It is very tempting to think that the Nkunika case’s question was just about a Grade 12 Certificate. It is bigger and much graver than that. The real issue with the Nkunika case is how the Constitutional Court has approached this whole issue of constitutional interpretation. The philosophy underpinning the Constitutional Court’s decision is seriously problematic. It presents a real danger to the growth of our democracy and the growth of the Constitutional Court’s own constitutional jurisprudence.
The Zambian Constitution requires that for one to be able to stand as a president, MP, or councillor, they must have as a minimum academic qualification a Grade 12 Certificate or its equivalent. This requirement should not be controversial at all. It does not require that all applicants show a Grade 12 Certificate. Instead, Grade 12 will be the minimum education required, leaving the possibility that those with tertiary education, which is factually superior to a Grade 12 certificate, should have no problems qualifying. In other words, applicants can choose to take their bachelor’s or even masters degrees to the nomination centre. This should not be a barrier at all. This interpretation was, in fact, what Justice Sichinga ruled in the 2016 case of Sibongile Zulu v. Attorney General. According to Justice Sichinga, a person like Ms Zulu, who had tertiary professional education, met this constitutional requirement as they had an education superior to a Grade 12 Certificate. But this interpretation has hit a roadblock with the latest ruling from the Constitutional Court.
The Constitutional Court is wrong in that they have decided to interpret ambiguous provisions of the Constitution that excludes rather than include as many Zambians as possible. It is a rule of constitutional interpretation that where the Constitution is vague – interpreters should approach the text liberally to give rights to as many people as possible. Constitutional rights are not like employment rights determined by the employer, such as ZANACO or AIRTEL. ZANACO can choose which job requirements are needed for one to work as a cashier. If they wanted, they could mandate that applicants possess a Grade 7 certificate. And if this requirement is clearly and unambiguously stated as a qualification for the cashier’s job, then it must be had.
On the other hand, our country’s Constitution applies to all citizens. The Constitution is the primary custodian of both the general and special rights of citizens. Zambians cannot claim to have more rights outside the Constitution of their nation. As such, where the Constitution is ambiguous, it is the duty of the Constitution to so construe ambiguous legislation liberally to catch more people than exclude people.
What the Constitutional Court has done in the Nkunika case is to violate basic tenets of constitutional interpretation. The Court has decided to be exclusive rather than inclusive. The Court has decided to play favourites with the few rather than try to be as inclusive as possible. Indeed, if it were Parliament’s intention to exclude people like Ms Sibongile of the 2016 case, the Constitution would have said so. It did not. Having not explicitly excluded people with tertiary but no Grade 12 Certificates, the Constitutional Court had no duty to exclude these people. It is not just right.
It is not because we do not like the Grade 12 Certificate being the only requirement when we say this. The problem is that the Constitutional Court cannot impose upon the Constitution what the framers of the Constitution did not impose. The Court cannot properly develop its jurisprudence if it continues to see every opportunity to deny rights, where the framers of the Constitution did not intend to deny or restrict rights.
We have already been told, several times, that the intention of Parliament was that we should have educated people in Parliament who could carry out meaningful debates. Indeed, working from this intention, we can deduce very clearly like people like Sibongile Zulu, even if they lack a Grade 12 Certificate, have sufficient education to meaningfully debate in Parliament. A more liberal approach to interpreting this Grade 12 requirement would not betray parliament of an educated cadre of legislators.
But the Grade 12 requirement aside – the Constitutional Court’s approach betrays the very reason for this Court. And for the Constitution.
Elias Munshya can be reached at elias@munshyalaw.com