Lungu eligible to stand in 2021
The ConCourt has ruled that it is otiose or useless to allege that President Lungu has served two terms when he has not.
THERE
is a raging debate on whether President Edgar Lungu is eligible to stand in the 2021 presidential and general elections even though the Constitutional Court put the issue at rest by ruling in the affirmative.
With most debate based on partisan positions, we reproduce the ConCourt’s ruling to enable people make an informed decision.
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 only 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 at least 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) where 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 as a full term.
In view of the above position, the question is: Did the framers of the Constitution in the transitional provisions under the 2016 Constitutional amendments, make provision for
what was to happen to, the incumbent President's term of office which straddled two constitutional regimes as to how it should be treated?
Perusal of both the Constitution of Zambia (Amendment) Act No. 1 of 2016 as well as the Constitution of Zambia (Amendment) Act No. 2 of 2016 has shown that these contain very limited provision(s) as to what or how the remaining term of office of the immediate predecessor's tenure should be treated. Section 7 (1) of the Constitution of Zambia (Amendment) Act No. 1 of 2016 provides as follows: - "7. (1) The President shall continue to serve as President or the unexpired term of that office as specified by the constitution in accordance with the Constitution."
The above provision clearly shows that although the Constitution of Zambia (Amendment) Act No. 1 of 2016 provided for the continuation of the President in the office of President, it made no provisions for how the period served from January, 2015 to September, 2016 which straddled two constitutional regimes was to be treated in view of the change in the constitutional provisions from the limitation based on being 'twice elected' to 'holding office' for two terms. In this regard, we agree with Counsel for the Applicants that the Legislature did not address that aspect in the transitional provisions. The question, therefore, is: Was it the intention of the framers of the Constitution to not provide for transitional provisions relating to this term?
Counsel for the Applicants referred us to the learned authors of Bennion on Statutory Interpretation at section 96 where they state that:
"Where an Act contains substantive, amending or repealing enactments, it commonly also includes transitional provisions which regulate the coming into operation of those enactments and modify their effect during the period of transition. Where the Act fails to include sue provisions expressly, the court is required to draw such inferences as to the intended transitional arrangements as, in the Iight of the interpretative criteria, it considers Parliament to have intended." (emphasis added)
We were also referred to Craies on Legislation, paragraph 10.1.26 where it is stated that:
"It is commonly necessary when one legislative system e ds and another begins to enact special rules in relation to factual cases that straddle the transition. Sometimes the old law is continued for transitional cases, and sometimes the new law is applied; in
either event, modifications may be necessary."
And at paragraph 10.1.27 of the same publication, where it is stated that:
"ln the absence of express transitional provision the courts will have to attempt to discern what Parliament must have intended in respect of matters arising partly before and partly after the commencement of a
(2304) provision, or which arose before commencement but fail to be addressed after commencement. This is not always easy." (emphasis added)
The foregoing shows that where it is determined that an Act failed to include express transitional provisions, it is for the Court to draw an inference or to attempt to discern what the Legislature must have intended. The Supreme Court applied this approach in the cases of Lumina and Mwiinga v The Attorney-General27 and Attorney-general and the Movement for Multi-Party Democracy v Lewanika and 4 others22 where the respective transitional provisions did not expressly provide for the Members of Parliament who crossed the floor. In the Lewanika22 case, the Supreme Court put it as follows:
"It follows, therefore, that whenever the strict interpretation of a statute gives rise to unreasonable and an unjust situation, it is our view that judges can and should use their good common sense to remedy it - that is by reading words in if necessary - so as to do what parliament would have done had they had the situation in mind."
Therefore, the question is: What could have been the intention of the Legislature on this aspect in relation to the transitional arrangements for a presidential term straddling two constitutional regimes?
Our firm view is that it could not have been the intention of the Legislature to not provide for the period that was served and that straddled two constitutional regimes as to how it should be treated. This is so because, as stated above, a holistic consideration of the relevant provisions in this case will clearly show that the intention was/is to allow or enable a person who assumes the office of president to complete the unexpired period of the term of another president to serve a substantial part of the five year term of office in order for that term to count as a full term pursuant to Article 106 (6) of the Constitution as amended.
It follows that the sub-articles in Article 106 cannot be isolated from each other in interpreting the article. As we have already stated above, an interpretation of a constitutional provision that isolates the provisions touching on the same subject is faulty. Therefore, to state that Article 106 applies to the term that straddled two constitutional regimes but that
Article 106 (6) does not, is to isolate Article 106 (3) from the rest of the provisions in Article 106 which is untenable at law, and is at variance with the tenets of constitutional interpretation, as all the provision on the tenure of office of the President must be read together. We are of the considered view that the provision regarding the full term must be applied to defining what is meant by twice held office under Article 106 (3) in interpreting the provisions of that Article.
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.
Since this matter raised serious constitutional issues, it is only fair that each party shall bear its own costs.