CONSTITUTIONAL Court judge Professor Margaret Munalula says President Edgar Lungu is barred by Article 106(3) to contest in the August 12, 2021 general elections as a presidential candidate because he has twice held office.
In her dissenting judgment, Prof. Munalula said the term which President Lungu concluded on behalf of late president Michael Sata following the latter’s death was not inherited as ruled by the majority as it was a full term although it lasted for 19 months.
This is in a matter where the Legal Resources Foundation limited, historian and political commentator Sishuwa Sishuwa and Chapter One Foundation limited petitioned President Lungu for abrogating the law by filing in his nomination papers as the PF presidential candidate in the August 12 general elections after being sworn into office as President twice.
The petitioners' contention was that the Head of State has been sworn into office twice because he was not a vice-president of the country when he concluded late Sata's term following the latter's death as ruled by the Constitutional Court in the Dan Pule case.
Judge Sitali on behalf of the majority judges Hildah Chibomba, Mungeni Mulenga, Palan Mulonda, Martin Musaluke, Mwila Chitabo, Matthew Chisunka and Judy Mulongoti said the term which President Lungu served when he was first sworn into office from January 25, 2015 to September 13, 2016 was an inherited term and not a complete term as defined by Article 106(6) of the Constitution.
"We reiterate that the issue of the presidential term of office from January 25, 2015 to 13 September 2016 was the subject of the decision in the Dan Pule case in which we exhaustively interpreted the provisions of Article 106(1)(3) and (6) of the Constitution," judge Sitali said.
She said Article 106(3) clearly states that a person who has twice been elected as President is not eligible to stand for election regardless of the period served. The circumstances under which the incumbent first assumed office are not covered by 106(5) of the Constitution so that Article 106(6) of the Constitution could be extended to apply to him.
Judge Sitali said Article 106(6) was meant to address the issue of inherited terms and how they should be treated in relation to Article 106(3) and that the issue of the treatment of the inherited term was the subject of interpretation in the Daniel Pule case.
“It was our view that the intention of the framers of the constitution was that when a person takes over the unexpired term of a president who did not complete his term of office, that person should be able to serve a substantial part of the unexpired term in order for such a term to be considered a full term,” judge Sitali said.
The majority ruled that the Electoral Commission of Zambia, which made the decision to accept President Lungu's nomination which was complained about was not brought before court.
Judge Sitali said it was misconceived to assert that the act by President Lungu to file his nomination papers amounts to performing public function and for them to submit that the same and all supporting documents he filed could be amenable to an order of certiorari.
“The prayer for an order of certiorari is untenable and is dismissed,” Justice Sitali said.
She said the bench held that Article 106(3) when read with Article 106(6) of the constitution does not bar President Lungu from contesting the forthcoming presidential election scheduled for August 12, 2021.
"For that reason, we hold that President Lungu's nomination which was accepted by the returning officer (Justice Esau Chulu) on May 17, 2021 is valid and that he is entitled to stand for election as President on August 12, 2021," said judge Sitali.
“The petitions have no merit and are therefore dismissed. Each party to bear own costs.”
But Professor Munalula dissented from the majority, ruling that it was not the court's judgment that determines whether President Lungu was eligible to contest the forthcoming presidential election but the constitution and the law hence the need for the court to interrogate the relevant provisions further.
“I do not find that the question of Lungu's eligibility was already settled before in the Dan Pule and Kapalasa case. President Lungu's nomination as a candidate in the August 2021 presidential election triggered this challenge under Article 52(4) making it necessary for this court to pronounce itself on his eligibility whether he has twice held office and therefore barred by Article 106(3),” she said.
“Regardless of what was said in the Pule case, determination of a matter as contentious as this, which is resolvable only by a conclusive decision on the legal interests in issue requires a more rigorous and pointed interpretation of the law than is the case with a generalised interpretation.”
Prof. Munalula said the application of Article 106 to the second term in office does not do away with the first term nor change its status in any way but it relates to it as a matter of existing fact which has not been erased by the law.
“I sought to stay true to the intention of the framers of the constitution as expressed in the letter of the constitution and law. This court has been] consistent in beginning the interpretation process with the literal approach. In my considered view, the literal approach does noes not necessitate excluding the purpose or spirit of the constitution as the two are more likely to be in tandem than not. A constitution such as ours which is very prescriptive leaves little room for doubt as to the framers' intentions,” Prof. Munalula said.
She ruled that Act no.1 of 2016 provides for among other things, the transitioning of President Lungu's first term of office.
Prof. Munalula said Section 7(1) indicates that the term of office of the Republican President at the time that the 2016 amendments took effect, continued in accordance with the repealed Constitutional provision under which the term of office begun.
“Section 7(1) ensured that when the 2016 amendments took effect in January 2016, President Lungu was enjoined to continue holding office in accordance with the constitution as it provided before it was amended in 2016. His term of office was to continue being governed by Article 35 of the constitution as amended in 1996 despite Article 35 being repealed by Article 106,”Prof Munalula said.
“Section 7 had the effect of saving Article 35 until President Lungu's term of office cane to an end by virtue of a new President elect under the 2016 Constitutional amendments taking over the office.”
She said locking President Lungu's first term of office to the repealed Article 35 also meant locking it out of Article 106 in the constitution as amended in 2016 as no provision exists in Act no.1 of 2016 to counter section 7(1) to bring President Lungu's first term of office into the purview of the 2016 amendments.
“The import of President Lungu's first term in office being locked into Article 35 is significant because although he took over the incomplete term of the president before him, there was no deeming provision in place under Article 35 to negate it for the purposes of the two term limit. His stay in office constitutes a full term despite the fact that it ran only for 19 months,” judge Munalula said.
“Article 106(3) does not refer to a person who had twice held office but it states that a person who has twice held office is not eligible for re-election. It is this careful use of language that leaves me with the firm conviction that the framers of the constitution were clear to their objective.”
Prof. Munalula said when President Lungu assumed office on September 13, 2016, Article 106 became applicable to his term of office and that the transition was seamless because the constitution of 1991 was still in force and the constitutional amendments remained true to the two-term limit.
“The term that began on September 13, 2016 did not cancel out his first term in office. If it had Article 106 would have said so. If the subjection of President Lungu's term of office to Article 106(4), (5) and (6) was what the framers of the constitution intended, they would have said so in carefully crafted, explicitly clear terms as introduced in the 1991 Constitution,” Prof. Munalula said.
“President Lungu's term of office that ran from January 25, 2015 to September 13, 2016 constitutes a full term of office as provided for in the repealed Article 35 of the constitution as amended in 1996 because the provision was saved by Section 7 of Act no.1 of 2016.”
Prof. Munalula said that the said term of office was excluded from the ambit of Article 106 because when President Lungu assumed office on September 13, 2016, he begun to serve his second term.
“He (the Head of state) has therefore been twice elected and has twice held office. I would hold that the petitions have merit and President Lungu is barred by Article 106(3) making him ineligible to run for office in the forthcoming 2021 presidential election,” said justice Munalula.
She agreed with the majority that each party bears their own costs.