AFTER DEEP REFLECTION, EDGAR LUNGU’S FIRST TIME IN OFFICE ‘WAS NOT A FULL TERM’
By Kennedy Limwanya
Let us make no lame arguments.
The period 25 January 2015 to 13 September 2016 could not have counted as a full term.
President Edgar Chagwa Lungu, therefore, served only one year and seven months in office.
This is a matter that has been adequately addressed by the highest court of competent jurisdiction, the Constitutional Court.
On Page J83 of its ruling of 7 December, 2018, the Constitutional Court stated, inter alia, “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”.
In essence, from 25 January, 2015 to 13 September, 2016, Mr Lungu had served less than three years before the next general election, which was held on 13 September 2016.
Now, what does the Zambian Constitution say about a president who assumes office less than three years before the date of the next general election?
The Constitution of Zambia (Amendment) No. 2 of 2016 addresses this matter in Article 106 (6) (b) where it says the Vice-President or the President-elect shall be deemed, for the purposes of clause (3) “not to have served a term of office as President if, at the date on which the President assumed office, less than three years remain before the date of the next general election”.
When did Mr Lungu assume office?
He assumed office on 25 January 2015.
Was that less than three years before the next general election which was to be held in September 2016?
Yes, it was.
There was only one year and seven months remaining before the next general election.
Would Mr Lungu, then, be deemed to have served a full term of office from January 2015 to August 2016?
No, he wouldn’t.
Does Mr Lungu, therefore, qualify to stand as President in the 12 August, 2021 general election?
No, he doesn’t.
Why doesn’t he qualify?
Here is why.
Firstly, in determining whether the Vice-President or the President-elect is deemed to have, or not, served a full term of office, let us take note of the wording “for the purposes of clause (3)”.
Clause (3) says: “A person who has twice held office as President is not eligible for election as President”.
Has Mr Lungu twice held office?
Yes, he has.
Did Mr Lungu hold office from 13 January, 2015 to 13 September, 2016?
Yes, he did.
Has Mr Lungu held office since 13 September 2016?
Yes, he has.
Now, does Mr Lungu fall in this category of a person who is deemed to have, or not, served a full term?
No, he doesn’t.
Why doesn’t he?
The clause only applies to either a person who assumes the office of president after being vice-president or someone who gets elected on account of a vice-president’s inability to assume office.
How did Mr Lungu become president in 2015?
Was Mr Lungu vice-president when President Michael Sata died on 28 October, 2014?
No, he wasn’t.
Did Mr Lungu get elected on account of a vice-president who was unable to assume office?
No, he didn’t.
Let us now look at the two scenarios under which Mr Lungu’s term of office would have qualified for consideration of whether it was full or not.
If, for some reason, Mr Lungu ceased to hold office today or the office of President fell vacant,what would happen?
Article 106 (5) (a) responds as follows:
“When a vacancy occurs in the office of President, except under Article 81— (a) the Vice-President shall immediately assume the office of President;”
Article 81, by the way, deals with the circumstances when the president dissolves Parliament, meaning that even the vice-president’s position stands dissolved.
But if Mr Lungu’s office fell vacant under other circumstances, Vice-president Inonge Wina would immediately assume the office of President.
What if, for a reason, Madam Wina was unable to assume office?
Here is what Article (106) (b) says:
“If the Vice-President is unable for a reason to assume the office of President, the Speaker shall perform the executive functions, except the power to— (i) make an appointment; or (ii) dissolve the National Assembly; and a presidential election shall be held within sixty days after the occurrence of the vacancy”.
Now, did Mr Lungu become president on account of the above-stated scenarios?
No, he didn’t.
It goes without saying, therefore, that the question of whether one would be deemed “not to have served a term of office as President if, at the date on which the President assumed office, less than three years remain before the date of the next general election” does not apply to Mr Lungu.
Agreed, Article 106 (1) of the Zambian Constitution states that “The term of office for a President is five years which shall run concurrently with the term of Parliament”.
However, the interpretation of whether five years is a full term or not does not apply to the circumstances under which Mr Lungu assumed office.
He has twice held office.
The Constitutional Court ruling of 7 December, 2018 only said “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”.
The Court did not say January 2015 to September 2016 was not a term or that Mr Lungu did not hold office.
So, as things stand, despite Mr Lungu’s first term in office not having been a full one, it was a term, nevertheless.
Here is a very basic example of how a term should be interpreted.
In Zambia, a school term is four months.
This year, 2021, because of the disturbances of Covid-19, the first term only began in February instead of the traditional January.
Despite it not having been a full term, will it be counted as Term One?
Yes, it will.
Have we paid our children’s Term One school fees in full?
Yes, we have.
Will the term beginning next month be counted as Term One?
No, it won’t.
Will it be Term Two?
Yes, it will.
Is former Zambian president Rupiah Banda, who held office for less than three years, receiving his retirement benefits in full?
Yes, he is.
He is deemed to have held office as President.
Mr Lungu is in his second and last term and, therefore, constitutionally ineligible to stand as president in the 12 August 2021 general election.
Doesn’t Mr Lungu know that he is ineligible to stand in this year’s election?
Doesn’t Article 91 (3) (a) of the Zambian Constitution prescribe that the “President shall, in exercise of the executive authority of the state- respect, uphold and safeguard this Constitution”?
By insisting on going for the third term in violation of the two-term constitutional provision, is Mr Lungu respecting, upholding and safeguarding the Zambian Constitution?