Hypothetically, the ConCourt would be within its constitutional powers to stop Lungu from his suicidal third term bid.
Finally, there are only three super forces that can stop President Edgar Lungu from his suicidal mission to tear down our hard-won democracy and eviscerate our Constitution permitting only two term limits for each President. Lungu has already served the two permissible terms. He wants a third term for which he doesn’t qualify.
He is set on risking the peace of Zambia, the tranquility of Zambia; he intends to set Zambia on fire for his personal interests. He is set on committing treason for his unquenchable selfish interests to remain in power when he knows or ought to know that he doesn’t qualify. He is programmed himself to commit a crime against Zambia for his personal aggrandizement, knowing his leadership has brought nothing glorious to this country.
There are no redeeming qualities to Lungu’s leadership of Zambia that he can rely on. His legacy is pure wreckage of democracy, the polity, the economy and tribal balance in Zambia. He is not satisfied with the damage he has already done to the country. He is not satisfied with the wealth he has already illegitimately accumulated with a veneer of legitimacy here and there. He wants to destroy the only legacy Zambians have been holding dear close to their chests: the Constitution from 1991 which has permitted peaceful transfer of power from one party to another party albeit with rigging embedded therein for good measure.
Each amended Constitution from 1991 to the present, that is 30 years, has limited presidential terms to two terms; that hasn’t changed. One person comes who thinks because he doesn’t want to go to jail that he is the God- chosen one to change all that; that won’t be. That can’t be allowed. We didn’t sacrifice our youth and go to jail for seven months and sacrifice our families for someone to simply come in and take everything away. Everyone can tell their own stories about how they contributed to the germination and sustenance of Zambian democracy during the one-party dictatorship and beyond. And there are so many heralded and unheralded stories of heroes and heroines. One day the full story will be told.
But Lungu will be stopped by three live forces of democracy from taking this country down the precipice. Firstly, and hypothetically, the judiciary through the Constitutional Court. Secondly, the ever-present intraparty tremors within any party that is violating the constitution or heading towards an election has the potential of self-destruction and or self-purification forces within it. Here, I am referring to the impending internal combustion within the ruling PF party where factions will emerge to destroy other factions. Thirdly, the ultimate power of the voter individually and collectively.
This column today will only deal with the ConCourt and hypothetically because it hasn’t been summoned yet to stop Lungu from his unconstitutional suicide mission. But when and if the ConCourt is called upon to determine in the concrete case of the eligibility of Lungu to run a third term, the ConCourt properly constituted and alive to the constitutional provisions now engaged to address the specific case of Lungu, the ConCourt will have no difficult on pronouncing that Lungu is not eligible to run for a third term.
From time to time the judiciary has rescued nations from self-destruction in moments of crises. No matter how disappointing the judiciary presents itself across history, it has from time to time been the backbone upon which democracy and constitutionalism have rested. The impetus to judicial gallantry has always been the crusading lawyers who have either accepted difficult briefs from clients or initiated the suits to rescue democracy and the Constitution themselves. Without the lawyers the judiciary cannot make those momentous decisions. But lawyers need clients for this. However, lawyers can create clients in times of crises and necessity. This is such a time in Zambian history. Lungu has to be stopped. Zambia belongs to all Zambians and all those who live in it.
The ConCourt judges, if engaged, will first ask themselves what was the rationale for the two term limits? The ConCourt will read the constitutional provisions contextually and without adding words or numbers that are not in the provisions and will interpret the Constitution within the period in which Lungu took office and what the words meant at the time. The ConCourt will have at hand the Constitution (Amendment) Act No. 1 of 2016 which states without ambiguity that the new President will complete the term of office of the deceased President where it is not stated what the time frame of that term is. The completion of the term simply means what it is. If it is five minutes, it is five minutes as long as an election has been held and a person has been sworn in.
The ConCourt will be alive to the fact that Lungu never came into power from the position of Vice-President or Speaker or Chief Justice, so the Article in the new Constitution Act No. 2 of 2016 does not concern Lungu at all. Lungu is plainly not captured therein except the paragraph that prohibits him from running for a third term because he has already held office twice. And holding office should not now be conflated with term of office because Amendment No.1 already tells us that Lungu without qualification completed the term of office of Michael Sata. That term is done no matter how long it was.
In 2016 to the present, Lungu did a second term of office as he was elected and sworn in and not from the position of VP or Speaker or CJ. Only a person who assumes the presidency from the position of VP or Speaker or CJ is affected by the calculation of when they assumed the presidency and what time had already been consumed by departed president. Lungu is beyond all this debate, the ConCourt will pronounce.
The ConCourt will have researchers to do extensive literature review on what has been written in Zambia and outside Zambia on this point. There are many important articles written by Zambians on this. Perhaps the best article is by Mr Elias Chipimo junior on this point. Many interviews and articles have also appeared in The Mast newspaper and the Diggers Newspaper. Literature review clarifies the judicial and any other mind.
The ConCourt will have in hand publications by Professor Margaret Munalula on Legal Process; Sullivan on Construction of Statutes and many books in that genre. The ConCourt will have Supreme Court of Zambia decisions that state clearly that a court can depart from its previous decision if certain conditions are satisfied. Such would be the case here if anyone assumed that the ConCourt had already pronounced itself on the eligibility of Lungu for a third term. It hasn’t directly done so in my reading. If prompted the ConCourt will declare Lungu ineligible.
The ConCourt will have at its disposal the seminal and paradigm shifting election decisions jurisprudence from Kenya of 2017 and Malawi of 2019/20 signaling the new dawn in fearless constitutional interpretations based on the impartial and unintimidated constitutional reading by the respective judiciaries.
The ConCourt will also be guided by the behaviour of the justices of the Supreme Court of the United States where even those who were appointed by Trump decided to follow the Constitution rather than the man who openly intimated that his secret weapons were in the Supreme Court of the United States. He was rejected by his so-called secret weapons. The same can happen this time in Zambia if anyone presumes Lungu has any secret weapons in the ConCourt merely because Lungu appointed all ConCourt judges. Lungu, of course has been winning a lot in the ConCourt but on the eligibility for a third term, my bet is that luck or whatever it is that made him secure those victories in the ConCourt won’t hold this time.
So much has been written in Zambia, the decisions of apex courts in Kenya and Malawi and the US on elections etc have combined to elevate the constitutional educational quotient level of all of us including that of our ConCourt. And we must never lose sight of why we have had a two-term limit for presidential office since 1991. If the ConCourt is engaged to stop Lungu from imposing himself, they will do it. If the ConCourt doesnt, dissent from within PF will derail him and if not, Zambian voters will stop him on August 12, 2021. It is written in the law and in the skies above us.
Dr Hamalengwa is the author of the upcoming book Commentaries on the Laws of Zambia, among many other books, including on the Judiciary. Send comment to: forthedefence@yahoo.ca