President Lungu l’ eligibility in simple language

President Lungu l’ eligibility in simple language

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.

Why?

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?

Ask him.

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”?

It does.

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?

Ask him.

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COMMENTS

WORDPRESS: 22
  • comment-avatar
    Ndine 2 weeks ago

    So president RB and MCS did not complete full president’s terms so why are their estates entitled to a president’s “retirement” benefits?

  • comment-avatar

    Total crap of your interpretation of our constitution, you must be an idiot, I year 6months is a presidential term to your dander head?

  • comment-avatar

    Uliwamano iwe

  • comment-avatar
    Likando Numwa 2 weeks ago

    ‘106. (1) The term of office for a President is five years which shall run concurrently with the term of Parliament, except that the term of office of President shall expire when the President-elect assumes office in accordance with Article 105.
    (2) A President shall hold office from the date the President elect is sworn into office and ending on the date the next President elect is sworn into office.
    (3) A person who has twice held office as President is not eligible for election as President.’

    Article 106 Section 3 is a stand-alone provision and has nothing to do with interpretation of the term office. It simply says ‘ A person who has twice held office as President is not eligible for election as President.’
    Did ECL hold office twice? The answer is YES. So he is not eligible. The Dan Pule Judgement by the Con court had nothing to do with Article 106 sub 3. Section 3 will be evoked when ECL files in his Nomination. However, it can still be evoked by his adoption by PF as Presidential Candidate. Anyone is free to take the matter to court and it will be considered by implications of the PF constitution and the provisions of the law on political parties. However, for Constitutional lawyer and for avoidance of doubt, constitutional Lawyers such as Mr. Sangwa will wait for ECL to file Nominations before challenging his candidature in the Concourt. It will be a short ruling needing NO legalistic arguments and will set as precedence for Zambia and the Commonwealth. THIS IS JUSTICE NOT POLITICS. WE ARE NOT IN A JUNGLE BUT A MODERN SOCIETY.

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    Buck Teeth Lungu 2 weeks ago

    Let’s be clear about who the author really is. Kennedy Limwanya is a third rate journalist hack who became the PA to Rupiah Banda when Rupiah lost elections in 2011. He is or was a PF civil servant. Limwanya is not a constitutional lawyer. He is not even a lawyer, but a journalist. His spin here might as well be part of Lungu’s disinformation campaign for an illegal third term.

  • comment-avatar
    Buck Teeth Lungu 2 weeks ago

    The issue is not about holding two full terms. That’s not the dusqualifier. If that was the case, would Lungu have to step down after a full 10 years in office? I don’t think so. Lungu wants to be the second longest serving President of Zambia at any cost and excuse. In fact, I can confidently state that if Lungu is allowed to contest and win the 2021 elections, he will change the constituon so that the term limits are removed completely. Lungu wants to be a Life President!

  • comment-avatar
    Maano 2 weeks ago

    Lungu disqualified by both:

    . 1996 Provision on Third Term, and
    . 2016 Provision om Third TIME.

  • comment-avatar
    Mazzangallatonni 2 weeks ago

    Idriss Déby, the disgusting veteran dictator president of Chad, is dead. He was shot dead “on the battlefield” while fighting rebels. Déby last week won a sixth term in presidential elections. Well, “Jameson Kachasu” Lungu beware, you illegally field yourself and you will end up like Idriss Déby, Africans must learn to listen, enough is enough!

    • comment-avatar
      adviser 2 weeks ago

      Mazzangallatonni – Deby brought stability to that region. Try to follow issues closely.

  • comment-avatar

    The problem in Zambia is that we lawyers,even constitutional lawyers, who think like this Advisor. Kennedy Limwanya has explained this constitutional issue in very simple terms which even a Grade 7 pupil understand. But to Advisor it is all Greek.

    • comment-avatar
      adviser 2 weeks ago

      John – As a lawyer, my request is simple: Quote the provisions of the Constitution to explain your point. By asking me to refer to Limwanya makes me think that your thinking is emotional rather than constitutional.

  • comment-avatar
    FuManchu 2 weeks ago

    It is not a mistake that CK in thanking the caucus that elected him president of NDC, he thanked them for “electing him president of PF!” This is where CK’s sights are focused! What one harbors in their heart will manifest one way or another voluntarily! Kambwili knows he can bulldoze his way to the top in PF only bena ba CK ukubilima not as patient as a vulture!

  • comment-avatar

    hahahaha!! ati ask him. Anyway, deep down his heart he knows, matter of fact there’s a video out there where he actually mentioned that he’s term only goes up to 2021. How he changed, only God knows but i bet the best thing is to ask him…

  • comment-avatar
    Nyambe the Hero 2 weeks ago

    Forget legalities.

    Lungu wants to be president for life. He has already said you will find him in 2026.

    He is the worst man to go to state house. KK bowed out gracefully in 1991. FJT respected the constitution and people’s wishes in 2001.

  • comment-avatar

    Wht is to hold office as president of the Republic of Zambia? The moment someone is sworn in as president of the Republic of Zambia, they begin to hold office regardless of the number of years they remain in office.

    • comment-avatar
      adviser 2 weeks ago

      Max- Your opinion or guided by Law? I asked in context to what the Constitution says on eligibility.

      • comment-avatar

        If Edgar Lungu was not holding office in the one year 18 months that he served as president for the remainder of Michael Sata’s term, are u saying the office of president of Zambia was vacant then?If he was not holding office as u allege, then wht was he doing? These are some of the common sense questions that will inevitably be raised in any challenge to Lungu’s eligibility. Please apply your mind to these questions Mr Advisor.

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          adviser 2 weeks ago

          Max – I have kindly asked you to quote the Constitution. How difficult is that?

          • comment-avatar
            Buck Teeth Lungu 2 weeks ago

            The issue is not about holding two full terms. That’s not the dusqualifier. If that was the case, would Lungu have to step down after a full 10 years in office? I don’t think so. Lungu wants to be the second longest serving President of Zambia at any cost and excuse. In fact, I can confidently state that if Lungu is allowed to contest and win the 2021 elections, he will change the constituon so that the term limits are removed completely. Lungu wants to be a Life President!

  • comment-avatar
    adviser 2 weeks ago

    Limwanya, you quote “He has twice held office.” In the Constitution, what is the interpretation of “holding Office”? Is it explicit in the context of one who has served as President that “holding Office” is irrespective of a complete term i.e., + 3 years? Lawyers say that these Clauses must not be read in isolation, so what is the conclusion of “twice held Office” and “a term should be > 3 years”? Remember, we are also told that laws are not formulated to disadvantage anyone. My understanding of the Zambian Constitution at the moment is that a President can serve 8 years or almost 13 years and still be deemed to have served two terms. Please guide.

  • comment-avatar

    We need to check your bank balance, before we understand your motive.