By Isaac Mwanza
Introduction
On 9th August, 2016, this author ignited the debate on whether President Lungu qualifies to contest the 2021 elections. Just like Canadian-based lawyer, this author was a view that President Lungu did not qualify for President until when the Constitutional Court of Zambia passed the landmark Judgment in Dr. Daniel Pule and 3 Others [Selected Judgment No. 60 of 2018]. While the Court did not plainly declare that President Lungu is eligible to contest 2021 elections, the Court addressed key issues that paved way for the President to contest. Let’s discuss these two issues.
1. President Lungu never served a “term” between 2015 and 2016
What appears not to be contentious at this point is the clear declaration by the Constitutional Court that the period commencing 25th January, 2015 to 13th September, 2016 which President Lungu was elected and occupied the office of President was not a term. This is clear from the pronouncement of the Court on page J83 where the Court stated:
“It therefore, follows that in the current case, the term served [by President Lungu] that ran from 25th January, 2015 to 13th September, 2016 and straddled two constitutional regimes, cannot be considered as a full term.”
There is no dispute now around this pronouncement as its clear for all to see.
2. That holding office refers to a term
The debate has now shifted to provisions of Article 106(3) which reads as follows:
“Article 106 (3)
A person who has twice held office as President is not eligible for election as President.”
First this provision is different from the repealed provision of 1996. In the 1996 Constitution, the provision was very clear and left no room for further interpretation. The repealed provision read:
“Article 35. (2) [Now repealed]
Notwithstanding anything to the contrary contained in this Constitution or any other law no person who has twice been elected as President shall be eligible for re-election to that office.”
No doubt, if the repealed article 35(2) had remained in the Constitution, President Lungu was going to have been out of the race as he has twice been elected into office. But this provision is no longer part of our law. It has been replaced, and for good reasons. Those reasons are beyond the current discussion here.
So the question the question we are dealing with now is about article 106(3) as it exists in the Constitution. What did the Court say about the meaning of the phrase, “twice held office”?
On page J75, the Court said:
“It is imperative to first determine what would be considered as ‘holding office’ under Article 106. In particular, Article 106 (2), which we have already quoted above states that a President shall hold office from the date the President-elect is sworn into office and ending oh the date the next president-elect is sworn into office.”
However, the Court did not stop there but, on page 59, asked a very important question: “For how long can a president hold office?” In effect, the Court was asking whether a person who is sworn into office for 1 day, 1 year and eight months as did President Lungu or 5 years can qualify to be said as holding office.
The firm answer by the Court to settle this question is found on page J82 where the Court stated:
“The sub-articles (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 twice held office under Article 106 (3) in interpreting the provisions of that Article.”
As everyone can see from the last sentence in quoted part, the provision regarding the full term must be applied to defining what is meant by twice held office under Article 106 (3).
There is no dispute, at this point, what “the provision regarding the full term” which the Court was referring to are. Anybody who has served for more than 3 years has held office of the President and anybody who has served for less than 3 years has not held office of the President. This is what the Court was saying to be holding office.
To add clarity to the Court said, one can only check its pronouncement on page J78 where the full bench stated:
“Under Article 106 (6) (b) it is now possible for one to occupy the office of President for a period which is less than a full term in addition to two full terms of office. Meaning that a President can be in the office for a total of almost 13 years.”
In the quote above, the Court was even more careful in the selection of words. Instead of saying, it is now possible for one to “hold the office” of President the court preferred to use the word “occupy the office of President.” When you occupy the office of the President after being elected and sworn into office of President, or in case of a Vice President who automatically assume that office, say for less than 1,068 days or 89 months (which is less than 3 months), you would not have held office, despite fact that you were sworn into that office.
In a nutshell, the Court was conclusive in pronouncing itself on the current provisions of the Constitution. (1) the term President Lungu served from 25th January, 2015 to 13th September, 2016 (which was 20 months or 1 year six months) is not a term under this Constitution and (2) a person can only be said to have held office under Article 106(3) if they occupied that office for a minimum of 3 years and maximum of 5 years.
Did the Court pronounce that President Lungu is eligible to stand? No, the Court would not do that unless the President, like any other candidate filed the nomination and someone challenged the nomination. Before one files the nomination, the Court has always taken the matter is premature. So what is the significance of the Eligibility Judgment then?
The importance of the Court having pronounced itself that the term President Lungu served from 25th January, 2015 to 13th September, 2016 is not a term under this Constitution and (2) a person can only be said to have held office under Article 106(3) if they occupied that office for a minimum of 3 years, is that it gives an indication on even to those who will have questions when the President files the nomination.
In 2021, the nomination will be filed under the Constitution as amended in 2016 and not under the 1996 Constitution which had stated that no person who has twice been elected as President shall be eligible for re-election to that office. The current law is that anybody who has occupied the office of President for a minimum of 3 years will have held office once. When they serve for another 3 years, they would have held office twice.
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Conclusion
From the above, holding office twice means that one has not only been elected twice or sworn into office of the President twice but that the combined terms for which we occupied office was a minimum of years but one can occupy office for 13 years and still be deemed to have held office twice under the current law, provided the other time was elected and sworn into that office is less than 3 years and thus disqualified from being referred to as holding office. Of course, Hakainde Hichilema, Chishimba Kambwili, Chilufya Tayali and President Lungu who want to contest 2021 elections, none of them can be said to have an outright ticket to contest until they file in their nominations and ECZ accepts the nomination or rejects the same. Once the matter is challenged in Court, the Court can then pronounce itself on it. For President Lungu, he is serving the first term of office which is ending in 2021; the inference of the eligibility judgment also is that the 20 months he occupied office do not qualify for having held office under the current Constitution.