Why constitutional Court was wrong on Lungu’s 2021 eligibility

Why constitutional Court was wrong on Lungu’s 2021 eligibility

 

By Michael Chishala, 21st March 2020

Imagine it is 2014 and Dr Guy Scott is acting as President of the Republic of Zambia after the death of President Michael Sata. He somehow manages to get the Zambia Constitution Amendment Act of 2016 passed in Parliament and signed into law during the 90 days he is acting. He then calls the Attorney General to render a legal opinion on his new status after the Constitution has been amended. Other prominent Constitutional lawyers are also consulted.

Next thing, he calls a Cabinet meeting and presentations are made by the Attorney General, Solicitor General and other lawyers. Afterwards, Dr Scott announces to Cabinet that based on the legal opinions they have just heard, he should be immediately sworn in as President because the amended Constitution provides for the sitting Vice-President to be sworn in when the incumbent is no more. Some Ministers agree with his position but many others disagree because they are eyeing his seat. The Cabinet meeting extends into a lengthy debate for several hours running deep into the night.

Dr Scott’s opponents point out that before the 2016 Constitution came into effect, there was no provision for an appointed Vice-President to immediately assume office. He therefore has no legal basis to be sworn in as president. They point out that what he is doing amounts to retroactively applying a law which did not exist previously when he was just an appointed Veep. Moreover, they say, the transitional provisions which provide for what will happen during the interim period leading up to the full application of the new Constitutional order in August 2016 do not explicitly allow him to complete the remainder of Mr Sata’s term.

However, Dr Scott’s supporters counter that a literalist interpretation of the law is unfair. They argue that to all intents and purposes, Guy Scott fits into the role of an elected running mate. They say that the framers of the constitution clearly wanted to get rid of costly Presidential by-elections after the experience Zambia has had in 2008 and 2014 of sitting Presidents dying in office. So according to the spirit of the law, Dr Scott being sworn in achieves this purpose.

Whether he himself was on the ballot alongside Mr Sata is immaterial since in the eyes of Zambians, he was part of the ticket and was already known as number two to Mr Sata. Any questions of citizenship for Dr Scott have already been settled by the amended Constitution since it is no longer a requirement for his parents to have been Zambians (whatever that means in the pre-1964 era). Furthermore, it is argued that one must take a holistic approach and not be stuck on the exact letter of the law but rather what it is meant to achieve. This called the “Purposive” (or spirit of the law) interpretation as opposed to the “Literalist” (or letter of the law) approach.

One Cabinet Minister then points out that the Purposive method only applies when the Literalist interpretation produces an absurdity or an ambiguity. Neither of the two apply because the law is very clear with no uncertainty or absurd outcome. Dr Scott was not directly elected by the people so therefore cannot be sworn in. Moreover, appeals to “unfairness” only affect Dr Scott and cannot be the basis of making such a momentous decision for the whole country.

Another minister stands up and argues that this line of thinking is wrong because although there is no debate on the Constitution barring Dr Scott from assuming office based on the strict letter of the law as written, the transitional provisions recognise his currently running acting presidency since it is obviously not possible to fully comply with the amended Constitution. They explain that it is not possible to immediately produce a Vice-president who was a running mate to the president since the previous elections were held under different rules. Dr Scott is still exercising the executive functions of the president as if Zambia was still under the rules of the 1991 Constitution (amended in 1996). Not everything in the amended 2016 Constitution has come into effect whilst other things have, such as the Grade 12 Certificate requirement for contesting elections which is immediate.

The debate eventually ends up focusing on the transitional provisions. The essential question then becomes whether the transitional provisions are adequate to cover Dr Scott’s unique situation. His supporters say they are ambiguous and would require interpretation by a competent court based on the purposive method of interpretation. However, in the absence of a lawsuit, there is nothing stopping Dr Scott from being sworn in as there is some leeway in the amended 2016 Constitution.

And so the following day, Dr Scott is sworn in as 6th President of Zambia to serve the remainder of the term of Mr Sata. This action sharply divides opinion and ignites a fierce debate on radio, television, print, Internet and social media with passionate arguments from both sides. Finally, someone who supports Dr Scott decides to pre-emptively file a case in the Constitutional Court for determination of his eligibility to take over as full president.

Now imagine that it is January 2016. President Edgar Lungu has just signed into law the 2016 Constitution Amendment Act to much fanfare. Two weeks later, a large business delegation from another country jets in for a previously scheduled meeting. They sit, discuss, sign agreements and do a photo shoot shaking hands.

In February 2016, President Lungu goes to see a doctor as he is not feeling well. After examination, it turns out he has contracted a new disease. The country from which the business delegation came from is the origin and epicenter of the disease. A few phone calls later, it is established that everyone in that delegation became sick a week after the meeting. The doctors tell the president he has about one week to decide his fate. The president ponders his situation and finally decides to resign from office for health reasons.

He calls his Vice-President Madam Inonge Wina and informs her of the situation. He then goes into a Cabinet meeting with his Veep and makes the announcement as he hands in his resignation letter. All his ministers are shocked, but totally support his decision because the last thing Zambians would want to see is their president being sick and incoherent on TV as they have flashbacks to what happened with President Sata in Parliament in 2014.

The President has a national address the same day announcing his resignation and Madam Wina immediately begins acting as president in March 2016. It doesn’t take too long for people to begin raising questions about her status as acting president vis-a-vis the amended Constitution. She calls the Attorney General and has a lengthy discussion with him about the issue. The main question to resolve is whether she must remain as an acting president under the 1991 rules or she must be sworn in as president since she was the Veep previously.

She calls for a Cabinet meeting and the matter is tabled for debate. A lot of other issues and complications come up as the main question is debated. If she continues under the Constitution 1991 rules, then she can only act as president for 90 days. But that would mean having a presidential by-election in June 2016 with about 2 months to go before the August 2016 General Election which would still have to be held. This is potentially a big crisis due to the huge cost and complicated logistics of holding two national elections within a 3 month period. The results of the presidential by-election would be contested in court as it is likely to suffer from irregularities owing to the short time involved.

The transitional provisions are consulted but they contain nothing explicit and very specific to this kind of situation. All they say in Section 7(2) is that the Vice-president continues as before during the transition unless terminated by the president. But there is no President any more. After a lengthy debate, the Cabinet finally resolves that the only two workable solutions would be to either go back to Parliament and introduce a new emergency Bill to modify and clarify the transitional provisions with respect to the tenure of the acting president, or for Ms Wina to just be immediately sworn in as president, despite her not being elected.

The first solution depends on the opposition voting for it. If they vote against it, the threatened constitutional crisis would now become real and full blown and this would suit the opposition. As one minister quickly points out, the second option would lead to an immediate challenge in the courts of law by the opposition and that pesky lawyer John Sangwa and his side-kick Keith Mweemba, joined by the troublesome Linda Kasonde. Damn, this is becoming too complicated to deal with! Finally after much debate, Cabinet resolves to go for option two.

A few days later, Madam Inonge Wina is sworn in as 6th President of Zambia to serve the remainder of the term of Mr Sata. This action sharply divides opinion and ignites a fierce debate as someone who supports Ms Wina pre-emptively files a case in the Constitutional Court for determination of her eligibility to take over as full president.

Having laid the ground work with two important thought experiments, let us now properly examine the ruling of the Constitutional Court in the case of the eligibility of President Edgar Lungu contesting for another term starting in 2021. Despite the case being disposed of, the debate about the eligibility has recently come back and grown stronger with neither side willing to concede any ground. First a brief recap.

The summary of the position of the “Yes Camp”, those who support President Lungu is that we must use the purposive interpretation of the law in deciding this question. It is clear that the intention of the Legislature was to enable any new president to serve a substantial portion of the remainder of the term of office of their predecessor once a vacancy occurs. This is to allow them to achieve their agenda as president. Hence the introduction of the “Three Year Rule” which says that for the purposes of counting terms of office, any term less than 3 years does not count in determining whether someone has “twice held office” as per Clause 106(3).

As the Constitutional Court correctly noted in its judgment on page 78, it is possible for someone to serve as president for a maximum of almost 13 years (12 years, 12 months and 29 days). ie two five year terms and one term under 3 years to complete the term of a former incumbent. As an interesting side note, what would stop someone getting elected and resigning one day short of 3 years and then letting his Vice complete his term? Then at the next election, he runs again and serves another 3 years minus one day and repeats the same thing. Then he finally serves his two five year terms. He could easily serve 20 years plus this way. Although it is an extremely unlikely hypothetical situation, it exposes another lacuna with our Constitution.

Getting back to the issue, the “Yes Camp” who support President Lungu argue that he can run again since his first term of 18 months did not count as per the Three Year Rule as defined in Clause 106(6). The Court agreed with this position and ruled accordingly, although for different reasons. More on this soon.

The “No Camp” who oppose President Lungu’s Third Term bid argue that his first term must also be counted under the strict letter of the law. He has “twice held office” as the Constitution clearly states and is therefore not eligible to run again. Even if we want to apply the Three Year Rule to him, he does not qualify because that rule is only applied when either a Vice President who was a Running Mate takes over, or someone else is elected because the Veep could not take over for some reason. This is in Clause 106(5).

The Constitutional Court competently handled and addressed all these arguments from both sides in their ruling. They did not directly disagree with the main arguments of the No Camp but they did however reject the Yes Camp argument of leaning entirely on the purposive Interpretation method. The Court held, as it has before, that the sequence is to first use the literal method and then move to the purposive approach only if there is an ambiguity or absurdity in the application of the law.

Towards the end of the judgment on pages 79 and 80, it becomes clear that this entire case rested on the transitional provisions. As the Court correctly noted, there is authority and legal precedent for a court to clarify a law where there is either ambiguity or absurdity in its application.

The Court held that although there were transitional provisions drafted, they did not fully address the unique situation presented by the Edgar Lungu term which straddled two constitutional eras (page 79). They noted that there was no explicit mention in the transitional provisions on how his term would be treated with respect to the Three Year Rule. In saying this, they rejected the argument of the No Camp that there is no ambiguity on this issue in the amended Constitution.

The Court went on to say that it was not the intention of the framers of the Constitution to deliberately not deal with how the Three Year Rule applies to President Lungu’s first term (page 80-81). The Court appeared to have inferred that the treatment of the Lungu first term was somehow implied within the new 2016 rules. Therefore, according to the Court, we must not count the Lungu first term as per Article 106(6). This is on page 83 of the judgment.

The Court also on page 83 refused to make a ruling on whether President Lungu is eligible because in their words, the matter was “otoise”, in view of their position on the Lungu first term not counting as a full term. For most of us not steeped in legal jargon, to be “otoise” simply means to be redundant or pointless, serving no practical purpose or result.

ANALYSIS
The main bone of contention against the Court’s decision is their interpretation of the transitional provisions. Their judgment was that the transitional provisions are ambiguous vis-a-vis the Three Year Rule, but this is a rather dubious claim. In the transitional provisions, it states the following in the Constitution (Amendment) Act 1 of 2016 in Section 7(1):

“The President shall continue to serve as President for the unexpired term of that office as specified by the Constitution in accordance with the Constitution.”

Furthermore, in Section 2(1), it says:

“In this Act, unless the context otherwise requires – ‘Constitution’ means the Constitution of Zambia, 1991, in force immediately before the effective date; ‘effective date’ means the date of the commencement of this Act and the Constitution as amended as provided in section four;”

Therefore, a clearer rendering of the transitional provisions in Section 7(1) is as follows:

“The President shall continue to serve as President for the unexpired term of that office as specified by the [1991] Constitution in accordance with the [1991] Constitution.”
(emphasis and clarification added)

This clearly proves that the entire first term of President Lungu up to August 2016 was to be governed by the 1991 rules and not any of the new 2016 rules. Therefore we cannot apply the Three Year Rule (or any other new rule) to his first term because this rule was not part of the earlier 1991 rules under which he was elected. We can only apply new rules in this particular case if the transitional provisions explicitly allow us to do so.

Moreover Section 6(1) of the transitional provisions stated the following:

“Subject to the other provisions of this Act, and so far as they are not inconsistent with the [1991] Constitution as amended, existing laws shall continue in force after the commencement of this Act as if they had been made in pursuance of the [1991] Constitution as amended, but shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the [1991] Constitution as amended.”
(emphasis and clarification added)

This proves further that the 1991 rules governing the first term of Mr Lungu were supreme and still remained in force during the transition as if they were part of the 2016 amended Constitution, despite the amendments introducing new conditions that did not exist before. The new conditions could not be applied to the Lungu first term because it was being governed by the 1991 rules during the transition between January and August 2016.

Contrary to the judgment on pages 79 and 80, the transitional provisions adequately provided for how to treat the Lungu first term. Meaning that if there was anything not explicitly stated, all you had to do was refer to the 1991 rules (with the 1996 Amendments). This now brings us to the final point.

NEW VERSUS AMENDED CONSTITUTION
The United Kingdom, our former colonial masters, does not have a written Constitution. When Zambia was under British rule, it was governed largely by English Common Law without a written Constitution and with other additional local laws made by the Northern Rhodesia Legislature.

In 1964, Zambia got its first written Constitution which even specified that Kenneth Kaunda would be the first President. Nine years later in 1973, Kaunda introduced a One Party State and through Parliament repealed and replaced the 1964 Constitution with a brand new one in which the PIG (Party and It’s Government) was supreme.

Seventeen years later, another brand new Constitution was enacted in 1991 to replace the 1973 Constitution and the PIG was overthrown at the elections that same year. In the opening paragraph, Constitution 1991 states the following:

“An Act to provide for a new Constitution of the Republic of Zambia and to repeal the Constitution of Zambia Act, 1973, and the Constitution scheduled there to, and to provide for matters connected with or incidental to the foregoing.”

Then in 1996, the Constitution was amended with new provisions added. Twenty years later, another round of amendments were added in 2016. Therefore, what we are using now is actually the 1991 Constitution amended twice. It is not a new Constitution to replace an old one as happened in 1973 and 1991.

This particular point is important to rebut the ruling of the court because it means that all terms served by any president between 1991 to date must be counted using the rules in effect at the time they were served. It is still the same Constitution since 1991, but with added amendments that cannot be applied retrospectively, unless there is explicit provision for this in the transitional provisions, which there isn’t.

If the 2016 Constitution was a brand new one, there would be merit in the argument that all terms of office previously served would be reset to zero. This is actually what happened in 1991 and made it possible for Dr Kaunda to contest again despite him having already served more than two terms when term limits were introduced in 1991. The Court alluded to this on page 70 of their judgment.

Since we have already established that the Lungu first term was to be governed using the 1991 Constitutional rules in force immediately preceding the 2016 amendments as per the transitional provisions already quoted, the term served from January 2015 to September 2016 must therefore be counted as a full term for the purposes of Article 106(3),(5) and (6).

POSTSCRIPT

1. Many commentators have claimed that the Court did not declare Edgar Lungu eligible to run in 2021 since they refused to specifically answer that question. This is not correct. The fact that they ruled that his first term should not be considered a full term for the purposes of the Three Year Rule obviously means that he is eligible according to their ruling. That is why they said the second question was “otoise”.

2. The logical application of the reasoning of the Court judgment means that both Guy Scott and Inonge Wina are immediately sworn in as President after a vacancy in our two thought experiments at the beginning of this article. This would undoubtedly be a reductio ad absurdum situation because neither was directly elected with the President under the old 1991 rules but were merely appointed. The Court’s argument on page 82 second paragraph that one cannot cherry-pick the application of the Clauses that deal with the same subject is untenable under our circumstances because it is not always possible to apply all the new rules that are introduced in the middle of the game.

No matter how you interpret all the Clauses taken together that deal with the Vice-President for example, there is no scenario where it would make logical sense to swear in an appointed Veep as per Article 106(5)(a) and 112(c) during the transition from one Constitutional era (1991/96) to another (2016). Not unless there is an explicit provision in the transitional provisions to this effect (which there wasn’t). As stated earlier, the Veep was to continue in office as before unless their appointment was terminated by the President. This particular point further proves that the terms of both the President and Veep during the transition were still being governed by the 1991 rules as per Section 7(2) of the transitional provisions (The President does not have power to terminate their Vice-President under the new 2016 rules). Section 7(2) states:

“A person holding the post of Vice-President, Minister or Deputy Minister shall continue to hold that position under the [1991] Constitution until that appointment is terminated by the President in accordance with the [1991] Constitution.”
(emphasis and clarification added)

Moral of the story: draft your transitional provisions very well.

About the author

Michael Chishala is a local Zambian analyst and commentator with a strong interest in Philosophy, Law, Economics and Politics.

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