LUSAKA lawyer Michael Mutwena has petitioned the Constitutional Court for an order that the Electoral Commission of Zambia (ECZ) should allow the PF to file nomination papers for a different presidential candidate to participate in the August polls.
Mutwena has argued that the decision by the ECZ to allow President Edgar Lungu to successfully file his nomination is illegal, unconstitutional, a violation of Article 106(3) and is null and void.
He is seeking a declaration that President Lungu is constitutionally prohibited from taking part in presidential elections as a presidential candidate by Article 106(3) of the Constitution because he has twice held office of President and therefore the decision of the returning officer of the ECZ to accept his nomination papers is illegal, unconstitutional and ultra vires the said Article 106(3), hence null and void ab initio.
Mutwena is also seeking, among other claims, an order of certiorari in order to have the nomination documents removed and quashed and an order that ECZ should allow the political party which had sponsored President Lungu to file their nomination papers for a different presidential candidate to participate in the August 2021 elections.
He further prayed that each party should bear their own costs.
According to a petition filed, Thursday, Mutwena argued that the returning officer of the ECZ violated and contravened the Constitution when they made a decision to accept the nomination papers of President Lungu.
He added that Article 106(3) provides that a person who has twice held the office of President is not eligible for election as President and the meaning of that provision is very simple in that a person is only allowed by the constitution to hold the office of President twice and not more than that.
“At this point, it becomes legally imperative to establish whether the concept of holding office as the premise of the said concept of mandatory alternation can be replaced with a different legal concept such as ‘term of office’? The answer to the foregoing question is in the negative because the said concept of mandatory alternation will completely lose its efficacy, hence not able to serve the purpose it was meant to serve by the framers of the Constitution, and also there will be other negative, detrimental and inimical legal consequences that will flow out such an attempt,” Mutwena stated.
He added that the ‘term of office’ was never intended to be the premise of the concept of mandatory alternation because it is very easy to evade and it would reduce the said concept of mandatory alternation to an academic exercise.
Mutwena further argued that contrary to the patent susceptibility of the concept of ‘term of office’ to evasion and manipulation, the concept of ‘holding office’ is solid, airtight and cannot be evaded or manipulated any way whatsoever.
“It is worth pointing out that two terms of office were used as the premise of alternation in the 1991 constitution but was vacated and replaced with the concept of elected as a limit in the 1996 amendment of the Constitution, and it was probably because of the fact that it is easy to evade and manipulate,” he stated.
Mutwena asked the ConCourt to answer the following questions that would arise in an event that President Lungu wins the 2021 elections: Whether President Lungu will be eligible for election to the office of President in 2026, 2030 and all future presidential elections if he decided to resign two months before the completion of each term of office, specifically considering that he would have served four years and ten months only, which is not a full term of office because a term of office is five years as defined by article 106(1) which applies to a President who is elected during general elections?
He also asked whether President Lungu will be eligible for election to the office of President in 2026, 2031 and all future presidential elections, if he decided to swap offices with the Vice-President after two and half years thereby reducing the time served in each office to only two and half years, in each term?
Mutwena however asked the Court to state which law will be invoked to stop the perpetual eligibility of President Lungu from happening and why is that law not applicable now prior to the August 2021 general elections if the responses to his questions are in the negative.
He further asked that “considering the fact that the concept of the President for Life, de facto or de jure, which would culminate into a de facto dictatorship, was categorically rejected by the people of Zambia, based on the combination of the findings of the Mungomba, Mwanakatwe and Mvunga Constitutional review commissions, then whose will are we implementing, and whose interest are we advancing by imposing the said concept of de facto president for life on the people of Zambia by way of attempting to illegally and unconstitutionally relegate the premise of mandatory alternation from holding office to term of office?”