THE ELIGIBILITY DEBATE: THE SILLY SEASON IS FINALLY UPON US
The SILLY SEASON is once again upon us.
The debate on President Edgar Lungu’s eligibility which is being fuelled by the Opposition and their media surrogates and outfits is a perfect indication that the SILLY SEASON is yet again upon us.
Before I am accused of insults or and unpalatable language by the ignorant arrogants who comment before reading, let me first begin by explaining what the phrase SILLY SEASON means; a Silly Season is a period when the mass media often focus on trivial or frivolous matters for lack of major news stories; a period marked by frivolous, outlandish, or illogical activity or behavior.
1. The issue of President Edgar Lungu’s eligibility is a DEAD ISSUE; the court already RULED upon it.
2. The judgment of the Constitution Court is FINAL, it cannot be challenged by any other court in Zambia.
3. The question of what it means to HOLD OFFICE TWICE was conclusively dealt with by the court in determining whether His Excellency President Edgar Lungu is eligible or not.
4. Any other issue on this matter is merely academic and an exercise in futility. However some lawyers will use this debate to make money and some politicians will use it to try to mislead the masses.
5. Whatever anyone says on this matter is merely an OPINION and NOT reality. The reality is what the Courts have ruled. Anything else is inconsequential.
Below is a summary of the CONSTITUTIONAL COURT JUDGMENT ON THE ELIGIBILITY OF PRESIDENT EDGAR LUNGU:
SELECTED JUDGMENT NO. 6J OF 2018 (2224)
IN THE CONSTITUTIONAL COURT OF ZAMBIA
2017/CCZ/004
1. TENURE OF OFFICE OF MR EDGAR CHAGWA LUNGU PRESIDENT OF THE REPUBLIC OF ZAMBIA
2. THE ELIGIBILITY OF MR EDGAR CHAGWA LUNGU, PRESIDENTIAL CANDIDATE IN THE PRESIDENTIAL
ELECTION TO BE HELD IN 2021
We have considered the submissions by the parties and we have also reviewed the authorities cited. To ably answer the question whether the presidential term of office that straddled two constitutional regimes can or should be considered a full term in terms of Article 106 (3),and (6) of the Constitution, it is imperative to first determine what would be considered as ‘HOLDING OFFICE’ under Article 106.
In particular, Article 106 (2), which we have already quoted above states that a President shall hoId office from the date the President-elect is sworn into office and ending on the date the next president-elect is sworn into office.
From the above, it is clear that once a President takes up office, he/she shall hold office until the next president-elect takes up office.
The question therefore, is: For how long can a president hold office?
In order to answer the above question, we have to/ consider the tenure of office of the office of president. In this regard, article 106 (1) which we have quoted above provides that the term of office for a President is five years which shall run concurrently.
The Applicants have posed two questions and we shall address them in the order in which they are presented. We begin with the first question: Going by the parties’ respective submissions, the main
question/issue is whether President Edgar Chagwa Lungu will have served two full terms for purposes of Article 106 (3) as read with Article 106 (6) of the Constitution of Zambia at the expiry of his current term.
Previously the limitation in eligibility for election to the office of President, as provided in the repealed Article 35 (2), was premised on the fact that a person had been elected twice as President regardless of the period the person served as President, even when the person was required only to serve the remainder of the term of office of his or her predecessor.
Under the current Constitutional regime, however, the holding of office as President is attached to the term of office as defined in Article 106 (1) and (6) read together. While Article 106 (1) provides that the Presidential term of office is 5 years, Article 106 (6/) defines what constitutes a full term. Any period of 3 years and above is a full term. A
period less than 3 years is not a full term.
Article 106 (6) thus presents a novel situation, providing that a person
will be deemed not to have served a full term of office as President if at the time he or she assumes office, less than 3 years remain before the date of the next general elections. The intention of the Legislature as shown from the import of Article 106 is that a person can serve two five year terms amounting to 10 years.
However, with the enactment of Article 106 (6) two, other scenarios now obtain. Under Article 106 (6) (a), it is possible that a person can serve for a period of less than 10 years, being! one term of atleast 3 years and another term of 5 years and these will count as two full terms.
The converse is also true under Article 106 (6) (b) it is now possible for one to occupy the office of President for a period which is less than a full term in addition to two full terms of office meaning that a President can be in the office for a total of almost 13 years. We have decided to add this for clarity.
Therefore, it is clear from the above provisions that when the Constitution is read holistically, we believe, the intention of the Legislature was that when a person takes over the unexpired term of a previous president, that person should be able to serve a substantial part of the unexpired term in order for such a term to be considered a j a full term.
We are of /the considered view that the provision regarding the full term must be applier to defining what is meant by twice held office under Article 106 (3) in intetpreting the provisions of that Article.
It therefore, follows that in the current case, the term served which sits astride the pre and post 2016 constitutional amendments and having looked at the intention of the Legislature as we have done, and the holistic approach we have taken in interpreting Article 106 of the Constitution in its entirety, our answer to the question that we have rephrased is that the Presidential term of office that ran from 25th January, 2015 to 13th
September, 2016 and straddled two constitutional regimes cannot be
considered as a full term.
As regards the second question posed in the amended originating Summons, which is whether the incumbent President is eligible for election as president in the 2021 presidential election, our view is that, in light of the position that we have taken as regards the first question posed in the amended Originating Summons, the second question has become otiose and we shall not consider it.
Compiled by ANTONIO MWANZA, PF Deputy Media Director.