A YOUTH activist has submitted to the Constitutional Court that its previous judgements on former president Edgar Lungu’s eligibility to contest elections were made per incuriam and should, therefore, be set aside.
Per incuriam means that a previous court judgement has failed to pay attention to relevant statutory provision or precedents.
Meanwhile, Michelo Chizombe has insisted that Lungu has served two terms of office and is, therefore, ineligible to participate in any future presidential elections.
In this matter, Chizombe wants a declaration that Lungu is not eligible to contest any future presidential elections.
Chizombe, who also cited the Electoral Commission of Zambia (ECZ) and the Attorney General as respondents, further wants the court to declare that Lungu’s participation in the August 2021 general elections was unconstitutional.
However, Lungu asked the Constitutional Court to dismiss the matter.
In his reply to Lungu’s answer, Chizombe argued that he had raised new issues which were not previously raised in the previously considered cases on Lungu’s eligibility.
“The petitioner is not relying on a dissenting judgement, instead the petitioner has argued that the majority judgement in the Legal Resources Foundation Limited and two others V Edgar Chagwa Lungu, Attorney General, was made per incuriam and therefore it ought to be vacated or not to be followed as legal precedent in the determination of this matter. This court has not pronounced itself on the issues raised by the petitioner as the petitioner has raised new issues which were not previously raised in the previously considered cases,” he stated.
“The first respondent’s (Lungu) first term was a full term according to the 1991 amended Constitution and the second term was a full term and that the first term ought to be measured by the 1991 Constitution and the second term ought to be measured by the 2016 Constitution. The petitioner has not had the opportunity to raise any of the matters in his petition before this court and has never been a party to any of the matters before this court nor has he ever been in close privity with any of the petitioners who had been before this court”.
Chizombe stated that the court did not pronounce itself on the effect of Article 35 of the 1991 Constitution on Lungu’s first term.
“The petitioner has submitted that final judgement in those previous cases was made per incuriam and ought to be set aside or vacated in order for the law to be correctly applied and interpreted correctly. The court certainly did not pronounce itself on the effect of Article 35 of the 1991 Constitution on Edgar Chagwa Lungu’s first term, and if it had, the court would have arrived at the determination that the first respondent’s first term was a full term. The answer res judicata is not an absolute bar and there are exceptions to res judicata which include when a judgement is rendered per incuriam,” stated Chizombe.
“In the previous judgement per incuriam, it ignored or failed to apply or consider the relevant provisions of the law and therefore that judgement ought to be vacated or ignored and it should not be considered in the determination of this matter. The petitioner therefore reiterates that a combined interpretation of Section 2 and 7 of Act number 1 of 2016 ties Edgar Chagwa Lungu’s first term to the 1991 Constitution in which it will be measured as a full term of office regardless of its duration. Consequently, this means the first respondent has duly served two terms of office and was not eligible to participate in the 2021 presidential elections and is not eligible to participate in any future presidential elections in the Republic of Zambia”.
