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.
