NAREP leader Elias Chipimo has insisted that the Constitution bars President Edgar Lungu from re-contesting the presidency in 2021 since he has held office for two years.

In a detailed analysis titled ‘A reflection on whether President Edgar Lungu having twice held office as president can run again in 2021’, which was written yesterday, January 12, 2017, Chipimo quoted the Constitutional provisions which support his position.

Below is the full analysis:

There is a heated debate over whether President Edgar Lungu can run for president in 2021, having already been elected to this office twice – the first time in 2015 (when he served out the remainder of Michael Sata’s term in accordance with the pre-amended constitution) and again in 2016 (following the general election). The President’s strongest detractors believe that any attempt to justify a further term is a recipe for anarchy and are calling for fire and brimstone responses. I believe there is a calm and rational approach to this matter and I take a leaf from President Lungu himself who has expressed his opinion on the issue and suggested that those who feel differently should take the matter to the Constitutional Court.

The Argument
Those supporting the President’s position appear to rely primarily on the provisions of Article 106(6)(b) of the amended constitution. Their argument can be summarised as follows:
Although Article 106(3) prevents a person who has twice held the office of President from standing again for that office, there is an exemption under Article 106(6)(b) that would make President Lungu eligible to run again
Article 106(6)(b) states that a person who was elected to the office of President shall only be deemed to have served a “term” if he served for three or more years
President Lungu only served for 18 months and did not therefore complete a “term”
Under Article 106(1) of the constitution, a term of office lasts 5 years.
To try and settle this matter, we can ask two questions, the answers to which would have to be “yes” in at least one instance in order for President Lungu to qualify to stand again for an election:
1. Was President Lungu elected into office in 2015, as a result of the existing Vice President being unable to automatically assume the office of President”?
2. Do the words “hold office” and “held office” in Article 106(2) and (3) mean the same thing as “term of office” in Article 106(1)?

Response to Question 1

In order to qualify under Article 106(6)(b), President Lungu would have to have been elected as a result of the person who would immediately have assumed the office of president (following the death of Mr. Sata) being unable to do so. This was not the case. Elections in 2015 were not held because there was no immediate successor eligible to automatically assume the office of president; they were held because the constitution required a fresh presidential election, regardless of availability of a suitable successor.

To put this response another way, for a person to qualify for the exemption under Article 106(6)(b), that person has to have been elected to the office of president as a result of an election held in accordance with Article 106(5)(b) – an election resulting from the fact that the Vice Presidential running mate could not immediately assume the office of the president without an election. Such a situation has not arisen before and could only arise after the constitutional amendment had taken effect (i.e. after the amended constitution was passed by Parliament and activated). Since,therefore, this procedure was not available under the pre-amendment constitution, the answer to Question 1 would be “no”, meaning those arguing that the President can stand again in the basis of Article 106(6)(b) cannot proceed on this basis because the three year exemption does not apply in this instance.

Response to Question 2
The second question lies at the heart of the confusion surrounding this issue. It is without doubt, the more complex question and is based on an interpretation of the word “term”. Those that say the President can stand again believe that a “term of office” for a president is five years. This is correct. However, it is not necessarily the same thing as the period when a President is deemed to “hold office”.

To “hold office” is simply to be sworn into office and serve as President until the next person is sworn into that office. This is abundantly clear from Article 106(2) which states:

“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”.

We can state this another way: although a presidential term is five years, a person can “hold office” for less than five years. The restriction in Article 106(3) does not use the word “term”; it uses the words “hold office”:
“A person who has twice held office as President is not eligible for election as President”.
Note that the constitution does not say:
“A person who has served two terms shall not be eligible”.

If the constitution had used the words “term of office” instead of “held office”, the President could well stand again because a term of office is at least five years. However, “holding office” is only the period between two swearing-ins. This could be five years or it could indeed be eighteen months.

The restriction on holding office is contained in Article 106(2) which states:
“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”.

The question to ask, therefore, is this: did President Lungu hold office from the date he was sworn-in, in 2015 to the date the next President (i.e. himself) was sworn-in, in 2016? If the answer to this question is “yes” then he has already held office once. If he resigns tomorrow and his office falls vacant and Mrs. Inonge Wina is sworn-in, he will have “held office” twice even though he will not have served even one term.

It appears that the expressions “term of office” and “hold office” (or “held office“) do not mean the same thing.
If that is the case, it will not matter that President Lungu did not serve for more than three years when he was sworn-in the first time because he will still be deemed to have “held office”, whatever length of time he served. The restriction in Article 106(3) is therefore not in relation to whether a president has served a “term of office”; it is about whether a president has “held office”, which is an entirely different thing.

For completeness, it should be pointed out that the exemption under 106(6)(b) only applies where there is a vacancy in the Presidency after the coming into effect of the amended constitution and not before so it cannot be relied upon to justify the argument in favour of another attempt at the Presidency where a person held office under the pre-amended constitution.

Based on the above interpretation, the current President, having twice held office (as opposed to having twice served a term of office), cannot stand again for election as President. The constitutional restriction does not refer to a person ‘serving a term of office’. It refers to a person ‘holding office’.

This is defined as being sworn-in and serving until the next person is sworn-in as President. In short, if the President resigned his office today, he would have “held office”, even though he would not have served a term of office and that is the critical distinction.

Elias Chipimo
12 January 2017