PROFESSOR MVUNGA: CALLS FOR PRESIDENT LUNGU TO STAND DOWN ARE LEGALLY FLAWED? NOT AT ALL!!!!!!!!!!!!!!
By Peter Sinkamba
My elder brother, Professor Patrick Mvunga SC, whom I served with on the Mwanakatwe Constitutional Review Commission almost 23 years ago, argues that its wishful thinking for any individual to suggest that the President must step down because there is an election petition in court. He says there is nowhere in the Zambian Constitution where it says a Head of State must step down whenever there is an election petition against his elections after winning elections in the first round.
I am one of the many citizens that strongly believe that following the enactment of the Constitution of Zambia of 2016, an incumbent Head of State must step whenever there is an election petition against his/her. This issue was profoundly debated during several constitution- making processes established from 1993 all the way to 2014 due to the protection of President from legal proceedings, as provided for in the constitution.
According to Article 98 (1) of the Constitution a person shall not institute or continue civil proceedings against the President or a person performing executive functions, in respect of anything done or omitted to be done by the President or that person in their private capacity during the tenure of office as President (the underling is mine). Similarly, per Article 98 (2) the President shall not, in the President’s private capacity during the tenure of office as President, institute or continue civil proceedings against a person.
What is important to bear in mind is that when a sitting or incumbent President chooses to contest in a presidential election, he or she does so in his or her private capacity. In this regard, pursuant to Article 98 (1) no civil proceedings instituted against him or her can lie provided the President is performing or continues to perform executive functions of the Office of the President. Furthermore, per Article 98(2), provided the incumbent continues to serve as President, he or she cannot petition the election results, if he loses the election, whatever the degree of election malpractice or violence by the opposition in the election in question.
In view of the foregoing provisions, the drafters or writers of the 2016 Constitution, through Article 104 (3), protected the interests of both the incumbent President and that of his opponents. Where an election petition is filed against the incumbent, or an election is nullified, the Speaker should perform the executive functions of the President.
The drafters of the Constitution were mindful that the President is immune to civil and criminal proceedings whilst serving as president and thereafter. If after serving as President, need arose to lift the immunity, this can only be done by Parliament in accordance with Article 98 (8).
The gist of the matter is that when Presidential elections take place, parliament is dissolved, unless it is a Presidential by-election. In other words, there are no MPs to lift the immunity. So, when parliament stands dissolved, it is practically impossible to lift the immunity of the President or person serving as president. This is what would have made presidential petitions practically impossible when parliament dissolved. To cure this problem, drafters of the Constitution came up with Article 104 (3).
This explains why Attorney General is not representing President Edgar Lungu in the on-going petition. The Attorney General is fully aware that the matter before Court is purely a private affair of President Lungu. He is therefore only representing State institutions mentioned by the petitioners, namely, public media, the Zambia Air Force and the Zambia Police Service, all of which are institutions of the State.
My elder brother Professor Mvunga needs to rethink his thesis!!!!!!!