PATRIOTS for Economic Progress leader Sean Tembo says while he remains against Bill 10, he is inclined to agree with arguments put forward by the PF that article 52(4) of the Constitution is retrogressive and needs to be repealed.
In a statement, Tembo said if there was a mechanism to repeal the said article without using Bill 10 which is loaded with several other retrogressive articles, he would support it.
“I have been following the debate around the proposed repeal of article 52 of the Constitution of Zambia as amended by Act No. 2 of 2016. The long and short of this article is that it provides for the challenge of a candidate’s nomination through a petition which must be heard by the courts within 21 days. While such a petition is in place, such a candidate is incapacitated and unable to campaign, and will obviously disadvantage such a candidate in terms of time needed to campaign. On one hand, the PF through their chairman for legal [Brian Mundubile] are advocating that this article be repealed because it is unfair to potential candidates at presidential, parliamentary and local government level,” Tembo said. “On the other hand, some opposition are advocating that this article be maintained because it will come in handy in petitioning Mr Lungu’s candidature in 2021. In fact, one of the constitutional lawyers is quoted as having already drafted a petition against Mr Lungu and it is ready on his laptop as we speak. This has excited a number of opposition stalwarts who believe that Mr Lungu’s candidature can be blocked by a court petition in 2021, after he files his nomination.”
Tembo said anyone who believes that they could use an administrative hurdle to prevent a serving president such as President Lungu from filing his nomination, was probably high on an illegal substance.
“That is simply not the way it works, and it is folly for anyone to think they can pull such a feat. But I know that some brainless opposition advocates will argue to say what is wrong with trying? Besides, it will help to distract President Lungu. Well, I will tell you what is wrong with trying to undermine Mr Lungu’s 2021 candidature using article 52(4),” Tembo said. “What is wrong is that first of all, it cannot succeed and secondly and most importantly, after your ploy has failed, it will be fair game in the eyes of the public for PF to use the same article 52(4) against you. Now, based on the well-documented inclination of the ConCourt, I wouldn’t be too sure on how it would rule on such a counter-offensive. But I wouldn’t want to take the chance if I was you.” He said while politics were understood in different light by different people, he had always believed that the key to political success is always maintaining a moral high ground in the eyes of the public.”
Tembo said to seek to petition President Lungu using article 52(4) on a matter that the Constitutional Court already ruled upon, which ruling he does not agree with although he respects, the opposition would be sinking low.
“And once you have sunk low, if you are subsequently beaten using your own machinations, you’re unlikely to garner much public sympathy. What is good for the goose must be good for the gander,” he said.
Tembo said he believes that Bill 10 was a bad amendment to the Constitution because it is self-serving to the ruling PF party.
He said he hopeful that Constitution (Amendment) Bill No.10 of 2019 would be defeated if ever tabled in Parliament.
Tembo said it was his considered view that the opposition advocates of the retention of article 52(4), in the hope that it can be used to fix President Lungu in 2021, are naive and myopic.
He said article 52(4) was a greater danger to the opposition candidates than it is to President Lungu.
“We all know how the Constitutional Court operates here in Zambia based on past matters involving President Lungu, and we all know that the composition of the ConCourt has not changed, it is still the same. So it baffles me as to what gives some of these opposition advocates confidence that their petition against Mr Lungu in 2021, using the provisions of article 52(4) will go anywhere. The classic definition of foolishness is doing the same thing over and over again while expecting a different result. There won’t be a different result should President Lungu be petitioned in 2021. In fact, the petition will be dismissed at lightning speed and with costs,” he said. “Now, the question that l would like to pose to some of these opposition advocates that say article 52(4) is a good article and should be retained is; if a petition was to be filed against your candidate, how sure are you that it will be determined in a timely manner?”
Tembo asked whether the ConCourt would not drag its feet and utilise the entire 21 days that is provided for to hear and determine such petitions.
“You may wish to note that 21 days taken out of the last 60 days towards an election is a crucial time. You might argue and say; but our presidential candidate does not have any sticking issues on the basis of which he can be petitioned using article 52(4). But I can assure you that when you search critically, you will always find something grey about each candidate, which can be used as a basis for a petition using article 52(4). Suffice to mention that whether a petition under article 52(4) has merit or not, it still has to be heard by the court and time will still be wasted,” he warned.
Tembo said if he wanted to prop up his presidential candidature in 2021 using underhand methods, he could simply petition both President Lungu and UPND leader Hakainde Hichilema using article 52(4), and “while these two are grounded and busy fighting legal battles at the Constitutional Court”, he could be traversing the length and breadth of the country campaigning.
“At the end of the day, it is possible that every candidate can petition every other candidate using article 52(4) in 2021. So it is naive and myopic for some opposition advocates to thing that it is only them that can petition Mr Lungu using article 52(4) in 2021. Like the saying goes; two can play that game,” Tembo said.
He urged his opposition colleagues to focus their energy and resources to designing and implementing a fool-proof vote monitoring and tabulation system which would protect their votes in 2021.
He said the key to defeating President Lungu and his PF party lies in protecting their votes as opposition.