2016 constitution cannot be relied on to invalidate Lungu’s first term – Chizombe

2016 constitution cannot be relied on to invalidate Lungu’s first term – Chizombe

STUDENT leader Michelo Chizombe has argued that the Constitutional Court was wrong to rely on the 2016 constitution when it pronounced that Edgar Lungu’s first presidential term was not a complete term, yet he was elected into office under the 1991 constitution.

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Chizombe’s lawyer Micheal Moono argued that; Lungu was sworn into office under the 1991 constitution which clearly defines what constitutes a term, therefore the Court could not rely on the amended constitution of 2016 which was a fresh document to invalidate his first election.

Moono said the 2016 Constitution as amended, could only come into effect after the expiration of his term under the 1991 Constitution by going to an election but that did not happen, as the Constitution was altered and effected into law whilst Lungu was still serving as president under the 1991 Constitution.

In this matter Chizombe has petitioned Lungu in the constitutional court questioning his qualifications to contest for presidency in the 2021 election and whether he can push for a third term for the second time, after assuming the office of President twice.

He wants the Court to declare that Lungu’s participation in the previous election was unconstitutional.

Chizombe also wants the Court to declare that it was illegal for the Electoral Commission of Zambia (ECZ) to include Lungu on the ballot paper in the last poll.

He is seeking a pronouncement that Lungu is not eligible to contest a presidential election under the current constitution as read with the now repealed 1991 Constitution (as amended).

Chizombe is seeking a combined interpretation of Sections 7 of Act no.1 of 2016 and Section 2 of the same Act.

He also wants the Court to declare that the entire Article 106 of the Constitution (Amendment) Act no. 2 of 2016 did not apply to Lungu’s first presidential term.

Submitting before judges Margaret Munalula, Arnold Shilimi, Martin Musaluke Judy Mulingoti, Mudford Mwandenga, Mapani Kawimbe, and Kenneth Mulife, the petitioner said Lungu and the electoral body abrogated the law with regards to the last election.

Moono argued that Article 106, in its entirety, does not apply to Lungu’s term of office which ran from January 25, 2015 to September 13, 2016 as the said term of office was deliberately and intentionally excluded from Article 106 by Section 7(1) a transitional provision found in the Constitution of Zambia Act no.1 of 2016 which tied it to the repealed Article 35 of the Constitution as amended in 1996.

He said the Court has powers to interpret the provisions of the Constitution and interrogate contraventions by Lungu and the Electoral body.

“It is not in dispute, that Lungu participated and won the presidential election in 2015 which culminated into his first term. At that time, Zambia was governed by the 1991 Constitution amended in 1996. He sought the mandate of the people according to the rules and obligations provided in that document,” he said.

“The people of Zambia decided to give him mandate within the bounds of that document. We can actually say that he formed a contract with the people of Zambia, a Constitutional contract. That contract was set to expire at the expiry of his term and the conduction of fresh elections. That did happen in August, 2016, when he participated in the presidential elections.”

He said Lungu signed a second Constitutional contract with the people which was set to expire at the end of his term upon the conduction of fresh elections in 2021.

“What the petitioner argues is that Zambia enacted a new Constitution in 2016 during which time the former president was still president. To attempt to apply the 2016 document to a social contract entered into within the bounds of a different document is unconstitutional,” Moono said.

He argued that Chizombe’s issues have not been decided upon therefore Lungu cannot say that his eligibility debate was settled on merit.

“There cannot be any res judicata (already decided upon) where a party argues that the judgement is rendered in ignorance of a point of law,” Moono said.

“Chizombe has brought a new matter before you, new reliefs, he has argued that previous judgements made in the three previous cases ignored statutory provisions and he has asked this court to review those provisions as it interogates his petition and he has no doubt that in doing so, the court will reach an inescapable conclusion that Article 103(6) disqualified any person who seeks election more than twice.”

Lungu’s lawyer Bonaventure Mutale argued that the petition was incompetent on grounds that the court has no jurisdiction to entertain it.

He said the constitution has specific provisions or mechanisms for challenging the nomination or election of a candidate.

“As regards to nomination Article 52 provides for the manner in which a person dissatisfied with the nomination of a candidate in which such can be challenged, which is seven days.An attempt to challenge the nomination at this late stage is misconceived and an abuse of the court process,” he said.

“Article 106(3) provides a mechanism for the challenge of a person who has been declared president but that is not the case we are dealing with, it is a very unique question presented before court as Chizombe has petitioned a losing candidate.”

Mutale argued that there’s no provision that caters for challenging a losing candidate in the constitution.

“Lungu’s eligibility has been deliberated upon in three previous cases by the court. Those judgement are erudite, as the law in those judgments firmly establish Lungu as eligible to contest future elections,” said Mutale.

Makebi Zulu said the Court had already pronounced that Lungu’s first term in office was not a full term as it was an inherited term, following the death of late President Micheal Sata.

“You said he was eligible, there is no reason to back track. This matter was already dealt with. The court was fully aware of those provisions in deciding the matter and concluded that Lungu was eligible,”he said.

“The petition is asking you to review your judgement. In the Dan Pule case you said you would amend the question so that everyone one is bound by it. The court having made the that conclusion everyone is bound by it. Certainly it is a hallmark of a good judicial system.”

He said nothing can be changed when a court pronounces itself on a matter.

“Lungu can’t be harrased again by being brought to court on a matter that has already been brought to court,” said Zulu.

Jonas Zimba said; “Out of nothing comes nothing and this matter has brought nothing to court. The court cannot open this matter. The court cannot entertain this matter so that posterity can be fair upon all of us as you already made your decision.”

As per tradition, the ECZ lawyer Triza Phiri said the electoral body would not make any submissions but, it would rely on its answer to the petition and supporting documents which it had filed.

Solicitor General Marshal Muchende argued that Chizombe’s case was sui generis (unique) as it had brought a new dimension that has not been determined by the Court especially Section 2 of Act no.1 of 2016 as read with the provisions of Section 7 of the said Act.

He said the past petitions did not take into consideration Section 2 of the Constitution Amendment Act no 2 of 2016 which defines the operative of the Constitution.

“The Dan Pule case was purely centered on Article 106 and other sub articles under it and there was no contextulising. We noticed by reading all those judgements that this provision, Section 2 was never discussed. The court discussed Section 7. There was no contextulising of Section 2,”he said.

He indicated that the court made wrong inferences in the Dan Pule case regarding the provisions and Mutale was part of the team that made the Court arrive at such a wrong decision.

“There was no need to provide for transitional period in Section 7 because the issue was catered for in Section 2 due to the Constitution which applied on the effective date. It was speaking to twice elected and not holding office,”he said.

“It was wrong for the court to resort to making inferences as was submitted by Counsel. It’s to that extent that we agree that this court does have power to look at these issues because this court has jurisdiction to interpret the Constitution.”

Muchende added that the issue of making decisions in disregard of the law (per incurium) by the majority in the past, can be revisited by the Court.

The hearing was not short of drama as State advocate Chibesa Mulonda simmered tempers in the the humorless debate, when he sent everyone into fits of laughter after he fumbled in his submissions that the petition be dismissed on reasons that Chizombe had brought new arguments about Lungu’s eligibility and that he was not a party to the previous petitions.

He quickly corrected his line of thought and prayed that the petition be sustained.

In reply Moono emphasized that the court should correct the wrong decisions in the previous petitions to avoid creating a bad law.

“We therefore pray that this court exercises it’s jurisdiction to interpret the provisions as prayed to interrogate the contraventions of the Constitution by Lungu and ECZ: and in so doing, to declare the effect of those interpretations on the constitutionality of Lungu’s participation in the presidential election of 2021.”

Court president Margaret Munalula said judgement will be delivered on December 10, 2024.

By Mwaka Ndawa

Kalemba October 8, 2024.