CONSTITUTIONAL lawyer John Sangwa says the Zambian Constitution has been abused and breached on so many occasions without consequences to perpetrators, a situation that he says must not be allowed to continue.

And Sangwa says President Edgar Lungu was illegally sworn into office in 2016 because the Constitutional Court did not declare his election valid after the presidential petition and further because he was not sworn in by either the Chief Justice or the deputy Chief Justice.

In an interview with News Diggers! Sangwa listed instances when the Constitution has been violated by those who are supposed to protect it, adding that allowing President Lungu to contest the August elections will be another added illegality.

“The Constitution must be taken seriously, It is not just for those who are vying for office of the President but also by the Constitutional Court itself. We cannot go on making mistakes or ignoring what the Constitution says. For instance Lungu was sworn into office on the 13th of September 2016 in violation of the Constitution. When the petition was filed challenging his election, the Constitutional Court misbehaved, disregarded the Constitution. There is no provision in the Constitution to dismiss an election petition. People say the petitioners ran out of time, that 14 days period of time is for the courts to do its job not the petitioners. The petitioner only has seven days in which to challenge the election. When a petition is filed, the legal obligation passes over to the Constitutional Court which must hear that petition within 14 days. After that period elapses, there is no provision to dismiss the petition. Whether someone has done their petition correctly or wrongly the court must decide within 14 days if the petition does not make sense, they should go ahead and declare the election of the president-elect valid. Article 101(6) states that: ‘The Constitutional Court may, after hearing an election petition— (a) declare the election of the presidential candidate valid; (b) nullify the election of the presidential candidate; or (c) disqualify the presidential candidate from being a candidate in the second ballot. But that was not done, the ConCourt never declared Mr Lungu’s election valid or that he was duly elected. These are the mistakes the Constitutional Court made,” Sangwa explained.

When asked if the declaration of the returning officer from the Electoral Commission of Zambia did not count, Sangwa said not after an election petition.

“It is not the job of the returning officer to determine who was duly elected after a petition is filed. So what happens is that, the moment there is a petition that has been filed, that declaration gets nullified, it means you cannot be sworn in as duly elected president until the Court says so. And that is what I am saying was not done. So the fact that the petition was not decided, it was not the failure of the petitioner, it was the failure of the court. The court failed to do its job within 14 days, not the petitioners. In this case, the court would have been properly in order to say ‘guys ‘we have seen your documents, we have not found merit in it, your petition is dismissed. We therefore declare that this man was validly elected’, or they can say ‘this man was not validly elected. We therefore, nullify his election’, in which case you are going to have a fresh election within 30 days. If you declare that he was validly elected the next thing is to have that person sworn into office by the Chief Justice or the Deputy Chief Justice. These things never happened, okay? Now, I am saying we can’t go on ignoring what the Constitution states. It is illegal, the man assumed office illegally in violation of the Constitution,” he said.

He added that people were ignoring the provisions in article 106 of the Constitution because they had already gotten away with previously breaching the Constitution.

“Because of these illegal acts which have been tolerated, that is why people can still push this in the face of very clear provisions of the Constitution in article 106(3), which says ‘A person who has twice held office as President is not eligible for election as President.’ They can still claim that somebody qualifies. Why? Because they have gotten away with previous breaches of the Constitution. Another mistake made is on the Speaker of the National Assembly. In Article 104(3) the Constitution states: ‘Where an election petition is filed against the incumbent, under Article 103 (1), or an election is nullified, under Article 103(3) (b), the Speaker shall perform the executive functions, except the power to—(a) make an appointment; or (b) dissolve the National Assembly’. Again this was not done. This was another illegality! Even after that, in Article 105(1), the law says: ‘The President-elect shall assume office after being sworn in by the Chief Justice or, in the absence of the Chief Justice, the Deputy Chief Justice.’ But Mr Lungu was not sworn in by either of the two. That is another illegality that people got away with,” he said.

Asked why he felt the Chief Justice and the Deputy Chief Justice did not swear in President Lungu, Sangwa said they probably new that there was a mistake that had been committed by the Constitutional Court.

“So you can ask why wasn’t he sworn into office by the Chief Justice or the Deputy Chief Justice? The Oath should have been read to the President by the Chief Justice or Deputy Chief Justice. That is what the law says, but they couldn’t because in the first place the ConCourt did not declare Mr Lungu validly elected, so they knew there was a problem, that’s why they did not do it and instead, a registrar was given the responsibility to swear in the President-elect. That is totally illegal, it is another breach of the Constitution, you can’t do that. So the point I am making is that these issues are not partisan issues, these are national issues that require sober minds to debate, not to be emotional. That is why we need to get it right, we need to learn from our mistakes that happened, the Constitutional Court itself, it should learn from its mistakes,” Sangwa explained.

And Sangwa said the Constitutional Court also misbehaved in the Danny Pule case, which he said was another illegality.

“The Constitutional Court misbehaved in the Danny Pule case. How? The Constitution Court was asked two questions, what did they do? They restated one question and said ‘we will not answer that question, but instead this is the question you should ask’. The court has no authority to restate a question put to it. The court is independent and impartial. If you submit a silly question, the court will answer that silly question. It is not the job of the court to advise you how your question ought to have been framed. You can’t turn around to say ‘actually this question is a wrong question, the right question you should be asking is this one’. That has never been the job of the court. The problem is that the moment you do that, you are helping one side, you are favouring one side which is never the function of the court,” argued Sangwa.

“I am not suggesting that the court is a robot, if the court is convinced that there is a problem with the way the words have been framed it may restate the question but the parties must agree with the restated question. Then if the parties have agreed, the parties will address the court on the reframed question. The court has no power to reframe the question itself and answer it. The court cannot volunteer an issue, which is what happened in this case. These are the challenges we continue to have. I challenge any lawyer to read through because what happened in this case, the question they answered, we never addressed the court on that issue. Nobody asked whether the period between January 2015 and September 2016 amounted to a full term of office, nobody asked that question. In any case it was a moot issue, the real issue was whether President Lungu qualified after he finishes his term in 2021, will he be eligible to contest again, that was the issue which they refused to answer. And they were right to refuse to answer that question because Mr Lungu was not before court”