PRESIDENTIAL POSER
Zambia’s ruling Patriotic Front has nominated incumbent Edgar Lungu as its presidential candidate. But that choice seems set to become the subject of a legal dispute as soon as the party officially files notice
Zambia’s ruling Patriotic Front (PF) could find itself without its preferred candidate for the August presidential election, if constitutional scholar John Sangwa has his way.
At its general conference this month, the party elected President Edgar Lungu to stand for the PF in the August 12 poll. It will make that nomination official in mid-May, when Zambia’s political parties register their candidates with the country’s electoral body.
But Sangwa has said he will petition the Constitutional Court to have Lungu disqualified once the PF files its nomination. And McDonald Chipenzi, the executive director of the Governance, Elections, Advocacy, Research Services Initiative, has reportedly said he’ll join this action.
It’s also understood that the main opposition, the United Party for National Development (UPND), as well as the Law Association of Zambia, consider Lungu ineligible for re-election, though whether they will join any potential legal action is unclear.
Lungu was first elected to the presidency in snap elections in January 2015, after the death of president Michael Sata in office in October 2014. After seeing out the remainder of Sata’s five-year presidential term, Lungu was elected president again in general elections 20 months later.
At the time Lungu first took office, Zambia’s constitution specified that if a president were unable to see out his term of office, snap elections would be held to choose a successor (there was no provision in the constitution for a vice-president to see out the presidential term in a caretaker role). The constitution also held that “no person who has twice been elected as president shall be eligible for re-election”.
In January 2016, the constitution was amended to allow a running mate on the presidential ticket. This means the vice-president will complete the presidential term if the president is unable to do so due to death, impeachment or resignation. The constitutional provisions around term limits have also been amended to read that “a person who has twice held office as president is not eligible for election as president”.
If the vice-president serves in a caretaker role for more than three years of the fiveyear term, it is considered a full presidential term; less than three years would not count as a presidential term.
Lungu’s eligibility has already been the subject of legal action. In 2018, four opposition parties petitioned the Constitutional Court to rule on the matter. At issue was whether his first stint in office could be considered a full presidential term. If so, it would mean his second term, from September 2016 until elections in 2021, would be his final one.
In its ruling, the court found that Lungu’s first term “cannot be considered as a full term”. Based on this, it said the question of his eligibility for election in 2021 had become superfluous.
Now Lungu’s eligibility will again be challenged, based on three arguments: that he has already held office twice; that the three-year minimum for a full presidential term applies only in the case of a vice-president taking over presidential office; and that Lungu became president before the constitutional amendment, and so should be judged according to the previous provisions — in other words, as someone who has “twice been elected as president”, he’s not allowed to run.
“The law now is that if the president dies, you don’t go for elections; the vice-president automatically gets sworn into office and finishes the term,” says Sangwa, hence the new reference to “holding office” rather than “being elected”.
Sangwa is of the view that the PF has misunderstood the point about the threeyear limit for a valid presidential term.
“Nobody ever argued that the period between January 25 2015 and September 2016 constitutes a full term,” he says. But he insists that the provision simply does not
apply to Lungu, because it refers to the elevation of the vice-president — or an election taking place in the event that a vice-president can’t be sworn in — which differs from how Lungu gained power.
Besides, he says, the provision took effect only in January 2016, so it should not apply to anyone who served as president before that.
It’s a point that has found favour with prominent lawyer and presidential hopeful Kelvin Fube Bwalya.
“The law which the president himself signed on January 5 2016 cannot be applicable to him in retrospect,” says Bwalya. “The law under which he was made president in 2015 is a different law.”
Under that law, he says, Lungu is not eligible to stand for office again.
The PF, for its part, considers the issue moot, given the December 2018 ruling that Lungu’s first term did not constitute a full presidential term.
“The issue of Lungu’s eligibility is a dead issue that was conclusively dealt with by the Constitutional Court of Zambia,” says party secretary-general Davies Mwila. “The Constitutional Court ruled that Lungu is eligible to contest the 2021 elections. The decision of the Constitutional Court is final, and it cannot be challenged.”
Eastern Province minister and lawyer Makebi Zulu similarly argues that Lungu is eligible, given the court judgment that holding office means serving as president for a minimum of three years. While the court didn’t mention Lungu by name, he says, “the substance of [the question] remained the same”.
But Sangwa dismisses such arguments, saying the court didn’t specifically pronounce on Lungu’s eligibility in 2018 because he was not a party to the proceedings. The court, he says, cannot declare or decide on the rights of a person who has not argued his own case before it.
In any event, the PF is going out of its way to discourage a legal petition. Justice minister Given Lubinda, for example, last month warned that such actions could encourage instability.
“The reason we are hearing all this is because people are trying to create an environment of suspicion in the country, so that when Lungu is declared winner they say: ‘After all, we told you,’” he said. “That is a threat to peace.”
Paul Moonga, chair of the ruling party in Lusaka province, has taken an even harder line, accusing opposition parties of colluding with some Constitutional Court judges in an attempt to disqualify Lungu from contesting the poll.
“Unfortunately for our colleagues, they have spent five years with no manifesto to show the people of Zambia. By last year October, they [had] put a consortium of lawyers together waiting to petition the eligibility of our president once he files his nomination,” he said, adding that Lungu’s opponents believe “they can buy [a] few judges to nullify the credibility of our candidate”.
Mwila “categorically distanced” the party from
Moonga’s statements soon after.
The situation does, however, put the ruling party in an awkward position. As Zambia
Economic Freedom Fighters (EFF) president and lawyer Kasonde
Mwenda says: “It is not correct to say that [Lungu] is not eligible; it is also not correct to say he is eligible. We have the courts, and the courts will decide.
“But the challenge for the PF [is that] if the courts decide Lungu is not eligible after they have filed in, then I can assure you there will be a year when the ruling party [does] not have a candidate for the presidency.”
That could make things tricky. Voters may already punish the PF at the polls, given the depreciation of the kwacha and increased cost of living. There’s also unhappiness with the ruling party over what civil society activist Laura Miti calls Lungu’s “sins of omission — the actions he has refused to take ... like refusing to prevent and end PF cadre lawlessness and violence, and sitting quietly as his government borrowed the economy into ICU”.
To then also lose a presidential candidate so late in the game could cause the PF substantial harm.
As it stands, the UPND is again fielding Hakainde Hichilema as its presidential candidate. In 2016, he lost to Lungu by just 100,000 votes (Lungu claimed 50.35% of the votes, to Hichilema’s 47.63%).
Should he retain his nomination, Lungu will also face former vice-president Nevers Mumba of the Movement for Multiparty Democracy in the presidential race, along with former foreign affairs minister Harry Kalaba of the Democratic Party. Political newcomers the Movement for Democratic Change and the EFF will be represented by former finance minister Felix Mutati and Mwenda respectively.
The challenge for the PF [is that] if the courts decide Lungu is not eligible … then I can assure you there will be a year when the ruling party [does] not have a candidate for the presidency
Kasonde Mwenda