And the Constitutional Court has warned those in a habit of attacking the judges in relation to the matters before court, that they shall not hesitate to cite them for contempt.
In this matter, Daniel Pule of Christian Democratic Party, Zambia Republican Party leader Wright Musoma, Peter Chanda of the New Congress Party and Citizen Democratic Party leader Robert Mwanza petitioned the Constitutional Court over the eligibility of President Lungu to contest in 2021.
The matter came up for judgement before ConCourt president judge Hildah Chibomba and judges Anne Sitali, Mungeni Mulenga, Palan Mulonda, Enock Mulembe, professor Margaret Munalula and Martin Musaluke, Friday.
However, before judgement could be read, justice Chibomba noted that whilst the case was ongoing, several individuals were commenting on the matter, to either influence the proceedings or bring the judges into disrepute.
She added that although the court had generally exercised maximum tolerance to protect the right to free speech, it did not entail destroying the very institution that the people had created.
Justice Chibomba therefore warned those in a habit of attacking the judges that they would not hesitate to cite them for contempt.
“Before we consider this matter, we wish to observe that we have noted with concern that whilst this matter was ongoing, several individuals were commenting in a manner, to either influence the proceedings or bring the individual judges of this court into disrepute. This court has generally exercised maximum tolerance in a bid to protect the right to free speech because of its nature as the people’s court. However, this does not entail destroying the very institution that the people have created,” she said.
“Each individual’s rights to free speech ends where another begins. We therefore want to render a timely warning that those who engage in unwarranted attacks on the members of this court related to matters before the court, do so at their own peril as we shall not hesitate to cite them for contempt.”
And reading the judgement on behalf of other judges, justice Chibomba noted that the applicants had posed two questions; whether President Lungu would have served two full terms at the expiry of his current term, and whether he was eligible to contest in 2021.
Justice Chibomba, however, observed that the manner in which the first question was couched targeted the incumbent President as an individual.
She said they did not encourage that because the framing of the questions in court regarding the interpretation of constitutional provisions should not target any individual as it was meant for general interpretation.
Justice Chibomba, therefore, guided on how the question should have been framed.
“What we are dealing with in the present case is the office of President. Of course we understand what the question is or what it ought to have been. The question therefore ought to be have been framed ‘whether in terms of article 106(3) and (6), a presidential term of office that ran from January 25, 2015, to September 13, 2016 can or should be considered as a full term’,” she said.
Justice Chibomba said the issue in relation to the presidential term that straddled through constitutional regimes from January 25, 2015 to September 13, 2016, was not premature but ripe for consideration.
“This is because the issue of the eligibility is not only triggered by the nomination process as provided for by the constitution. Therefore, a person need not wait until the nomination period before seeking an interpretation of article 106,” she said.
Justice Chibomba then read the provisions of article 106 of the Constitution.
“In 2016, further amendments where made to the Constitution. The introduction of article 106 for the tenure of office. Article 106 provides as follows: (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— (a) dies; (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,” she read.
“(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.”
Justice Chibomba observed that in the pre 2016 Constitutional arrangements, there was no provision for a Vice-President to come into office to fill up the vacancy in the office of the President and to complete the unexpired term of office.
She said, however, that following the enactment of the Constitution of 2016, a new set of provisions relating to the term of office of President as to how a vacancy shall be filled, were ushered in, adding that in this regard article 106 covers that aspect.
She reiterated article 106(6).
Justice Chibomba said while article 106(1) provides that a presidential term of office was five years, article 106(6) defines what constitutes a full term ‘three years and above is a full term, a period less than three years is not a term’.
“With the enactment of article 106(6), two other scenarios now obtain. Under article 106(6)(a) it is possible that a person can serve for a period of less than 10 years, being one term of at least three years and another term of five years and these will count as two full terms. Under article 106(6)(b) where it is now possible for one to occupy the office of President for a period which is less than a full term in addition to two full terms of office. Meaning that a President can be in the office for a total of almost 13 years,” she said.
Justice Chibomba said although the Constitution of Zambia amendment act no1 of 2016, provided for the continuation of the President in the office of the President, it made no provision to how the period served from January 25, 2015 to September 13, 2016 which straddled two Constitutional regimes should be treated in view of the change in the Constitutional provision.
She said the legislature did not address the other aspect in the transition provision, adding that where the act failed to include such provision expressly, the court was required to draw such inferences as to what the legislature must have intended.
“Where the act fails to include such provision expressly, the court is required to draw such inferences as to the intended transitional arrangements, as in the right of the interpretative criteria it considers Parliament to have intended. Where it is determined that an act failed to include express transitional provision, it is for the court to draw an inference as what the legislature must have intended,” she said.
“Therefore the question is what could have been the intention of the legislature on this aspect of the transitional arrangements for the presidential term straddling two constitutional regimes? Our firm view is that it could not have been the intention of the legislature not to provide for the period that was served and that straddled two Constitutional regimes, as to how it should be treated.”
Justice Chibomba therefore said the sub-articles of article 106 can therefore, not be isolated from each other when interpretating the article.
She ruled that President Lungu’s tenure of office from January 2015 to September 2016 could not be considered as a full term.
“Our answer to the question that we have rephrased is that, the presidential tenure of office that ran from January 25, 2015 to September 13, 2016 and straddled two constitutional regimes, cannot be considered as a full term. As regards the second question posed, whether the incumbent President is eligible for election in 2021, our view is that in light of the position that we have taken, the second question has become otiose and we shall not consider it. Since this matter raised serious constitutional issues, it is only fair that each party bare own costs,” ruled the ConCourt.
And speaking after the judgement, PF secretary general Davies Mwila hoped that the debate on President Lungu’s eligibility to contest in 2021 would now come to an end, so that government could concentrate on building the economy.
“The record has been put straight by the Constitutional Court, I hope that the debate now will come to an end so that the Zambian people and government can concentrate on building the economy of this country. It’s the victory of President Lungu and PF,” said Mwila.