PRESIDENT Edgar Lungu’s eligibility to contest the 2021 polls debate has been revived after the Constitutional Court (ConCourt) poured water on the then ill-conceived “Third –Term” debate.
But this time around the debate is orchestrated to instil fear in the head of State and the governing PF by threatening to petition the incumbent via Article 52 (4): “A person may challenge, before a court or tribunal, as prescribed, the nomination of a candidate within seven days of the close of nomination and the court shall hear the case within twenty- one days of its lodgement.”
However, President Lungu will successfully file his nomination papers as PF’s 2021 Presidential candidate whilst serving as a Republican President in line with Article 52: (1) “A candidate shall file that candidate’s nomination paper to a returning officer, supported by an affidavit stating that the candidate is qualified for nomination as President, Member of Parliament or councillor, in the manner, on the day, and at the time and place set by the Electoral Commission by regulation. (2) A returning officer shall, immediately on the filing of a nomination paper, in accordance with clause (1), duly reject the nomination paper if the candidate does not meet the qualifications or procedural requirements specified for election to that office.”
In short, both a Republican President and PF’s 2021 Presidential candidate will be in the person of Edgar Chagwa Lungu.
An election petition initiated via Article 52 exempts the Republican President who is seeking re-election: He enjoys full executive powers and immunity from legal suits or criminal prosecution under Article 98 (1) “A person shall not institute or continue civil proceedings against the President or a person performing executive functions, as provided in Article 109, in respect of anything done or omitted to be done by the President or that person in their private capacity during the tenure of office as President.”
The constitution framers were alive to a Republican President’s immunity from legal suits or prosecution.
So, if the learned State Counsel, John Sangwa and his counterpart Choma Central Member of Parliament Cornelius Mweetwa petitioned President Lungu’s eligibility to contest 2021 polls, then the Constitutional Court (ConCourt) will have only two options: Either dismiss the case with costs or entertain the matter for experimental or academic purposes.
First and foremost, the ConCourt cannot revisit its earlier judicial decision as that would cast serious aspersions on its judicative function.
Secondly, petitioners will grapple with this challenge: How do they separate the PF’s Presidential candidate from a Republican President in one person of Edgar Chagwa Lungu for them to serve Court summons?
However, the ConCourt can only entertain the case for experimental or academic purposes as Article 52 exempts the Republican President who is seeking re-election.
Moreover, under the most misinterpreted Article 106 (3) President Lungu is eligible to contest 2021 polls: “A person who has twice held office as President is not eligible for election as President.”
The “twice held office as President” refers or captures the scenario effective January 5, 2016 when President Lungu appended his signature on the amended constitution. And amended law does not look back! Then, begs the question: How many times has President Lungu held office since January 5, 2016? The answer is once!
First and foremost, the President‘s full term of office is five years.
What about Mr Lungu’s election as President in 2015? Many President Lungu’s eligibility to contest 2021 polls critics get confused with this question.
Since 2015 elections took place before the amended constitution, we need a transition law to interpret the event. Unfortunately, the transition law or bridge to help us transport a past event in the current constitution does not exist. So, what do we do?
Either ignore the past event as the amended constitution does recognise it, or borrow a law in the current constitution to help interpret the past scenario.
The Article 6 (6) defines the 2015 election scenario: “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.”
President Lungu served for only 20 months from September 20, 2015 to September 13, 2016 – technically, President Lungu did not serve the full term of office. Therefore, he is eligible to contest the 2021 polls!
The issue of public interest: The State Counsel Likando Kalaluka‘s voice, who is also Attorney-General, would have offered legal guidance to the nation. Equally, PF legal committee chairperson Brian Mundubuile, who is also Parliamentary Chief Whip, should have provided legal counsel than leave the nation speculating.
The raging debate on President Lungu’s eligibility to contest 2021 polls: Calculated to throw dust in the Zambians‘eyes and influence their perception.
As for Mr Sangwa, he lamentably failed to interpret the Article 52, read together with Article 98.
Contrary to assertions that many Zambians will petition President Lungu’s eligibility to contest 2021 polls by the Choma Central lawmaker, many Zambians who are exasperated with Mr Hakainde Hichilema’s five consecutive loss of elections since he took over the mantle from UPND’s founding leader late Anderson Mazoka will petition his eligibility to contest the sixth time as no Convention has been held to indorse his candidature.
The UPND has never held a convention ever since the 2006 controversial convention that ushered in Mr Hichilema as its leader, a situation which contravenes Article 60 sub -section 2(d) of the current constitution which requires a political party to hold periodic primary elections.
As a matter of fact, Mr Hichilema’s opponents may use Article 52 to cripple his campaigns.
Mr Sangwa and Mr Mweetwa should begin to prepare how to defend Mr Hichilema should Zambians petition his eligibility than influence public perception on President Lungu’s eligibility case that is already settled by the Court of law.
Interpreting the Constitution in this country has been the “spoiled child” of the so-called legal experts.
It’s for this reason we need law interpreters and not legal experts. And it’s for the same reason Article 2 of the current constitution gives every Zambian citizen the right to defend the constitution: “Every person has the right and duty to – (a) defend this Constitution; and (b) resist or prevent a person from overthrowing, suspending or illegally abrogating this Constitution.”
So, if legal experts will not interpret the law, then law interpreters shall became the modern lawyers.
By JUSTIN MUPUNDU,
Media practitioner/Human Rights defender.