen for who he really was from late 2014 and failed to recover since. Even reopening the post won’t automatically bring back the mighty readership and support he had built since 1991. Sangwa is just displaying his failures by attacking ConCourt judges.
Honestly speaking how can words “term of office” and “hold/held office” be the same or mean the same? PF lawyers are trying to mess us Zambians. Stop it and mind the way you are shutting down our economy!!!!
I know this is very sad for the opposition to bear……but the bright side of this is that President Lungu’s case now sets ‘judicial precedent’. Meaning that, if HH wants he can step aside for another member of his party to run 2021, he being running mate. If that person wins, all that’s left is for HH to wait 2 years before MURDERING that candidate, then taking over the office of President (where the seat is suitably warmed up for him), to complete the remaining 3 years. We all know he would!
Then the rest is ‘all gravy,’ because he gets another 2 terms (as per his & LAZ-y interpretation) to hold office! 13 years straight up if…. ‘Zombians’…… are fast asleep that long! Viola …..always a bright side to things. So opposition need to give up their tiresome…
@ Advocate I can tell you are not an easterner because you can not insult the easterners if you are and the issue of RB that is a different constitution of 1996 which had article 35 which state that the President who has been elected twice is not eligible to stand for election so my brother leave the wise people of eastern alone with your swallow thinking.
Lungu is standing . Don’t be cheated. Iyo law! Can we hear upnds legal argument? Hot air fye
This explains why Sangwa is jumping from one radio station to another and one forum to another; he is bitter with ConCourt judges. Good lawyers wait until the time is ripe.they don’t argue cases in newspapers and forums. he can learn something from Muchende.
Mbewe is hiding behind the jargon of language. I don’t think most of the commentators have understood his article. The bottom line here is, LUSAKA TIMES IS A PF PLATFORM. MOST BRILLIANT COOMENTATORS SHUN IT, ARE NOT HERE AND THE SPACE IS LEFT FREE FOR MOSTLY BOOTLICKERS. BRING AKO KA MBEWE TO PRIME OR DIAMOND TV FOR A LIVE DEBATE WITH JOHN SANGWA SC WE SEE, WE HEAR.
I’m suprised how some people are finding it difficult to differentiate btn the 1996 and the 2016 constitution. RB lost elections in 2011, and the constitution that applied at that time was that of 1996. What happened after the 2016 constitution has no relationship with the 1996 constitution. If you want to apply your own law on the eligibility of the president you are wasting your time. The interpretation is straight forward. Just move on and focus your energy on more reproductive issues.
Lusaka Times should afford an opportunity to constitutional lawyer John Sangwa for rebuttal over this matter for the public to know the import of judgement based on the suit brought by Daniel Pule and others. Con Court should provide guidance to the law of the land not based on actions brought by individuals to determine individual status with regard to standing for elections or re election.
Everyone seems confused.the Concourt answered the question which it framed itself.young lawyer Mbewe….just sit down