I am writing this, purely out of a desire for us as a people to band together on real issues that matter for our time. We have Bill 10 to deal with, and our concentration on the eligibility question that has already been decided will only go to weaken our collective effort to defeat this evil Bill. Bringing back this eligibility issue and re-litigating it before the public falls into the hands of the PF who would much instead make us be pre-occupied with something that has already been decided. Instead of going back to the past and try to correct the eligibility decision, I am proposing that we band together to resist President Lungu’s effort to push through with Bill 10 – a Bill that would destroy Zambian democracy.
Edgar Lungu is eligible to stand in 2021. This is not my position. I do not even agree with this. But this is the law of the land as stated by the Constitutional Court in the Daniel Pule and others v. Attorney General case. I find it quite alarming that some well-meaning colleagues both within the profession and outside the profession of lawyers are peddling this idea that somehow the Pule case was unclear about Lungu’s eligibility. I do realise the frustration with the leadership of President Lungu. He is presiding over a failing economy. The kwacha is in free fall, and people are turning on each other while he is busy fiddling his hands, eating beans in the presence of self-ordained “commanders”, who are alleged to be gassing our people in Kitwe and Chingola. The kongola twibe government has borrowed more than we can ever afford to pay back. It is the kaloba government par excellence. Lungu’s failures should be enough reason why he should not stand in 2021, or why he should resign immediately and leave power for someone else.
And so, I do understand the frustration of our people. But frustration is not law. Crucially, we must not disrespect the rulings of the court or claim that a court has not ruled on a question when, in fact, the court has done so. I cannot in good faith, pretend as if the Pule case was unclear. It was clear. What did the Pule case say?
There is a school of thought which is saying that the Pule case did not pronounce itself on Lungu’s eligibility. It did. Specifically, the court held that the term of office from 2015 to 2016, which straddled two constitutional dispensations was not a full-term within the meaning of Article 106 of the Zambian constitution. I wonder though what is unclear about this clear holding of the Constitutional Court which clearly spells out the fact that Lungu’s presidential term from 2015 to 2016 cannot be computed when counting the presidential term limits. The honour of the legal profession places an expectation upon us as members of the bar to be truthful at least concerning rudimentary issues such as this!
In the Pule case, the Constitutional Court further held that they could not answer the second question regarding a specific pronouncement on Lungu because it had become “otiose”. Of course, it had become otiose given what was decided earlier in the first question.
I am not saying that citizens cannot disagree with what the Constitutional Court ruled in the Pule case; all I am saying is that we all must admit that the court did pronounce itself on Lungu’s eligibility. I have personally disagreed with the rulings of Zambian courts, and I have not hesitated to let it be known. One thing I would not do, however, is to claim that my opinion is Zambian law. No matter how brilliant or bright we claim to be; our opinions remain just that – opinions. They do not become Zambian law. The rulings of the judges are what constitute the case law that forms precedents in Zambian law.
Some of our people are arguing that they can disqualify Lungu in 2021 on a technicality. I do not think that the Constitutional Court will reverse itself in 2021. It is inconceivable that a court which has ruled that the 2015 to 2016 term cannot be counted when computing term limits, will now disqualify the president who was ruling during those particular years.
If we do not respect the Constitutional Court’s Pule decision, we will have no reason to respect its decision in the Matibini case, or the Minister’s payback our money case. To enhance our commitment to the rule of law, we must first agree that decisions of the Constitutional Court, no matter how disappointing, are still part of Zambian law.
For now, we are all clear. Lungu is a disaster, and so is his kelenka presidency. One thing though that must be clear is that the Daniel Pule case was clear about Lungu’s eligibility in 2021. If his party decides to adopt him as their candidate, I would advise all Zambians altogether to reject this clueless president via the ballot box. As for the immediate need, I would much instead use all the resources to fight Bill 10; than spend any ounce of energy on making pseudo arguments that Lungu somehow can not stand in 2021. He can. But as a voter, you have the power to retire him. Will you?
The author, Elias Munshya, can be reached at elias@munshyalaw.com/SM