By Elias Munshya & Michael Chishala
“A person who has twice held office as President,” states Article 106(3) of Zambia’s Constitution 2016, “is not eligible for election as President.” However, Article 106 (6) further explains that a Vice-President, or another person who assumes the presidency due to a by-election, will not be deemed to have held office if they have served as President for less than 3 years before the date of the next general election.
The question Zambians are facing right now is whether President Edgar Chagwa Lungu qualifies to stand in 2021. President Edgar Lungu was first sworn into office in January 2015 after winning a presidential by-election to replace a dead incumbent Mr. Michael Chilufya Sata. Lungu was re-elected in August 2016 after general elections. In 2015 when he first ran for office, Zambia was under Constitution 1996. However, in January 2016, Zambia adopted an amended constitution with the provisions explained above. The question is how would this apply to President Lungu.
President Lungu and his supporters claim that Constitution 2016 allows him to stand again in 2021. However, as stated above, Article 106(3) cannot be any clearer:
A person who has twice held office as President is not eligible for election as President.
We submit that President Lungu has “twice held office”. The first was in January 2015, and the second was in September 2016, after the August 2016 elections. Article 106(2) states as follows:
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.
On 25th January 2015, Mr Lungu was sworn-in as President. He “held office” until the next swearing-in ceremony on 13th September 2016 when as “next President-elect”, he was sworn in for a second time. Thus, He is currently “holding office” for the second time until the next swearing in ceremony in 2021.
Some Lungu supporters claim that his first term does not count because of Article 106(6) which states that for the purposes of Article 106(3), a term of office is only counted if it is at least three years long. Since Mr Lungu’s first term was less than three years, they say we must discount it. This argument fails on two counts.
1. The “three-year rule” only came in effect in 2016 and you cannot apply the law to previous events unless it is explicitly stated in the law itself. For example, before 2016, there was no provision for 50%+1 to determine the election winner. If we applied the law retroactively, it would mean Mr Lungu never won the 2015 elections since he never went over half the votes cast. Another example is the Grade 12 certificate requirement. The fact that it is now required for a candidate to stand as president does not mean the previous elections that were held without G12 certificates are invalid.
2. The three-year rule fails because if we apply it to President Lungu, he does not even qualify because it can only be applied to a Vice-President who was elected as a Running Mate and then took over after a vacancy in the President’s office. Mr Lungu was never a Vice-President. Article 106(6) refers to Article 106(5)(a) and (b) when mentioning the three-year rule and President Lungu never took office under either of the two situations mentioned in Article 106(5).
If we followed Article 106(5), only Dr. Guy Scott, who is now eligible to stand as Zambian President, would possibly qualify. As a side issue though, it is interesting to note that Dr. Scott actually never “held office” since he was never sworn-in as President, even though he performed the Executive functions of the President’s office. Similarly, during the three months after the death of President Levy Mwanawasa, Dr. Rupiah Banda never “held office”.
Another argument by Lungu supporters is that the Constitution 2016 reset the clock and everything is started afresh, including counting of terms of office previously held. This fails because there is no provision in the Constitution 2016 that says that previous terms of office under the earlier Constitution are not counted. The critical phrase in the Constitution is “twice held office”.
The definition of “holding office” has not changed since the 1991 Constitution to date. Constitution 1996 in Article 34(9) and (10) stated as follows:
A person elected as President under this Article shall be sworn in and assume office immediately but not later than twenty-four hours from the time of declaring the election. The person who has held office of President shall immediately hand over the office of President to the person elected as President and shall complete the procedural and administrative handing over process within fourteen days from the date the person elected as President is sworn in.
Thus, it is very clear that being sworn-in is what constitutes the beginning of “holding office” with respect to Article 106(3) in the 2016 Constitution and this also applied previously. Mr Lungu has been sworn-in twice and as per Article 106(3), he will have “twice held office” by 2021.
The logical end of the arguments advanced by President Lungu’s third term supporters would mean that if the late President Fredrick Chiluba were alive today, then even he could contest again. The argument could extend further to Dr. Kenneth Kaunda as well. If everything has started on a clean slate there is no stopping Kaunda or Chiluba. Further, if this third term argument held, then Dr. Rupiah Banda might claim two more terms, since he too served for less than the proverbial 3 years. We doubt if the Lungu argument makes any sense at all.
We also note that in January 2016, there were two acts of Parliament that ushered in Constitution 2016. Constitution Act No. 1 provided for the transition between the two Constitutional eras (Constitution 1991 and Constitution 2016) while Constitution Act No. 2 contains the actual text of the 2016 amendments to the Constitution. To provide for the transition, Act No. 1 stated that, “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.” This provision confirms our view that the 2016 Constitution (assented to on 5th January 2016) recognizes the first term of office held by Mr Lungu that was already running from January 2015.
We understand that President Lungu and his supporters are talking of taking this matter to the Constitutional Court. We believe that step is unnecessary in view of the circumstances. We do hope to continue participating in this dialogue.
UPDATE: 15th January 2017 (by Michael Chishala)
The Constitution Act 1 of 2016 containing the transitional provisions states at the beginning:
1. This Act may be cited as the Constitution of Zambia Act, 2015.
2.(1) 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; and “existing laws” means the Laws of Zambia as they exist immediately before the effective date, including any statutory instrument issued or made before that date which is to come into force on, or after, the effective date.
Anywhere in this Act where it says “the Constitution”, it is referring to the 1991 Constitution. Therefore as per Article 7(1) in this Act, President Edgar Lungu continued to serve “as President for the unexpired term of that office as specified by the  Constitution in accordance with the  Constitution”.
The 1991 Constitution did not have the three-year rule on counting terms and therefore the first term of Mr Lungu which began before the amendments must be interpreted using the 1991 rules (plus the new amendments). The 1991 rules remained in force until the August 2016 elections.
Even if for the purposes of this discussion we assumed that terms before 2016 are negated, between 5th January 2016 and 13th September 2016 when the new constitution had already taken effect, he served a term by “holding office” and he was sworn in to “hold office” for the second time in September 2016. The definition of “holding office” did not change between the two constitutions or even in the transition.
During the January to September transition, Mr Lungu was recognized under the new constitution as “holding office” (hence being able to exercise full powers) and there is nothing anywhere in the law to suggest that his holding of office during the transition should not be counted for the purposes of Article 106(3).
An amended constitution cannot reasonably reset the clock on terms of office without an explicit statement to that effect (Zimbabwe did that in their most recent amendment). This is because it leads to an absurd outcome that defeats the purpose of the law because a sitting president only needs to get some amendments passed to reset their terms of office (The amendments may not even be related to the terms of office).
In the “Stephen Katuka & LAZ Vs Ngosa Simbyakula & 63 Others” case in the Constitutional Court (regarding ministers remaining in office), there is a part that says:
… we wish to observe that Article 267(1) enjoins us to interpret the Constitution in accordance with the Bill of Rights and in a manner that promotes its purposes, values and principles. This entails that this Court must have in mind the broad objects and values that underlie any particular subject matter.
“In terms of the general or guiding principles of interpretation, the starting point in interpreting words or provisions of the constitution, or indeed any statute, is to first consider the literal or ordinary meaning of the words and articles that touch on the issue or provision in contention. This is premised on the principle that words or provisions in the constitution or statute must not be read in isolation.
“It is only when the ordinary meaning leads to absurdity that the purposive approach should be resorted to. The purposive approach entails adopting a construction or interpretation that promotes the general legislative purpose. This requires the court to ascertain the meaning and purpose of the provision having regard to the context and historical origins, where necessary. This exercise would sometimes require reading into the provision what the Legislature had intended.
The most critical part here is “The purposive approach entails adopting a construction or interpretation that promotes the general legislative purpose”. The purpose of term limits was to remove the “KK Wamuyaya” syndrome and I cannot see how an interpretation which leads to a reset of terms can possibly “promote the general legislative purpose”.
CONSTITUTION OF ZAMBIA 2016
(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.
(4) The office of President becomes vacant if the President—
(b) resigns by notice in writing to the Speaker of the National Assembly; or
(c) otherwise ceases to hold office under Article 81, 107 or 108.
(5) When a vacancy occurs in the office of President, except under Article 81—
(a) the Vice-President shall immediately assume the office of President; or
(b) 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.
(6) If the Vice-President assumes the office of President, in accordance with clause (5)(a), or a person is elected to the office of President as a result of an election held in accordance with clause 5(b), the Vice-President or the President-elect shall serve for the unexpired term of office and be deemed, for the purposes of clause (3)—
(a) to have served a full term as President if, at the date on which the President assumed office, at least three years remain before the date of the next general election; or
(b) 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.
Elias Munshya (eliasmunshya.org) is a Zambian based in Calgary, Alberta where he practices civil litigation, administrative and human rights law. He holds graduate degrees in theology, counselling, law and business administration.