Decision that Lungu inherited Sata’s term was made in ignorance of the law- Chizombe

Decision that Lungu inherited Sata’s term was made in ignorance of the law- Chizombe

YOUTH activist Michelo Chizombe argues that going by the 1991 Amended constitution, former president Edgar Lungu served a full term in office in 2014.

Chizombe says the Constitutional Court made a decision without following statutory provisions when it pronounced that Lungu was finishing up late President Micheal Sata’s term when he was first sworn into office.

He says the decision made in the Legal Resources Foundation Limited, Chapter One Foundation limited and Sishuwa Sishuwa versus the Attorney General should be quashed as it is bad at law and cannot be maintained to be used as legal precedent in determining the current case and to be used as a law report in future.

In this matter, Chizombe wants the Court to declare that Lungu’s participation in the previous presidential election was unconstitutional.

Chizombe who has cited Lungu, the Electoral Commission of Zambia and the Attorney General as respondents in the matter indicated that Lungu contravened the constitution when he participated in the August 12, 2021 general elections.

He stated that the electoral body contravened the constitution when it accepted Lungu’s nomination and allowed him to be on the ballot paper for the 2021 presidential elections which enabled him to participate.

The petioner wants the Court to pronounce that Lungu is not eligible to contest a presidential election under the current constitution as read with the now repealed 1991 Constitution (as amended).

Chizombe is seeking a combined interpretation of Sections 7 of Act no.1 of 2016 and Section 2 of the same Act.

In his answer to the petition, Lungu insists that he never held office twice.

The former president said the ConCourt has already pronounced itself on his eligibility debate when it cleared all constitutional barriers for his attempt at third term.

He said a dissenting judgement by Court president Margaret Munalula cannot be relied upon to set a precedent.

Lungu added that the Court should embrace the principle of finality in legal decisions, and consider the grim effects of setting aside a decision that was rightfully made in his favor.

But in his reply to Lungu’s answer, Chizombe said he is not relying on a dissenting judgment but wants the Court to set the record straight and decree whether a person who has been sworn in to the office of President twice can contest for a third term.

He said the wrong judgement made by the Court prior to the last election ought to be vacated as the issues he has raised were not considered in other cases.

“The first respondent’s first term was a full term according to the 1991 amended constitution and the second term was a full term and that the first term ought to be measured by the 1991 constitution and the second term ought to be measured by the 2016 constitution,” Chizombe argued.

“The petitioner has not had the opportunity to raise any of the matters in his petition before this court and has never been a party to any of the matters before this court nor has he ever been in close privity with any of the petitioners who had been before this court.”

He emphasized that the Court’s previous judgment in the three cases regarding the matter were made in ignorance of the statute provisions and should be interpreted correctly.

“The court certainly did not pronounce itself on the effect of Article 35 of the 1991 constitution on Lungu’s first term , and if it had, the court would have arrived at the determination that Lungu’s first term was a full term,” Chizombe argued.

“The answer res judicata (already decided upon), is not an absolute bar and there are exceptions to res judicata which include when a judgement is rendered per incuriam.”

He said in it’s judgement per incuriam,  the ConCourt ignored or failed to apply the relevant provisions of the law and therefore judgement ought to be vacated or ignored and it should not be considered in the determination of the current matter.

“The petitioner therefore reiterates that a combined interpretation of Section 2 and 7 of Act no.1 of 2016 ties Lungu’s first term to the 1991 constitution in which it will be measured as a full term of office regardless of its duration,”said Chizombe.

“Consequently, this means Lungu has duly served two terms of office and was not eligible to participate in the 2021 presidential elections and is not eligible to participate in any future Presidential elections in the republic of Zambia.”

By Mwaka Ndawa

Kalemba July 23, 2024.