With just few months left for the country to hold its harmonised elections, an explosive debate has been raging as to if the President Edgar Lungu is still eligible to run the top office, reports Zambian Eye Correspondent.
The terms to ‘hold office’ and ‘term of office’ has been the two talking points.
The debate has over the past few weeks attracted the country’s top legal minds, as they get down to business breaking down the complexity of this hot issue against the country’s Constitution.
The matter saw the emergency of two camps, giving two different interpretations as some especially those from his party claiming he is eligible, while those from the other side of the table say he can’t stand.
Meanwhile, to understand it the best, a critical look at the Constitution is the way to go, and constitutional expert Kenneth Mwenda explains the provisions of the Supreme Law.
“Article 106(1) of the Constitution of Zambia, as amended in 2016, provides that:
The term of office for a President is five years which shall run concurrently with the term of Parliament, except that the term of office of President shall expire when the President-elect assumes office in accordance with Article 105.”
It is at this juncture that the debate enters about distinguishing the words a ‘term of office’ from ‘holding office’. Indeed, Article 106(2) and (3) of the Zambian Constitution provides that:
“(2) A President shall hold office from the date the President-elect is sworn into office and ending on the date the next President-elect is sworn into office.
(3) A person who has twice held office as President is not eligible for election as President.”
Against this background, can we say that ‘holding office’ and ‘term of office’ are two different things? If so, what are the legal implications?
If not, what is the way forward, given that there is no appellate court above the Constitutional Court? And does the concept of ‘constructive ambiguity’ in legislative drafts-manship play a role here?
Or, could it be a case of rushed legal ordering of the political economy by the legislative draftsman? What can we learn from the constitutional provisions of the US and Russian constitutions on the matter?
In Zambia, Article 106(6) of the Zambian Constitution continues:
“(6) If the Vice-President assumes the office of President, in accordance with clause (5)(a), or a person is elected to the office of President as a result of an election held in accordance with clause 5(b), the Vice-President or the President-elect shall serve for the unexpired term of office and be deemed, for the purposes of clause (3)—
(a) to have served a full term as President if, at the date on which the President assumed office, at least three years remain before the date of the next general election; or
(b) not to have served a term of office as President if, at the date on which the President assumed office, less than three years remain before the date of the next general election.”
Again, do the words a ‘term of office’ and ‘holding office’ mean the same thing?
Here, enters the Dan Pule case before the Constitutional Court of Zambia, with various commentators seeking to find out if the constitutional nomenclature pertaining to ‘holding office’ and ‘term of office’ are synonymous or not.
Meanwhile, the words ‘term of office’ for a President means five years and the term ‘hold office’ simply means to be sworn into the office and serve as President until the next person is sworn into that office as provided under 106(2) of the Constitution. – Zambian Eye