ABOUT PRESIDENT LUNGU’S ELIGIBILITY FOR RE-ELECTION IN 2021: A LAYMAN’S PERSPECTIVE
By Sean Tembo – PeP President
1. I must start by making it very clear that l am not a lawyer by profession and neither am l a law student nor do l aspire to be a lawyer one day. No. To the contrary, l am a proud Chartered Accountant. However, l am not shy to publicly state that l understand the law; both it’s theories and application. I have been undertaking an informal study of the law for more than two decades now. In the recent past, l have represented myself in court five times; three times in the Magistrates Court, once in the High Court and once in the Constitutional Court, and l have won my cases in every single instance. Therefore, despite not being a lawyer, l believe that l am qualified to comment on the issue of the eligibility or otherwise of President Lungu to recontest the presidency in the 2021 general elections.
2. As an ice breaker, let me start by declaring interest that l am not a big fan of President Lungu.
3. However, despite my dislike for President Lungu , it will not affect my assessment of whether, based on existing provisions of the Republican Constitution and based on the judgement of the Constitutional Court in the Pule etal case, Mr Lungu is eligible for re-election as President of the Republic of Zambia in the upcoming general election next year.
4. I believe that article 106 of the Constitution, in its totality, is very instructive on this issue of eligibility. The intention of the legislature in 106(6) is unmistakable in that it wanted a person who has served a partial term of less than 3 years to be eligible to serve two additional terms of 5 years each, and a person who has served a partial term of 3 years or more to be eligible to serve only one additional full term of 5 years. The argument that article 106(5)(a) applies only to someone who ascends to the presidency after being Vice President does not hold water because article 106(5)(b) provides for someone who ascends to the presidency without having been a Vice President. Therefore, based on the 2016 amended Constitution, President Lungu is eligible to stand as Republican President in 2021.
5. However, my view is that the judgement of the Constitutional Court in the Dan Pule matter did not use the right wording in that it was talking about whether the President held two full terms. However the focus and prequalification imposed by the Constitution in article 106(3) is “twice holding office” and not “serving two full terms” and the Constitution itself in article 106(5) is clear that a person can “twice hold office” without necessarily serving “two full terms”. Therefore, the determination by the Constitutional Court that a person who was sworn in on 25th January 2015 and served until 24th September 2016 cannot be considered to have served “two full terms” is unnecessary. To use the language of the Constitutional Court itself, that determination is otiose. What the Constitutional Court should have said is that a person who served as President from 25th January 2015 to 24th September 2016 cannot be considered to have “held office” as per definition of “holding office” outlined in article 106(6).
6. Other than this lacuna of using the term “two full terms” instead of the term “twice held office” in their judgement, l agree with the judgement of the Constitutional Court insofar as it is based on the 2016 amended constitution. Therefore, it is my considered view that Mr Lungu is eligible to stand again as Republican President in the 2021 general election. The intention of the legislature in article 106 of the Republican Constitution is unmistakable.
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SET 09.03.2020