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that Lungu is not eligible to contest a presidential election under the current constitution as read with the now repealed 1991 Constitution (as amended).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.
The Petitioner has a valid legal argument which the ConCourt should determine and find in his favour.
I agree with the petitioner. I agreed with the challenge against ECL’s eligibility to run in 2021 but like most legal minds, I was very shocked with the ruling of the concourt that cleared Lungu for what would be a third term attempt.
They made a bad law by allowing ECL to stand. The whole country is watching to see whether they will overturn their own decision. If they do so, be assured that the concourt qualifies to be a comedycourt as their decisions have always raised dust. The concourt overturning that decision will prove two things;
1. The concourt isn’t serious and shouldn’t have first and final jurisdiction over constitutional matters. (This whole thing is highly unusual, a topic for another day).
2. That the constitution court is a court made to approve decisions of the current government and therefore is a political entity.
Is the party in govt ready to live with the consequence that ruling against ECLs eligibility in turn means the current president was elected in an illegitimate election which also means he is occupying the presidency illegally?
This has to be pondered because it means the ballot on which he was elected will in effect be rendered unconstitutional.
The last commentator has got it right. Zambian law has rather large, front-facing political eyes
This petitioner should take a break for once. Things change and he may find himself on the wrong turn of events. Those cadres are watching you so tread carefully and not with much excitement. Who thought the mighty Jay Jay would be collapsing every day
We are in “Zambia, the real Africa”. Like Sishuwa said, the only thing that has changed is that ECL is now in opposition and HH and his supporters are now ruling. The law in Zambia is not “blind”, it has very big political eyes!
Lungu already stood and was sworn in twice which means he was not eligible in the 2021 elections but he still forced himself and was taught a good lesson by the zambian people.
Just one question to the petitioner, What constitution was Zambia following in 2016? The 1991 or 2016 Constitution? When did Edgar Lungu assent to the new constitution which allowed for the 50+1 clause for a Presidential Winner, amending the 1991 first past the Post…and also allowing for a running mate , moving away from the presidential appointment of the Vice President?? The same 2016 constitution has clauses 106(3) and 106( 6 ) which define what a presidential term means.
The petitioner wants to cherry pick by going to the old 1991 constitution , and ignoring Articles 106(3) and 106 (6) as per the 2016 constitution. Chizombe’s case is very weak and can’t stand in any decent court of law. If what has been presented above are his arguments, then he is wasting both the Court’s and the country ‘s time. Let the courts do the needful.. Dismissal of the case and huge costs to be slapped on this petitioner,so that he becomes a pauper till the end of his life on earth.
You are also doing the same. Why didn’t Lungu say he did not meet the 50+1 when interpreting 2016 constitution. The law does not work backwards.
Lungu is a CHIKALA.
KALABA FOR PRESIDENT
Look at martin Nyambe and others vs konkola copper mines plc where it is said that those people recruited before 2014 don’t qualify for 60 years retirement and only those employees after the law was repealed. Even on this one, Lungu was bound by 1991 law B4 the repeal and 2014 law after repeal so he illegally stood for presidency
Where am finding Chizombe’s case a waste of time is that he is not citing the 1991 Amended Constitution Clause which is saying that if someone serves one day, two days of his presidency etc then that constitutes a full term in office. Instead he is going to the 2016 Constitution which he claims can’t be used for Lungu’s 2015 election.
I have thoroughly looked at the 1991 amended Constitution and I can’t find any such clause..the fact is that it is not there. What is there can’t help him with his case, that’s why he is not citing any, and is being general and playing semantics.
Please cite the 1991 Constitutional provision you want the constitutional court to use for them to vacate their earlier judgement! It’s not about the interpretation of Section 7(1) in the 2016 Constitution, it’s about the 1991 Amended Constitution under which Edgar Lungu was sworn in 2015.
Part 4 of 1991 Amended Constitution, page 41 states that ;
….No person who has Held the office of the president for two terms of 5 YEARS shall be eligible for election to that office.
…. subject to clause 2 ( Resignation) and 4 ( Incapacity) every President’s tenure of office is 5 years.
This is all there is in the 1991 Amended Constitution, and of course you don’t want to cite this because you know Edgar Lungu didn’t serve 2 five year terms.