A Spectre is Haunting Zambia in 2021: threatened unconstitutional, treasonous 3rd Term Coup.
By Dr. Munyonzwe Hamalengwa on January 4, 2021
A spectre is haunting Zambia: the spectre of a threatened unconstitutional and treasonous coup de ^tat by President Edgar Chagwa Lungu and his Patriotic Front (PF) state and government. Any government that overthrows the constitution by unconstitutional means stages a treasonous act and therefore abrogates its right to govern and could be overthrown by any means necessary to restore lawful overthrown constitutional order engendered by the usurperous and now illegitimate government. We terminated white colonial domination using all means of protest and rejecting the straightjacket means palatable to violent colonial rulers. We overthrew Black post-colonial domination and internal colonialism by any and all available means of protest. We built a constitutional democracy beginning in 1991 on the ashes of white colonial and Black internal colonialism of Dr Kenneth Kaunda. We defeated the Frederick Chiluba regime when he wanted to regurgitate the third term two-steps back dictatorship. We defeated Bill 10 that threatened to eviscerate our 1991 foundational democracy to reimpose a facsimile of the one-party dictatorship. We are not going back. Those who think they can reimpose repression and constitutional or unconstitutional dictatorship will only do so over our dead bodies and on our pool of blood, ours or theirs. This regime is already guilty of treason for forcing us to make this deadly choice after our long and hard-won fight for democracy. The majority of the ruling cartel has never fought for anything other than the carcass of the bounty of corruption.
But as late Prosecutor Nsama Nsama Chipyoka who the present police under the present Commander-in-Chief killed on December 23, 2020, opined, “history written in blood cannot be erased by history written in ink”, and so it will be if this regime tempts the peaceful Zambian people to the brink. That is the spectre that is haunting Zambia that I wish to write about in this column.
This regime wants to drench this peaceful tribally-coexistent country in blood to impose a third term for the President when it is clearly prohibited by the two Constitutional Acts of 2016, brought about and signed by President Lungu with his eyes closed despite the caution by General Godfrey Miyanda to the effect that he must sign the Constitutional Acts with his eyes open. We cannot pay for someone’s mistakes. It is to these Acts that I now turn my attention to.
The Constitution Act No. 1 of 2016 is the interpretative instrument for The Constitution Act No. 2 of 2016 (otherwise known as the “Constitution as Amended”). The Constitution Act No. 1 of 2016 dictates how the Constitution Act No. 2 is to be interpreted. Whenever there are significant changes to the law or Constitution, the transitional interregnum is explained in the enabling act as to what the old and new legal regimes mean in the interim or transitional period before the new regime supplants the old regime.
Constitution of Zambia Act No. 1 of 2016 states as follows: “An act to provide for the printing and publication of the Constitution; to provide for the savings and transitional provisions of State organs, State institutions, administrations, offices, institutions and laws; to provide for the savings of succession of assets, rights, liabilities, obligations, and legal proceedings; and to provide for matters connected with, or incidental to, the foregoing”.
In this Constitution Act No. 1, it is clear that the word “Constitution” is used in two clearly distinct senses: “Constitution” of 1991 and “Constitution as amended” by Act No. 2 of 2016.
For clarity, let me quote the above two senses in which the word Constitution refers. Section 2(1) states unequivocally; “In this Act, unless the context otherwise requires-“Constitution” means the Constitution of Zambia, 1991, in force immediately before the effective date…. This is the first sense. The second sense is spelt out in Section 4. “Subject to this Act, the Constitution as amended in Act No.2 of 2016 shall come into operation on the commencement of this Act”.
We now go back to the Preamble which states that Act No.1, among other raison detre, is to provide for transitional provisions for existing state organs, state institutions, administrations, offices, institutions and laws etc.
What does the Act say about the office of the President? Section 7 deals with the Executive; “Section 7. (1) The President shall continue to serve as President for the unexpired term of that office as specified by the Constitution in accordance with the Constitution”. This Act has already dictated in section 2. (1) that “Constitution” means the Constitution of 1991. It now spells out loudly and clearly that the President will complete the unexpired term of office pursuant to the 1991 Constitution under which he was elected.
Section 7.(1) is unequivocal that the unexpired term of office constitutes continuation without regard to length. It could be five minutes or three months or three years. It simply states that “the President shall continue to serve the unexpired term as provided for in the Constitution of 1991.
For further clarity, Section 7(2) says “A person holding the office of Vice-President, Minister or Deputy Minister shall continue to hold that position under the Constitution until that appointment is terminated by the President in accordance with the Constitution”. We know that this refers to the 1991 Constitution because under that Constitution, the VP was appointed by the President and could be fired by the President. That is not the case with the 2016 Constitution as amended where the President has a running mate whom he can conceivably not dismiss. We also know that the section is referring to the 1991 Constitution when there were Deputy Ministers. There are no Deputy Ministers under the 2016 Constitution as amended.
Section 13 dealing with the Legislature further clarifies the effect and import and relationship between the 1991 Constitution and the Constitution Act No.2 (Amendment) of 2016. No new Constitution scrapes out history. Constitutions are prospective and not retrospective. They continue what is already in existence like laws or discontinue but cannot write out of existence what has already taken place like blanking out a term of office that has already been served. A new Constitution cannot be used to interpret an older Article of the Constitution, especially one which is clear and unambiguous. In this case, Section 7 (1) is even clearer: the President shall serve the unexpired term of office in accordance with the 1991 Constitution. As already stated, this can be five minutes or any length of time. Constitutional interpretation is prospective and not retrospective as already stated.
For a person to hold office, he must have been elected and sworn into office. In January 2015 President Lungu was elected and sworn in as President and served the unexpired term of office of the deceased Michael Sata. This is recognised in Section 7.(1) of Constitution Act No. 1 enacted by the present state and government. In August 2016, President Lungu who signed the two Acts in January 2016 was elected again and in September 2016 was sworn in for the second time. In January 2016, Lungu signed the Constitution as amended which contained Article 106 (3) which provides that anyone who has held office twice shall not be eligible to run for office for a third term. Section 7.(1) recognised that the unexpired term was served by someone and we know it was Lungu. No one doubts that from September 2016 to August 2021 Lungu was and is serving a term of office. When you marry the two: Section 7. (1) of Constitution Act No.1 and the period just mentioned above, Lungu has served two terms. Under the 2016 amendments, the length of the unexpired term is specified in Article 106(5)(b) but it only relates to the Vice-President or the Speaker of the House when a vacancy occurs. This specification of a full term or what constitutes it and or how it is apportioned was not the case when Lungu assumed the Presidency in 2015. And he did not jump from the position of Vice-President or from being a Speaker. Article 106(5)(b) therefore does not qualify the holding of office twice limitation to the Presidency in Lungu’s case. Even this would not apply to him as the Constitution 1991 provided for what would happen under the circumstances. Remember Lungu was first elected under the 1991 constitution and served the unexpired term of office of President Sata. Law seeks clarity and repetition is mandated to the annoyance of non-legally trained minds. No new article in the 2016 Act No. 2 qualifies in any way that the unexpired term when Lungu got elected in 2015 was not a full term. It couldn’t because a new Constitution cannot reinterpret the meaning of a clear previous Article of the previous Constitution. Even the doctrine of the Constitution as a living tree cannot bear this burden.
The reason for the two-term limit was to prevent one-party-state dictators who stayed in power forever. It would be against the purposive constitutional interpretation to attempt to bring back surreptitiously what had been democratically and deliberately cast asunder. Africa was on the move copying the American two-term limit to engender democracy on the ashes of perpetual dictatorships. That elephant is always in the room.
Lastly we must ask the following questions: how many people who talk or write about the third term issue have actually read Constitution Act No.1 of 2016 and the Constitution Act No. 2 of 2016? Ask all of them by way of research. Or are people simply choosing political preferences irrespective of what the Constitution provides? My opinion is that this is the case. It behooves every literate Zambian to read these instruments for guidance and to interpret it to those who need help.
It is stated that the ConCourt eligibility decision of December 7, 2018 disposed of this issue. That is that the President is eligible for a third term. It is stated further that the ConCourt found that the transitional provisions are silent on the issue of length of term of office or what it means to hold office or how long. This is further from the truth. Section 7.(1) of Constitution Act No. 1 of 2016 is clear. The unexpired term is a term of office regardless of length pursuant to the 1991 Constitution under which Lungu was elected. The Constitution cannot give Lungu 11 years and 6 months when the Constitution only allows two terms amounting to 10 years.
It is also stated that the ConCourt found that Lungu is eligible for a third term. The ConCourt never did any such pronouncement. It stated that the issue of Lungu’s eligibility was otiose. This is not a pronouncement of eligibility. Lungu was not before the Court. Lungu is not eligible. If the ConCourt found Lungu to be eligible to stand a third time, which it did not, the question posed by UNZA lecturers Kaaba and Sambo would continue to arise: where is ConCourt jurisprudence taking Zambia? It would be my considered opinion that if the ConCourt found Lungu eligible for a third term, [it would] be either gross incompetence or circumstantial evidence of judicial corruption. Neither has any redeeming qualities.
If the ConCourt found Lungu eligible, that decision of December 2018 is hereby set aside as Lungu is not eligible for a third term after holding office twice.
The other important question is: doesn’t the PF have someone else to nominate because Lungu does not qualify under the 1991 Constitution or the 2016 Constitution as amended? An unconstitutional and treasonous coup de ^tat is a recipe for bloodshed in Zambia. Leave us in peace. Or simply jump over the mighty Victoria Falls, alone without involving the majority of Zambians who value the current constitution despite its flaws. There are also so many trees in Zambia for the ruling cartel to hang themselves without involving Zambians in that self-suicide.
We fought colonialism and won. We fought Kaunda, we won. We fought Chiluba, we won. Victory is certain. Or defeat over our dead bodies. But “History written in blood cannot (and will not) be erased with history written in ink”. We shall defend this Constitution which clearly and unequivocally states in Art. 106 (3) that anyone who has been elected twice to the office of President or held office twice is not eligible to run a third time. Lungu has been elected twice and has held office twice. The least I encourage you to do is read Constitution Act No. 1 of 2016 and Constitution Act No. 2 of 2016.
Dr Munyonzwe Hamslengwa is the author of “Class Struggles in Zambia, 1889 to 1989 & the Fall of Kenneth Kaunda, 1989 to1991″(University Press of America) and many other books.