Former Justice Minister Wynter Kabimba says it will be illegal for President Edgar Lungu to contest the 2021 elections because the Constitution explicitly disqualifies him.

And Kabimba has observed that the 2016 Constitutional amendment’s intention was to give President Lungu a third term in office, but the phraseology betrayed that objective.

Meanwhile, Kabimba says it is embarrassing that the Constitutional Court amended the eligibility petition on behalf of the petitioners because that is not part of the court’s mandate.

Commenting on President Lungu’s eligibility judgement, Kabimba, who is Rainbow Party General Secretary, insisted that the Head of State was not eligible to stand, arguing that the ConCourt misdirected itself in its ruling.

“The position of Rainbow Party is that President Lungu is not eligible to stand in 2021. The provisions which the ConCourt has based their ruling on apply to the vice-president. The article which deals with the President is just one and it says ‘A person who has twice been elected’, that article doesn’t talk about a term of office. In the pre 2016 one, it says under article 35, tenure of office of president, it says “Subject to clauses 2 and 4, every President shall hold office for a period of 5 years”, then under article 35, sub article 2, it says “Notwithstanding anything to the contrary contained in this Constitution or any other law, a person who has twice been elected as President shall not be eligible for re-election to that office”, so you can be elected as MP after you have been elected as President, the Constitution does not disqualify you. Now you can see that this is not talking about the tenure of office, it just says elected. Now, contrast that with Article 106 in the 2016 amendment, sub article 3 it says “a person who has twice held office as President is not eligible for election as president”, so the phraseology is different but it is exactly the same as Article 35, full stop!” Kabimba explained.

“This doesn’t refer to the term of office. So where did the Constitutional Court get this issue of the 15 months’ term? Because the first time when the word term is introduced is under article 106, sub article 6, sub article (a) which says “if the Vice-President assumes the office of President in accordance with clause 5, 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 president elect shall serve for the unexpired term of office and be deemed, for the purposes of clause 3, to have served a full term as president if on the date the president assumed office, at least three years remained before the date of the next general election or (b) not to have served a term of office as president if at the date the president assumed office, less than three years remained before the date of the next general election”, that is the first time the word term is introduced. And then they go further now to define what a term is. So I don’t see the confusion myself between the two. So there is no transition here that the ConCourt is talking about.”

And Kabimba observed that the 2016 Constitutional amendment’s intention was to give President Lungu a third term in office, but the phraseology betrayed that objective.

“But what is also important to state is that when you look at those articles, there is no doubt in my mind that they wanted to give Edgar a third term, but they phrased it badly. The drafting ended up excluding him. So I think [former justice minister Dr Ngosa] Simbyakula must have come from a kama drinking spree and he just said ‘this is okay’, and nobody paid attention to that. If I were in that situation, I would have said to them, ‘you are shooting yourselves in the foot, if this is your intention’. So the political intention was to give the man a third term or to exclude that period he served from 2015 up to 2016 but they failed to do that,” he said.

“The ConCourt misdirected itself in determining that the time President Lungu served from 2015 to 2016 is not a full term. That is where the misdirection is. Because the article which says twice elected is in both the old and the new constitution. So Edgar was elected in 2015, once. Then he was elected again in 2016 so that’s twice. And those two articles are not dealing with a term of office, they are just dealing with your having been elected, finish. The article stands out very clearly. “

Asked if it would be an illegality, which would go unchallenged, for President Lungu to stand in 2021, Kabimba said, “It will be an illegality. But whether or not you can challenge that, it will be another question because the Constitution says the decision of the Constitutional Court is final. So, if you want to bring up another petition, then the other side would say ‘you have brought to court a matter which has already been decided by the court’.”

Asked if the country was expected to live with that illegality since the ConCourt was a court of final jurisdiction, Kabimba said, “Well, that’s what the law says…whether or not the ConCourt can review its own decisions, the Supreme Court has said no.”

Meanwhile, Kabimba said it is embarrassing that the Constitutional Court amended the eligibility petition on behalf of the petitioners because that is not part of the court’s mandate.

“That’s another problem. Does the court have powers to amend a petition? It doesn’t have. So the court should have dealt with the issue it was invited to delve into. It has no powers to rephrase the petition of the petitioner, such power is not vested in the court. So I think that was a misdirection on the part of the court. The role of the court is to determine the question put forward by the petitioner within the confines of the constitution. If I go to court and I file a petition for divorce, Mukosha Funga is my wife, and we have to share house number five, even if the judge knows us, he can’t say ‘No, you have made a mistake, your house is house number 6, not 5’, that is not the role of the court,” said Kabimba.

“And the court can’t say, ‘I attended your wedding, you got married on 26th of October, not on the 17th”, that’s not the role of the court, he can’t rephrase the petition. So you have a lot of problems about this matter. And even if you do a story indicating the actual question which was asked and then you show that paragraph where the court is saying they have rephrased the question, that is embarrassing for the court.”