LATEST PETITION BY THE ATTORNEY GENERAL ON ELIGIBILITY OF EDGAR LUNGU TO CONTEST 2021 & FUTURE PRESIDENTIAL ELECTIONS: MY VIEWS

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LATEST PETITION BY THE ATTORNEY GENERAL ON ELIGIBILITY OF EDGAR LUNGU TO CONTEST 2021 & FUTURE PRESIDENTIAL ELECTIONS: MY VIEWS

By Sinkamba Peter

On 11th June, 2021, the full compliment of Constitutional Court comprising 7 judges that included Justice Chibomba, Sitali, Mulenga, Mulonda, Munalula, Musaluke, Chitabo, Chisunka, Mulongoti delivered their judgment in consolidated cases No. 2021/CC/0025 and 2021/CC/0027.

In these cases, the petitioners (Legal Resources Foundation, Sishuwa Sishuwa and Chapter One Foundation) wanted a declaration that the Former President Edgar Lungu having been elected, sworn into and held the office of President from 25th January, 2015 to 13th September, 2016; and having been declared winner of the 2016 election, sworn into and having held the office of President from 13th September 2016 until the next President is elected under the 2021 election; was not eligible for nomination for election as President in the election set for 12th August,2021.

The Attorney General opposed the petition. In response to the relief sought by the petitioners, the Attorney General submitted that Article 106(3),(5) and (6) of the Constitution were already determined in the Daniel Pule and Kapalasa cases, and that these petitions based on Article 106(3), were therefore seeking to re-litigate the issue regarding the presidential term spanning 25th January, 2015 to 13th September, 2016.

In delivering judgment, the judges held as follows:

“[11] The holding of office as President referred to in Article 106 (3) is related to the tenure of office stated in Article 106 (1) and (6) of the Constitution. Thus in determining whether the 1st Respondent has twice held office as President, as stipulated by Article 106 (3), consideration should be taken of the provisions of Article 106 (1) and (6) which touch on the subject of tenure of office as President.

[12] This is in line with the principle that the Constitution must be interpreted as a whole. All matters touching on the subject for interpretation must be considered together in order to give effect to the purpose of the provision as intended by the framers of the Constitution. It is settled that no single provision of the Constitutibn should be separated from the others and considered in isolation as argued by the Petitioners in support of their case. Article 106 (3) is not a stand-alone provision in the context of the whole of Article 106. Therefore, its interpretation must be done in harmony lAth the other provisions of Article 106.

[13] It is not disputed that the first term which the 1st Respondent served from 25th January, 2015 to 13th September, 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 spanning from 25th January, 2015 to 13th September, 2016 was the subject of the decision in the Daniel Pule and Others v. The Attorney General in which we exhaustively p. interpreted the provisions of Article 106 (1), (3) and (6) of the Constitution.

[14] We hold that Article 106 (3) when read with Article 106 (6) of the Constitution does not bar the 1st Respondent from contesting the forthcoming presidential election scheduled for 12th August p. 2021. For that reason we hold that the 1st Respondent’s nomination which was accepted by the Returning Officer on 17th May, 2021 is valid and. that the 1st Respondent, Mr. Edgar Changwa Lungu, is entitled to stand for election as President on 12th August, 2021.

[15] On that basis, the Petitions have not merit and are therefore dismissed.”

However, the Attorney General has gone back to the same court again. This time around, the Attorney General, together with Michelo Chizombe have petitiioned the court to revisit its ruling by declaration that the Electoral Commission of Zambia (ECZ) contravened the Republican constitution when it accepted Lungu’s nomination papers and included him on the ballot.

The Attorney General further wants a declaration from the court to state that former President Lungu was not eligible to contest a presidential election under the current Constitution as read with the now repealed 1991 Constitution (as amended). The argument presented this time around by the Attorney General is that article 106 of the Constitution does not have retrospective effect. In this regard, Attorney General has asked the Constitutional Court to set aside its judgement of 11 June 2021 cited above, which declared former President Edgar Lungu eligible to contest future elections having allegedly served twice in office.

Furthermore, the Attorney General has argued that Article 106(3) was a Constitutional prohibition and limitation clause , and therefore, it also prevailed over the substance of article 106 (6), to the extent that its provisions conflict with article 106(3).

“It must be indicated that, since the former is a positive constitutional prohibition and it definitely supersedes the provisions contained in the latter, and as such, the dictates of Article 106(3) will be enforced as if the conflicting substance of article 106(6) does not exist,” argues the Attorney General.

The Attorney General has urged the court to review its judgement to “protect the fundamentals of constitutionalism”.

MY VIEWS ON THE LATEST PETITION

  1. I hold a very strong view that this petition by the Attorney General is a textbook example of abuse of court process. I say so because in the above cited consolidated cases No. 2021/CC/0025 and 2021/CC/0027, the Attorney General submitted to the same court that Article 106(3),(5) and (6) of the Constitution were already determined in the Daniel Pule and Kapalasa cases, and that these Petitions based on Article 106(3) were therefore seeking to re-litigate the issue regarding the presidential term spanning 25th January, 2015 to 13th September, 2016.” But how come the same Attorney General has gone to the same court to relitigate the same Article 106 (3) and (6)?
  2. In its judgment of 11 June 2021, the court held that the first term which former President Lungu served from 25th January, 2015 to 13th September, 2016 was an inherited term and not a complete term as defined by Article 106 (6) of the Constitution. The court further reiterated that the issue of the presidential term of office spanning from 25th January, 2015 to 13th September, 2016 was the subject of the decision in the Daniel Pule and Others v. The Attorney General in which the court exhaustively interpreted the provisions of Article 106 (1), (3) and (6) of the Constitution. In this regard, for the Attorney General to turn around and state that Article 106 of the Constitution does not have retrospective effect, is like saying the Constitutional Court interpreted Article 106 (1), (3) and (6) wrongly. Additionally the court held that articles of the constitution must never be segregated but interpreted as a whole.

It is quite buffling for Attorney General to start segregating the articles by suggesting that one is superior over the other, or indeed that one has retrospective effect while other has none. It is buffling because the court has already determined that none of the articles is inferior to another. More flabbergasting in this regard is the fact the Attorney General knows or ought to know that the interpretation of the Constitution by the Constitutional Court is final, regardless one agrees or disagrees with the court. I therefore hold a firm view that what Attorney General is doing in this case can be likened to appealling against the case he won in 2021. I find that approach to be absurd. A litigant ought not appeal against a decision that is in his favour. I think that even courts should frown upon such litigants. Ninshi litigant afuna chani? Wa wina mulandu and you appeal against the courts decision?

5 COMMENTS

  1. I have read the constitution of Zambia in it’s
    entirety. And the Ruling of the Concourt..and the basis of the ruling, and what it means for case law.
    That Chizombe boy will be slapped with legal fees which he will fail to handle. The Stingy con man will disappear and will leave this boy in the cold.

  2. I am an Arden admirer of the author. He always give credivle checks and balances to government but on this one he is cassual and simplistic in his annalysis.

  3. Mr.ungu deliberately packed the Constitutional Court with his people and their judgements on a number of issues have been contraversial to say the least. It should be remembered that one of the judges was woken at 02:00hrs(?} to open the high court for Mr. Lungu’s faction to lodge some legal papers in 2015. The 2016 presidential petition which was dismissed on a technicality is another case. The PF lawyers in their arrogance refused to even appear before the Constitutional Court on the day the hearing of the case was supposed to commence and it was forced to do their bidding.

    There, was a lot of blatant miscarriage of justice during the PF regime. The question is how can this injustices be legally resolved? Are we as a nation saddled with these clearly biased judgements? Are we right to accept them as legitimate precedences and thus a bais for future legal rulings? If yes, does this make sense?

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