The Zambian Republican president Mr Edgar Chagwa Lungu has finally come out in the open (as I expected from last year) to say he wants to be President until 2026 (at least). The debate on the legality of an ECL third term has started. A perusal of the Constitution in Article 106(3) says “A person who has twice held office as President is not eligible for election as President.”
So the central question of debate is whether by 2021, ECL will have “twice held office as President”.
On one side of the argument, ECL is only serving his first term under the amended 2016 constitution. Burundian President Pierre Nkurunziza used the same argument in their Constitutional Court and won the case for a third term because his first term was served under an old Constitution where the president was elected indirectly by Parliament whereas now they have a directly elected president.
Furthermore, Article 106(6) explicitly defines a term of office as 3 years or more, although this is in the context of a vacancy in the office of the President being filled by either the Vice-President (elected as a Running Mate) or a Presidential by-election due to the Running Mate Veep not being able to take over for some reason. The previous constitution under which ECL served one term did not state what period of time constituted a term, meaning that even one year in office was counted as a term.
On the other side of the argument, the first term of ECL occurred under the old constitution which counted any period served as a term. Therefore he already served a term of 2 years after President Michael Sata died. Article 106(3) simply talks about holding office twice without giving guidelines how the terms are to be counted before the 2016 constitution was enacted. A broader interpretation of this clause would therefore automatically bar anyone who twice held office in the past such as Kenneth Kaunda. Such lack of clarity from the drafters of the 2016 Constitution is disappointing.
We are therefore left with the proverbial lacuna in the current Constitution. Depending on how you interpret what constitutes a “term of office”, you arrive at two opposing conclusions. To make matters worse, ECL has served two separate terms under two separate sets of rules. So do you apply the current rules retroactively or do you ignore the previous rules and start from scratch?
What a conundrum!