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.

University of Zambia lecturer Dr Sishuwa Sishuwa has called for the removal of all Constitutional Court judges for gross misconduct and incompetence.

Commenting on constitutional lawyer John Sangwa’s observation that President Edgar Lungu dribbled Zambians when he appointed unqualified individuals as Constitutional Court judges, Dr Sishuwa agreed.

He said only individuals who meet the constitutional requirements to serve as a judge on the ConCourt: namely, specialised training or experience in human rights or constitutional law and 15 years’ experience as a legal practitioner, should have been chosen to serve on the court.

“The Constitutional Court has the final say on all matters relating to the interpretation of the Constitution including the election of the President, so those serving on it should be qualified, competent and impartial individuals with an intimate knowledge and understanding of the Constitution. The fact is that if a sitting president is able to both rig an election and control the Constitutional Court, it is hard to see how he or she can ever be voted out of office. In appointing unqualified individuals to the court, Lungu may have reasoned that it represented the best way of preparing for any possible legal challenge to his election and the constitutional battles over his eligibility or qualification to stand again.”

Dr Sishuwa argued that the ConCourt judges misconducted themselves during President Lungu’s eligibility case by abandoning the questions that were specifically asked by the applicants.

“Aside the question of their qualification, the judges have shown on more than one occasion that they are an incompetent bunch. One was in relation to the amateurish way in which they handled the election petition in 2016. The latest is in relation to how they handled Chishimba Kambwili’s legal challenge against the decision of the Speaker of the National Assembly to declare his Roan constituency seat vacant. In this case, both parties are claiming victory, on account of the court’s failure to give an unambiguous judgement. Yet another example of the incompetence of the Constitutional Court relates to how they handled the matter of whether President Lungu is eligible to stand for another term of office at the next election”, he said.

Dr Sishuwa said instead of answering the two questions that were asked by the applicants, the Court “threw away both questions and unilaterally invented a brand new question”.

“To avoid misinterpreting what the Court said, it is worth quoting their remarks at length as captured on page 51 of its 7 December 2018 judgement:

‘We note that although the Applicants argued in their submissions that this matter has been brought pursuant to Article 128(1)(a), which gives this Court jurisdiction to interpret constitutional provisions, the manner the above question has been couched personalises the issue in that it targets the incumbent President as an individual. We do not encourage this trend because the framing of the questions for this 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 we are dealing with in the present case is the office of the President. We of course understand what the question is or what it ought to have been and what it aims at, namely, the office of the President. The question therefore is 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 UNZA academic said both the language used by the court and the justification provided for inventing their own question and discarding the questions raised by the applicants were incriminating.

“There are three fundamental questions that arise from the reasoning of the Constitutional Court. First, from where did the judges draw their understanding of what the “question ought to have been”, outside what the parties to the case submitted? Second, which law or authority gave the court permission to discard or completely throw away the applicants’ specific questions and replace then with the court’s own question? Third, if the Constitutional Court found that the arguments presented by the applicants did not meet the required standard to give them the reliefs sought, based on the specific questions that were brought to the court for determination, why didn’t it dismiss the case? It is a known principle of the law that a court, as a neutral arbiter, should never volunteer anything, be it a question or issue without the knowledge and consent of the parties involved or outside what the parties have presented to the court for determination. The moment a court does that, then it joins one of the contending parties and loses its impartiality. When a judge loses their impartiality, then they lose their authority to be called a judge. Since impartiality is the hallmark of the independence of the judiciary, what the judges of the Constitutional Court did amounts to the highest form of incompetence and gross misconduct. This is a potential ground for their removal from office. The fact that all the six judges of the Court were unanimous in their shocking decision means they are all culpable”, he said.

Dr Sishuwa added that it was wrong for the ConCourt to threaten and intimidate citizens into submission of its judgements using contempt of court powers.

“I note how the Constitutional Court began its judgment on the eligibility case with a warning to potential critics right in the opening paragraph. The Court seems to have been fully conscious of the problematic nature of the judgment they were about to deliver and the likely ruthless criticism it would attract from the public. It therefore sought to insure itself from public accountability and criticism by introducing the judgement with a stern warming to critics. We should remember that this threat from the Constitutional Court came about two weeks after the Supreme Court sentenced a critic, Gregory Chifire, to a shocking six-year-prison term for contempt of court for criticising members of the court after they had passed what was deemed to be a controversial judgement”, said Dr Sishuwa.

“There is no need for judges to threaten or intimidate citizens, especially those who raise fair comment on their decisions. Article 118 (1) of Zambia’s Constitution provides that “The judicial authority of the Republic derives from the people of Zambia and shall be exercised in a just manner and such exercise shall promote accountability.” In its judgement of the infamous Chifire case, the Supreme Court, in interpreting the word accountability as used in the cited Article, stated that “The word accountability curtails judges’ functions by requiring them to be transparent in the justice delivery system (hence the need for open court hearings) and the need for a reasoned judgement, which explains to both parties why one has lost and the other succeeded”. In seeking answers to the questions I have raised above, I am holding the judiciary to account, since the judgement of the Constitutional Court was so ambiguous that we now have two camps that have emerged with different interpretations of the same judgement. I am also giving effect to Article 122 (4), which stipulates that “A person and a person holding a public office shall protect the independence, dignity and effectiveness of the Judiciary.” So, I hope that rather than sending me contempt of court summons, the Constitutional Court judges would thank me for being a good citizen who is performing a constitutional duty of holding them to account and protecting the integrity of the Judiciary.”