By Dr. Munyonzwe Hamalengwa
Courtesy: The Mast
My thesis is that it is the Constitutional Court that illegitimately made President Lungu eligible for the third term and not the constitution. This was how the ConCourt did it. First they answered the question that was not posed by the Applicants/Petitioners Danny Pule et al by rephrasing the legitimate question posed by the same, who in fact should not have been accorded standing because the person most directly affected was present, able and capable of launching the suit himself. If the President was shy about it, his party was there to do it for him. Resources would not have been a problem.
The Petitioners claimed that they are members of the opposition but sought a result that favoured the incumbent thus disclosing the oblique motive and intrigue behind this momentous legal suit which showed the Constitutional Court in its worst colours todate. I claim that the Petitioners should not have been accorded standing and the application should have been thrown out immediately upon its being filed. That the Court entertained the suit is not conclusive of its legitimacy. But the standing issue is for another day.
Since the Court embarked on rephrasing the Petitioners’s question and came to the conclusion that on their rephrasing of an unasked question, the President was eligible, pretty much supplies circumstantial evidence or inference that the court came to the conclusion that it came to, because that is the decision the court had wanted to gift President Lungu in the first place. In their private deliberations on rephrasing the question and to come to the result that they came to, much thought was given on these subjects.
As they discussed the rephrasing of the question, the answer to the rephrased question was palpably clear and obvious. That is why they rephrased the question. To come to a decision expected of and definitely desired by the bogus opposition parties and certainly by President Lungu and the PF. It helps if readers can actually read the judgment itself to discern critically what I am theorizing here. The Court did not answer the questions posed to it. It answered the question the court on its own motion, posed for itself.
The clincher is this: why didn’t the court rephrase the question in the following manner: Does being sworn in in January 2015 and being President constitute “holding/held office” and does being sworn in in September 2016 also constitute “holding/held office making it two times a person would be “holding/held office? If the rephrased question was like this, the answer would have been “Yes” and therefore making President Lungu ineligible to stand for office a third time.
Why didn’t the Court rephrase the question this way? Instead the Court chose to interpret or rephrase the question to state that it is a “term of office” of five years which is in issue. There is no legitimate reason why the interpretation should not have revolved around the term “holding/held office” instead of the meaning of the “term of office”. These issues generate two opposite answers, results and consequences.
In South Africa Mbeki and Zuma didn’t finish their entire terms of office but no one insisted that they must be allowed to finish their terms of Office. In the US, Lyndon Johnson couldn’t have insisted on running for a third term because the first term he inherited after John Kennedy was assassinated was not a full term. And the Supreme Court of the United States would not have allowed a third term.
The argument I am making here is that the choice of the rephrased question gives away the design in result that the ConCourt desired. If they rephrased it to concentrate on hold/held office as is my submission, they would have found that President Lungu had held office twice by being sworn in twice and actually occupying State House on two separate periods, and therefore ineligible to run for a third term.
Their choice that they should concentrate on the meaning of the term of office, led them to the desired result. The absurd result is that term of office is five years and when you multiply that by 2, it becomes ten years, but now if President Lungu is reelected in 2021, he would have served office for eleven years and six months whereas if he was barred from running again in 2021 because he had held office twice, he would only be in office for six years and six moths.
The latter is because he would have held office twice and prohibited from running a third time. Which is absurd, eleven years and six months when the constitution only allows ten years, or six years and six months when the constitution only allows ten years, and in this case, with an explanation that the latter is like that because someone took over from a dead President but held office twice pursuant to constitutional restrictions?
The public must know that a judicial decision is not prefabricated. A judicial decision doesn’t write itself. A judicial decision is a justification of the result already reached before the judgment was written and issued. It is an attempt to persuade the public of the soundness of the decision. Further, especially in this case, the Court rephrased the questions asked by the Petitioners and the Court answered their own self constructed question that was not before them, they knew as already stated above what question they wanted to ask and answer, and therefore the answer they wanted to give was known before the decision was written, a decision which was mere justification through persuasion of what had already been decided.
The public must also know that there are many tools of statutory interpretation and constitutional interpretation. The choice of the tool determines the result. That is why judges who seemingly went to the University of Zambia together or Harvard Law School, sitting together can come to different interpretations. This is backgrounded by the choice of the interpretative tool or tools and other predilections. The judges can choose to read up or read down the legislation, the judges can fill in gaps or refuse to do this, the judges can answer or refuse to answer a question as phrased, the judges can engage in constitutional exemptions, the judges can use purposive or rigid analysis, the judges can be technical or generous and more.
There is vast literature on this and the interpretative tools have many different names. Professor Justice Margaret Munalula of the impugned court has a leading book on the subject, entitled, “Legal Process”. I was trained abroad and my favourite leading book on the subject is, “Sullivan on the Construction of Statutes”, by Ruth Sullivan. I also like the book which I used in my Legal Research course in first year of law school by Louis-Philippe Pigeon, “Drafting and Interpreting Legislation”. I read Justice Richard A. Posner’s book, “How Judges Think” a lot as well as Andrew Goodman’s book, “How Judges Decide Cases: Reading, Writing, and Analysing Judgments”; Bakan, “Constitutional Arguments in Canada” and many other works.
It has been stated that the law is what the judges, especially those from the Apex Court, say it is. Indeed law is what the judges say it is until their interpretation is overturned by legislative changes or overturned by the Apex Court in another case. What the judges say the law is, in my submission is never final. This thought process is for another day. I picked up this phrase in Canada which I use all the time: “In Canada, a judge is placed in a position where he has nothing to lose by doing what is right, and nothing to gain by doing what is wrong”. This should be the spirit everywhere, I submit. I hope it becomes the spirit in Zambia.
President Lungu is eligible for a third term because the ConCourt designed a question not asked by the Petitioners but the Court which gifted him with the eligibility but had the ConCourt rephrased the question to interpret whether being sworn in twice and holding office twice precluded President Lungu from running for a third term as the Constitution clearly provides and precludes, we would not be debating this issue now. President Lungu has held office twice. He will be eligible because of the ConCourt and not because of the constitution.
Dr Munyonzwe Hamalengwa is the author of “The Politics of Judicial Diversity and Transformation: Canada, USA, UK, Australia, South Africa, Israel, Colonial and Post-Colonial Countries and International Tribunals” (2012).