By Prof. Kenneth Mwenda
After much reluctance, I am somewhat compelled to respond to the call of many good friends, colleagues and well-wishers who have been asking me lend my voice to the current constitutional debate in Zambia. At the outset, I must state that I am not here to cause trouble or to take any political sides. Mine is purely an intellectual contribution.
In examining the issue of presidential term-limits in Zambia (and elsewhere), let us take a comparative and international perspective to inform the discourse more thoughtfully.
(1) Presidential term-limit in Russia:
Article 81 of the 1993 Russian Constitution provides that:
“1. The President of the Russian Federation shall be elected for six years…
2 ….
3. One and the same person may not be elected President of the Russian Federation for more than two terms running.”
Now, what does Article 81 of the Russian Constitution mean? Indeed, let us take a more reasoned look.
Under Russia’s 1993 Constitution, the President can serve for two consecutive terms. And each term runs for six years. But the said constitution does not stipulate the total number of terms that a President can serve. So, a former president can seek re-election after ‘cooling off’ for one term and then bouncing back as President. Indeed, you can keep ‘cooling off’ after every two terms and then bouncing back. Nothing stops you from doing so.
(2) Presidential term-limit in the USA:
Section 1 of the Twenty-Second (22nd) Amendment of the US Constitution provides as follows:
“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 President more than once…”
Now, what does this US constitutional provision entail? Again, let us take a more reasoned look.
The US Constitution, unlike the Russian one, does not talk about ‘more than two terms running’. Rather, it simply bars any person from being elected to the Office of President more than twice. So, in the case of the US, there are two possibilities. An individual can serve two presidential terms in the US consecutively (i.e. one running immediately after the other) or ‘cool off’ after only one term, and then run again for second term later. Yes, one can serve a single presidential term in the US, and then ‘cool off’, that is, if he or she chooses to do so, before bouncing back for one more single presidential term. Indeed, the US Constitution does not stop you from doing so. But that person cannot exceed two terms in total. The US Constitution also spells out what constitutes a presidential term in the event that an individual adopts and serves part of that term to complete his or her predecessor’s presidential term.
Indeed, the US Constitution states explicitly that ‘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 President more than once.’ Now, this is where the Zambian conundrum enters. And I want to make the analysis here very simple and easy for any layman or pedestrian to follow. Let us turn to the case of Zambia.
(3) Presidential term-limit in Zambia:
Article 106(1) of the Constitution of Zambia, as amended in 2016, provides that:
“The term of office for a President is five years which shall run concurrently with the term of Parliament, except that the term of office of President shall expire when the President-elect assumes office in accordance with Article 105.”
It is at this juncture that the debate enters about distinguishing the words a ‘term of office’ from ‘holding office’. Indeed, Article 106(2) and (3) of the Zambian Constitution provides that:
“(2) A President shall hold office from the date the President-elect is sworn into office and ending on the date the next President-elect is sworn into office.
(3) A person who has twice held office as President is not eligible for election as President.”
Against this background, can we say that ‘holding office’ and ‘term of office’ are two different things? If so, what are the legal implications? If not, what is the way forward, given that there is no appellate court above the Constitutional Court? And does the concept of ‘constructive ambiguity’ in legislative draftsmanship play a role here? Or, could it be a case of rushed legal ordering of the political economy by the legislative draftsman? What can we learn from the constitutional provisions of the US and Russian constitutions on the matter?
In Zambia, Article 106(6) of the Zambian Constitution continues:
“(6) If the Vice-President assumes the office of President, in accordance with clause (5)(a), or a person is elected to the office of President as a result of an election held in accordance with clause 5(b), the Vice-President or the President-elect 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.”
Again, do the words a ‘term of office’ and ‘holding office’ mean the same thing? Then enters the Dan Pule case before the Constitutional Court of Zambia, with various commentators seeking to find out if the constitutional nomenclature pertaining to ‘holding office’ and ‘term of office’ are synonymous or not.
Now, in the Socratic method of law school teaching, we do not spoon-feed anyone with answers. Rather, we raise issues for people to think through. So, if you are looking for answers here to affirm or disaffirm the ruling of the Constitutional Court, you are in the wrong place and on a wrong forum.
Such is not the intended purpose of this contribution. Rather, we seek to stimulate critical thought around the legal issues surrounding this debate. So, let the debate begin, with decorum and well-reasoned submissions. Indeed, emotive or partisan outbursts are not arguments at all. Thank you!
Prof. Kenneth Mwenda is a distinguished thought leader and public intellectual. He read law at Oxford as a Rhodes Scholar.
A contribution full of questions that have already being answered by the rightful court. In other words debating non issues. Is this what it takes to be classed intellectual. People poke fun at my humble education and background but at least I don’t pose only questions to the government I serve. I actually go out and win elections. Yes the lab technician from chelstone clinic is winning elections. Clear evidence that one doesn’t need to have a list of letters after your name to be successful or good at what you do. This article has served no purpose kz
The article was not neither about you nor about winning rigged elections. Your intellectual bankruptcy is event by the fact that you want to comment on everything. Wisdom is the ability to shut up when the debate is beyond your comprehension. You are a clear example of how destructive and overzealous when power is placed in wrong hands!
Actually KZ, if you took time to read this article, it has some parts that might support Lungu’s argument to stand again for presidential elections. But as usual you are exposing a typical Zambian cadre mentality to not-reading, just bushing education, because of some little money to have. And yet you are still enjoying that IPHONE (and some technology) that education investments in other parts of the world has produced. Its crazy that in Zambia you people bush education (and the educated because you have more money than them) and yet you are enjoying the products of education from other parts of the world.
A well known vote rigging thief comes on here to brag about it. Hope the next government convicts you.
And you wonder why Zambia is in the current state???? It’s full of educated morons…..
Bonse aba MASUSHI. Elo nibangwele. This so-called Prof. is as stup!dy as he behaves on facebook; yapping crap! He thinks that he is the best thing that has ever happened to himself!
Mmmm kz read through again
Suprise surprise HH has now come out in support of the lifting the restriction on sangwa following the ban on his practice. Even a baby can tell what is going on. Hh tawakatekepo
So what is this socalled contribution all about. I cant see what his stance is. Baba just be firm and make your contribution be heard and don’t confuse us with the law semantics and antonyms or whatever. Just say some one is not legible to stand kwasila. Dont fear we are not kings forever in Zambia – we are not a monarchy.
Disaster!!!
#1. A ROUND as a result of erection: shall last for 5 years.
He can’t continue, he prematurely died in act.
#2. Gets his ERECTED, continues the ROUND.
Did #2 get a ROUND?
kenneth Mwenda is arguably the most learned legal scholar in Zambia, asides from being a Rhodes Scholar and a Phd. he has a JD in law, very few legal scholars accomplish that.
With that being said, I feel his contribution to this subject has not done any justice to what we could expect from him, especailly since he considers his contribution to be for the lay person and not a legal scholar.
The comparison between the Russian and US laws is unnesary in this debate, unless he strove to show what the Zambian laws were meant to operate on. A fairer assement, in my view, would be to trace the consitutional history from 1991 and see how, if any, the amendments to presidential term limits were tailored and for what purpose.
With that being said, leaving these questions for us to answer doesnt…
@Spiderly Existence. Seems you haven’t heard of Prof. Muna Ndulo no 1 of the class of 1970 – yes the best of the first 23 to graduate from UNZA Law School. While Prof Kenneth Mwenda is equally distinguished, Prof. Muna Ndulo is a different breed of a lawyer, he’s a world renowned Constitutional architect. Need I say more?
@ Dokowe, the word arguably should be clear in my statement.
Can someone tell me what implications there may be on lungu who has been elected twice under two different constitutions?. Secondly does the current constitution undo what was enshrined in the previous constitution? If so what implications does it have on RB as former president? Lastly does the term elected twice have an implication on lungu since it is also in the same current constitution?
@Rowdy your contribution is ok except the last part. The current constitution does not say elected twice but held office twice. This is the question that professor Mwenda has asked us to answer whether ‘term of office’ means ‘ held office’. If they mean the same or can be used interchangeably then ECL is eligible for elections in 2021 And if they don’t mean the same what makes them different? This is the answer Prof. Mwenda wants us to answer without getting angry at one another.
#Aside from being…#
#What we should expect expect from him..#
#unnecessary#
Continued…
leaving these questions for us to answer doesnt do any good, people, especially the law person, want to understand the confusion, leaving them the same questions doesnt help.
Respectfully, this isnt law school were your legal reasoning on given facts gives merit. I feel Mwenda has taken an all too intellectual interest in this matter (to his credit, he does say this is an intellectual contribution only) to the detriment of everyone else looking for answers and explanations.
I think his opinion on the subject would help the many people who want legal opinions such as his to be heard.
This belongs in a law school exam, not on public fora.
Kenneth Mwenda naena *****, he didn’t make up mind. Be a Sangwa, get your balls hard so we know you thoughts chikkala.
Truth is: Ba Edgar had 2 elections, premature or didn’t last 5 years that doesn’t count.
ba prof, no one gives a s.hit about the socratic method of law school teaching.
@ Rowdy, I dont know why people conveniently ignore the law prior to the amended consitution! Lungu was sworn in pre amendment, we went for a by-election as per law then, he won the election and he was sworn in! accordinng to that constitution, his mandate would last till the term of parliament came to an end. In that law, if you had three presidents die within the 5 years, they all had a term as president, irrespective of how long they served for. bad law, good law, that was the law.
Why now the law must be applied retogressively is beyond me?
The talk of article this and that as a result of the amendment oughtnt not apply here.
#Why the law must now be applied retrogressively is beyond me#
Kenneth Mwenda has done a disservice to the debate. It would have been helpful if he had taken a stand either way. The tendency by Zambian educated elite to pretend that issues of national interest such as presidential term limits are beneath them has led many fellow Zambians to question the value of degree qualifications if those who posess such can only hide behind archaic philosophers as if to imply that thinking died when Socrates et al died.
Ba Kaiser zulu you are the law makers please your comments on the constitution not on HH,HH is not is not on debate he’s just an oposition political player.
Ken Mwenda has not answered the question whether Lungu is eligible to stand as president in nxt yr’s election. Instead he has asked for a debate. Those in the mood for a debate, please start one with him. He has declined to answer the question at issue and that is his right as a citizen. No need to damn him.
So what exactly is ba Kenneth Mwenda’s point? His allusion to the Socrates philosophy is to put it politely very disingenuous. Maybe in law it makes sense to follow Socrates long after the guy kicked the bucket. In the life sciences facts are ever emerging and a university professor must make these plain to his students to stimulate the advancement of science.
Prof. Kenneth Mwenda – we are not your students in your lecture theatre…this is why I like built environment studies you get answers there and then!!
Ba Mwenda is dangling a sweet and asking us to grab it.
Why not just drop it so that people pick it up.
Lumpens call this amasetting.
Its likenubpoise a quiz to your students and sit back, and watch them as they contort as they seek a simple answer made difficult
kkkkkkkkkk
He is just a coward….period!! These are the learned /schooled morons confusing the nation. As a layman, l would say he has just FAILED to interpret the clause that particular clause or scared to state his opinion.
Remember the CV he once wrote? He is still looking for a job that’s why he is on the fence.
Really, you have to respect people that take a stand irrespective of the outcome or consequences
This is a hot debate that’s going on right now and his weighing in would have helped a lot but what does he do? He more or less folds his arms and decide to watch!
Really laughable Prof. Kenneth Mwenda reminds me of my thesis supervisor…I go to ask the Doctor about research strategies to deploy for my research she takes out a thick textbook from her shelf and recommends I go and take this out from the library. Prof. Kenneth Mwenda we have not come to you to ask you sir…either you have an opinion or just ignore. Next time sir please contribute something about critical analysis and thinking dont mislead as with such juicy headlines!!
Tarino, your revelation truly baffles. Your research supervisor is not supposed to spoon feed you hence the suggestion that you go to the library. No wonder you end up with a research report that you do not understand. Prof. Mwenda is simply saying draw your educated conclusion given the examples given. Clearly, the scriber of the Zambian constitution did not think through on the legal linguistics of the various terms used. The US constitution has a similar arrangement but is clearly written to be interpreted even by the person.
And that’s why I am stating that we are not his students…yes as a student am required to research but here is the difference we are not the Profs students: people want to know where he stands!!
What a stance! Totally sitting on the fence!
By the way ” I stand by SC John Sangwa”, there is an idea for entrepreneurs to print on t-shirts if the police wont arrest your t-shirts. Zambian lawyers need to step up!!
Zambians next time you are drafting the constitution …go and physically get these learned people from all over the globe send the ZAF Gulfstream G650 to collect them so they can come and cite Russian and US constitution clauses.
I have liked the manner this article has been stipulated or referenced.However,I was looking for Prof.Mwenda’s conclusion on the matter.However,my conclusion on this matter as whether President Lungu can stand for 2021 election nor not remains very unclear because article 106(2) and (3) of the constitution is ambiguous and confusing.Hence,we cannot cherry-pick.What the constitution isn’t explicit on this issue is in explaining if holding the office of presidency twice means full two five-year terms or simply holding the office of presidency twice despite any length of time as a prerequisite of re-election?And the reason why it makes it complicated for anyone to win this case is because of the loopholes left in the constitution.Law before courts is interpreted and translated.If we go by…
I already got an informed education, based on the RULE OF LAW from one learned SC, John Sangwa. This “reluctant” inclusion here from a Socratic angle is unnecessary and throws the layman further down a rabbit hole they may not emerge sane from. People, follow Sangwa’s argument; it also gives good background based on when things started circa 1991.
Ma lawyers why balinachiputa so aai…let’s unsit these low life thinkers who think they are of the only profession that can rule mother Zambia… Kaunda did great for this nation but was no lawyer… Let’s unsit them before they turn all of us nuts…nalema nabo ma lawyers…. Thinking no bwino bwino…
My good old friend and first year classmate at UNZA, Kenneth Mwenda, has provided very clear guidance on the matter of President Lungu’s eligibility. He is saying that when Edgar Lungu, as Vice-President, assumed office of President on January 25, 2015 following a Presidential by-election, Edgar Lungu finished late Michael Sata’s term of office which ran up to 2016. And since, the remaining part of President Sata’s office was less than three years remain before the date of the next general election, President Lungu cannot be said to have served a term of office as President. Accordingly, President Lungu’s first term of office was the one from August 2016 to 2021, making him eligible to stand for the next election in 2021 for a second term of office.
You must be a senoir lawyer if you were in the same class as Mwenda.
As a senior lawyer, i would expect you to argue the law and facts, to begin with, in which Universe was Edgar Lungu Vice President for him to have taken over office from the late Sata?
And why are we trying to force the law to work backwards for Edgar Lungu’s case? he was never a running mate for that law to aplly to him!
I have promised myself to uphold Constitutional Court ruling on this matter. The rest are just window-shopping with the law.
So since this same noise arose prior to the Pule Concourt ruling, this same noise still ends with the Concourt ruling.
We will encourage the yaps from intellectual characters but still get back at the standing ruling.
No appeals ka?
Hahahaha.
(3) A person who has twice held office as President is not eligible for election as President.”
May the law scholars explain the difference between HELD office as president and SERVED a term of office as president.
Does HELD office mean it doesn’t matter if didn’t serve a full term in one of your reign as president but as long as Held the presidency twice you are not eligible to stand as president?.
Secondly does the constitution say somewhere that if you have not served a full term in one of your two terms you are eligible to stand as president?
The learned professor is politely saying, our constitution is not very clear on the arguments raised. There is therefore need to address these lacuna before they bring chaos to some generation. They questions raised clearly needs answers..
Tarino very brave in issuing statements from the comfort of your home abroad. You ask people to do so many things back home here. Why can’t you come back and do the things you expect others to do on your behalf. Those foreign countries you have chosen to seek economic asylum from achieved their status through the sheer hard work of it’s own citizens. Let their own people enjoy their hard work. You should also come back here and build the society you keep going on about in your posts. Otherwise to us you are just a coward, a cocoon and failed armchair critic. Kz
You see what you have done Prof.? You mention Dan Pule Ruling and that’s what one small boy @Thorn in the a$$ picks up and makes his own conclusions. In fact where did Dan Pule even get resources for that case…it may have Tayali all we care!!
Doesn’t the clauses on terms of office for those elected when an incumbent president does refer to compensation for presidents at the end of the term in monetary compensation for presidents? Am an accountant please don’t judge.
Kz – I told you that you are an imposter you are not even in Zambia, you have hacked the website to the point where even flags dont show any more. I said it before I have no time for you N3z the coon…get a life.
I believe that Prof Mwenda had warned the readers sufficiently for him to leave his article where he left it. Good academia and or scholars have similar characteristics to stimulate thinking and not to give candidates the fish but rother teach them to fish. Our Zambian education has taught us just to receive fish and not to catch it for our selves, a typical example is the response by our brother KZ. The article has given a very good analysis to draw closer even the wondering mind to the issues at hand, the comparison of the Russian and America laws on the issue underlines this perspective. If we consider the sections that were covered by prof. Mwenda then there is no doubt why the concourt ruled I. Favour of the incumbent president. The complexity however, grows when you follow the…
… When you follow the history of the amendments.
KZ if you like sacrifice everybody in your party and give them to seer 2 to eat. ECL does not qualify for third term. Even if he comes back in another life like a cat my brother he’s still not eligible.
And you ba Kenneth Mwenda we are not here for law classes why beating about the bush?. These mongrels of poverty and thuggery need to be told that it’s no more night. Nabucha and the party is over.
I don’t give a damn about the constitution and all your damn interpretations.
It’s just common sense that Ba Kambwanga needs to be gone from state house ASAP.
When is he flying next so that he can brief us on the latest on gassing, Spax, and COVID-9? Airports are now a major source of news. Another important source is when foreign diplomats pay their courtesy calls.
By the way the president promised to talk to the nation on gassing at an appropriate time, we are still waiting, even though SOMEHOW the gassing seems to have stopped.
As we debate eligibility please lets not forget the above issues of life and death.
Just been watching the South African TV stations, President Cyril Ramaphosa addressing his people on COVID-19. How I envy South Africans their President!! He seems to be truly accountable to his people. And quite reassuring too.
Another one is President Uhuru Kenyatta of Kenya. Lucky Africans!!
Waiting for Prof. Muna Ndulo to dive in, even though he already did that before ECL assented.
To present an academic argument/position to a people that are looking for answers is not intelligent Prof. Mwenda. Zambians need clarity on the issue of eligibility. Your article here seems to say that there is a lot of ambiguity in the current Constitution. If that is what you are saying, then tell your audience that both sides of the debate on the eligibility issue are correct – and therefore, you are just helping in increasing the confusion. My analysis of your presentation here learned Professor is that you are scared to come out in the open with an argument that is very clear because you do not want to be seen like you are being antagonistic to one group because you want to stand a chance with either party to serve in their government.
Don’t leave people in suspense just hammer the nail at it’s head don’t bit about the bush Professor,for a laymen’s understanding next time come out open and don’t be a coward.
So sad to see that prof mwenda has clearly failed to state his position bcoz of fear. He’s really a coward.
So what have you said palast? Better to keep quiet and be thought of as a fool than to open your mouth and remove all doubt. Should’ve just kept quiet mudala
The professor was not even supposed to attempt to say anything on this subject he just sounded very mediocre. He has not given direction to a very important topic or debate that anyone should enter only when they have a considered position. In debate he can get a zero for not giving direction of his considered view. If you cannot give a conclusive remark on an issue you have failed and you are mediocre. He has said nothing in reality. He is a useless professor who makes education look very useless
Prof Mwenda is a fool really, his contribution above is insultingly frivolous and without any legal basis, I mean, which university did this snob graduate from?