By Ernest Chanda
NDC interim president Josephs Akafumba says the Constitutional Court handicapped the nation to a bad law by declaring President Edgar Lungu eligible to stand when in fact not.
Recently, Constitutional Court judge Professor Margaret Munalula in her dissenting judgment explained that Article 106(3) of the Constitution clearly disqualified President Lungu from standing for a third term because he has held office twice.
Agreeing with judge Munalula, Akafumba said the court set a bad precedent by ignoring the real question posed by the petitioners.
“So, the majority judgment of the ConCourt, whilst we are not going to quarrel with it because the law now is that the majority [judges] agreed with it, but I think people must still see through it that it is a bad law. It is our hope that going forward it will be rectified,” he said in an interview. “There’s no way holding office can be interpreted to mean completion of a term. Takwaba (it’s impossible)! Whether you’re using Greek, you’re using Indian, you’re using Spanish or English; or indeed Nyanja or Lozi, whatever! You cannot arrive at such a conclusion the majority ConCourt judges did. But we are handicapped because their decision is final. So, for now the PF candidate who is Edgar Chagwa Lungu qualifies as per their judgment. But really, it’s not good.”
He said judge Munalula correctly interpreted the law, a judgment that the nation expected from the rest of the bench.
“The challenge we have is, first of all, judge Munalula’s interpretation is the correct interpretation of the Constitution. This is because the exclusion clause under Article 106(3) relates to holding office. But how these majority judges imported the ‘term’ holding office up to now myself I don’t know,” Akafumba added. “It was completely, totally, wrong. The framers of that Constitution wanted to put a cap. And now the definition of holding office, what is holding office? Immediately a person is sworn in, he holds office. Assuming I win as president and thereafter I’m sworn in; God forbid 48 hours later I drop dead, I would not have completed a term. But I would have held office as the shortest president who was in office for 48 hours; that is the interpretation.”
And Akafumba implored the rest of the Constitutional Court judges to read judge Munalula’s judgment and make amends in future.
He contended that the court ignored the question at hand and introduced its own.
“And I wish to congratulate judge Munalula. I think she interpreted the law as it is, without bending, without fear or favour. Those are the judges that we need in this country because once you compromise the judiciary then you have killed the entire nation. We salute judge Munalula’s dissenting judgment although it will have no effect on Lungu’s standing because the majority supported him,” said Akafumba. “But judge Munalula’s colleagues in the ConCourt must also take time to read her argument. If you go down to the Dan Pule case, the question there was specific. They named an individual – ‘does Lungu qualify’ – that was the question. But they (judges) framed the question to now say the President…
Look, there’s nowhere in the world, you go and ask for K20 as a debt, the court on its own motion changes to read K100 and passes judgment! How? That’s exactly what happened. And they carried it over from Dan Pule to what we saw now on the eligibility case.”
In her dissenting judgment, judge Munalula said President Lungu is barred by Article 106(3) to contest in the August 12, general elections as a presidential candidate because he has twice held office.
She 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,” said judge Sitali. “…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. 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.”
Judge 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,” judge Munalula said.
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,” said judge Munalula. “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.”