“banner728.gif"

Why President Lungu is not eligible to contest for re-election in 2021

[By James Kayula]

There are many reasons why the concept of ‘term limit’ is characterised as a feature of democracy and an institutional barrier to personal rule and dictatorship.

According to Linz, presidents exercise what he terms uni-personal power, which can very easily be abused and potentially contribute to the demise of democracy. This view is also echoed by Maltz, when he contends that term limits are an important feature of presidential government, as they help to break an electoral authoritarian regime‘s descent into outright dictatorship. The popularity of presidential term limits therefore reflects a recognition that this office, more than any other, needs to be rotated on a regular basis to ensure the survival of democracy.

Further justification of the presidential limit is to be found in the wisdom of Altman, who makes a forceful argument that, by shaking up power structures and mitigating the advantages of incumbency, term limits can – excite the electorate to turn out and vote, thereby enhancing wider citizenry participation in political processes.

In many African States, it was largely after the cold war, that a broad consensus emerged in favour of democratisation and consolidation of democratic institutions. Some of the mechanisms adopted included strengthened legislatures, decentralisation and protection of judicial independence. Limits on the duration and number of terms a president may hold office is one of these mechanisms.

Term limits are now seen as part of the toolbox to protect democracy, together with regular and fair elections, including the protection of fundamental rights embedded in African Constitutional fabrics.

However, this cherished toolbox of democracy is facing a serious strain in many African States. Presidential term limits have been put to their severest tests in Africa. The results have been mixed. In some cases, they have survived while in others, they have been made malleable so as to gift an incumbent a third term.

Modern third term bids are highly sophisticated and can be difficult to arrest, especially where the courts are fronted to render a veneer of legality by coming up with ‘inventive’ and highly questionable interpretations of the Constitution as was the case for the late president Pierre Nkurunziza of Burundi, where the Constitutional Court decided that, although the Constitution limits presidents to two terms, president Nkrunziza’s first term did not count because on that occasion, he was not elected by the people of Burundi, but by parliament.

In Zambia, presidential term limitation first became a feature of the Constitution in 1991. The idea behind the term limit was to prevent a person from becoming a ‘life president.’ This was after the country had witnessed the damaging effects of personal prolonged rule of the first president Kenneth Kaunda. This indeed was and still remains a progressive feature of the Constitution, and has since become a fixed star for constitutional democracy.

In terms of Article 35 of the 1991 Constitution of Zambia, the limitation in holding of the office of president was based on having served two terms of five years each. Under this Constitution, a person who had held office for two terms of five years each became ineligible for re-election to the office. It can therefore be deduced, under the 1991 constitutional arrangement that, if a president decided to resign in the fourth year of his second term of office, he would be eligible to come back at any time to contest the position of president on account that he did not serve the two terms of five years each as required by the Constitution. It is therefore safe to conclude that under the 1991 Constitution, holding of the office of president was tied to the term of office.

In 1996, the 1991 Constitution was amended substantially, and these amendments touched on the office of president. The 1996 Constitution introduced a major change in wording. Admittedly, the term of office was maintained to be five years. However, unlike the 1991 Constitution, whose term limitation was based on holding office for two terms of five years each, the 1996 amendment effected the provision that any person who has twice been elected as president would not be eligible to contest for re-election. The effect of this change was that regardless of the period that one had served as president, it counts as a term as long as one has been elected president.

As a point of illustration, if a president decided to resign in his second term, say, after being in office for only one year, such a person would be ineligible for re-election on account that he has been elected twice as president, notwithstanding that he only served for a year in his second term. In a nutshell, under the 1996 Constitution, term limit was not based on how much time one served in the office of president, but on account of how many times one had been elected to that office. Further, in this context, if a person had been elected twice to the office of president, that effectively amputates that person’s further presidential ambitions.

In 2016, there were substantial amendments to the Constitution that equally reflected on the office of president in the following terms:

“106. (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.

(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.”

The term of office under the 2016 amendment remains five years. There is, however, a change of wording relating to term limit. While under the 1996 constitutional amendment, the limitation was based on having been elected twice, under the 2016 constitutional amendment, the limitation is premised on one having twice held office of President. Therefore, in terms of clause 3, a person who has twice held office as president is not eligible for re-election to that office. The change in terminology from ‘elected twice’ under the 1996 constitutional amendment to ‘holding office twice’ under the 2016 amendment is a response reflecting the introduction of the running mate clause in the Constitution. The introduction of the running mate clause in the Constitution now entails that a running mate can assume the office of president in the event that the office falls vacant without going through an election. Simply put, if the office of president falls vacant, under the present constitutional arrangement, the vice-president automatically assumes the office of president to fill the vacancy without the need for elections.

What is, however, critical is the retention of the term limit under the 2016 constitutional arrangement. The term limit under the current constitution is not any different from the 1996 constitutional amendment, except that it now uses the phrase ‘holding office twice’ while the 1996 Constitution as amended employed the phrase ‘twice elected.’ The rationale in the distinctive employment of phrases has already been explained above; being a response to the introduction of the running mate clause. The net effect of the provisions under the 2016 Constitution, as amended in terms of term limit, is that a person who has twice held office as president is ineligible to stand for re-election.

Moving forward, arising from the introduction of the running mate clause in the 2016 Constitution as amended, Article 106 (6) provides for reckoning of time in circumstances where the vice president assumes the office of President to fill the vacancy in that office. In other words, this provision provides the manner of computing what constitutes a full-term when the vice-president or an elected person in lieu of the vice-president takes up the office of president on account of a vacancy in that office.

The gist of the provision is that if the vice-president assumes the office of president to fill the vacancy in the office of the president, and there are at least three years remaining before the date of the next general election, that period will count as a full term. In other words, as long as there are at least three years remaining before the next general elections, the vice president or an elected person who assumes office of the president midway will be deemed to have served a full term of five years notwithstanding that he/she will only have been in the office for less than five years.

In a case such as this, in terms of eligibility, such a person can only be eligible for re-election to the office of president for a further one term. If, on the other hand, the vice president, at the time of assuming the office of president, arising from the vacancy in the office of president, there are less than three years remaining, such a period will not be regarded as a full-term. Consequently, such a person will be deemed not to have held office at all during that period, and as such, eligible for election to the office of president twice.

It must, however, be quickly noted and emphasised that Mr Edgar Chagwa Lungu did not ascend to the office of president because he was vice-president or as a result of an election held because the then vice-president could not, for any reason, assume the office of president. The Constitutional Court, nevertheless, in the case of Daniel Pule & Others v. Attorney General, Judgment No. 60 of 2018, suggestively regarded Mr Edgar Chagwa Lungu as one who assumed power under Article 106 (6), and stated that since the period from 25th January 2015 to 13th September 2016 was less than three years, the incumbent would not be regarded as having served a full term.

What is intriguing, curious and strikingly questionable is why the Constitutional Court seemed to have fitted the incumbent within Article 106 (6), when it is in fact very clear, factually, that the circumstances in which the incumbent assumed the office of president are completely different from those contemplated under article 106 (6). For the avoidance of doubt, Article 106 (6) relates to the vice-president who automatically assumes the office of president to fill the vacancy on account of having been the running mate or where a person gets elected to fill the vacancy in the office of the president in lieu of the vice-president.

Mr Edgar Chagwa Lungu was not in any of these circumstances for the Constitutional Court to extend the provisions of Article 106 (6) to his circumstances. He was neither the vice-president nor was he elected to the office of the president owing to the inability of the vice-president (running mate) to assume power automatically.

How then should the Constitutional Court have interpreted the circumstances of the incumbent and his eligibility to stand in 2021? Since we have discounted the constitutional provisions under Article 106 (6) from applying to the facts under which the incumbent, Mr Edgar Chagwa Lungu, assumed the office of president; the Constitutional Court should have simply based its interpretation of the eligibility of the incumbent on Article 103 (3) as read together with Article 106 (2). Article 103 (3) provides that a person who has twice held office as President is not eligible for election. Obviously, at this point, the question that inevitably arises is: what does ‘holding office’ mean? The answer seems to appear in Article 106 (2), which provides: “A president shall hold office from the date the president elect is sworn into office and ending on the date the next president elect into office is sworn into office.” From this provision, it becomes clear that holding office by the president commences from the time that the president elect is sworn into office until the time another president elect is sworn into office. Therefore, it inevitably follows that a person who has been sworn into office as president is said to have held office from that time until the time when the next president elect is sworn into office.

The question, therefore, is: was Mr Edgar Chagwa Lungu sworn into office on 25th January 2015? The answer is yes. Mr Edgar Chagwa Lungu was sworn into office as president on 25th January 2015 and ending the day when the next president elect was sworn into office, 13th September 2016, who in this case was himself upon getting re-elected.

What, therefore, settles the question of holding office is the aspect of being sworn into office. If a person was at any point sworn into office, then such a person held the office of president between the period of being sworn into office until the next president elect is sworn into office. Holding office has nothing to do with the period one has served as president. To the contrary, holding office is linked to being “sworn into office.” If one has been sworn into office as president, such a person has held office regardless of the period served.

The issue of how long one has served as president only becomes necessary if such a person assumed the office of president as vice-president to fill the vacancy in the office of president. It is only in such a case that it becomes necessary to invoke the provisions of Article 106 (6), which look at whether the remaining period before the next general elections are held is at least three or less than three years. It is only in such situations that the term of office gets to have a bearing on the holding of office.

In the premises, Article 106 (6) is a ‘locked’ provision which is only to be opened up in strict and specific circumstances as discussed above. Therefore, making a wholesale pronouncement on this provision that holding office is attached to the term of office is adulterating the Constitution. If a person did not assume the office of president under circumstances spelt under Article 106 (6), the length of time one has served as president has no bearing at all on “holding office”. The implication is that under the current constitutional arrangement, apart from the assumption of the office of president under Article 106 (6), a person cannot be sworn into office as president more than twice.

A closer look at the decision of the Constitutional Court reveals that this decision has the effect of nullifying the concept of term limit, which has been a cherished virtue since 1991. The interpretation that the Court places on Article 106 (3) as read together with Article 106 (6) has the capability of plunging the country into a constitutional crisis. To put this observation into context, in paragraph 108 of the judgment on page 77, the Constitutional Court opined as follows:
“Previously, the limitation on eligibility for election to the office of president as provided in the repealed Article 35 was premised on the fact that a person had been twice elected, even, when the person was required only to serve the remainder of the term of office of his predecessor. Under the current constitutional regime, however, the holding of office as president is attached to the term of office as defined in Article 106 (1) and Article 106 (6) read together. While Article 106 (1) provides that the presidential term is 5 years, Article 106 (6) defines what constitutes a full-term”

With due respect to the Constitutional Court, the interpretation in this quotation is a serious mutilation of the Constitution. It is incorrect to say that the holding of office is now attached to the term of office. “Holding office” is still distinct and independent of the “term of office” just like the phrase “elected twice” under the 1996 constitution as amended, had no bearing on the term of office. “Holding of office” and “term of office” under the 2016 Constitution amendment only intersect if a person assumed the office of president from the position of vice-president or where a person was elected in lieu of the vice-president to fill the vacancy in the office of the president.

According to the Constitutional Court’s interpretation, any person who serves in the office of president for less than three years would be regarded not to have held office. This position is extremely dangerous and has the effect of wiping out the concept of term limit. To unmask the absurdity of this interpretation, take for instance, President B got elected in 2016 and gets re-elected in 2021, if he decides to resign in 2023 after only exhausting 2 years 11 months of his five year mandate in his second term, President B would be regarded as not having held office since the period he would have served is less than three years. The implication is that President B is eligible to contest the election of 2026. And if the same President B gets elected in 2026, he can as well decide to resign in 2028 before he clocks three years in office and return to stand again in 2031. And if elected, there is nothing to stop him from resigning in 2033 so that he is eligible to stand again in 2036.

This unscrupulous conduct can go on and on, unchecked, especially if the country had a brazen and emboldened individual as President, and unfortunately, Zambia is not short of such persons. Effectively, the interpretation of the Constitutional Court has the potential to rob the Constitution of this critical institutional barrier of term limit, and inadvertently and potentially re-introduce “life president” and its dreaded evils. In the wake of legal advocacy and strengthening of the rule of law, this will not be allowed to pass.

The Constitutional Court, however, has a golden opportunity to reconcile itself with and revive the spirit of term limit since it did not directly pronounce itself on the rights of Mr Edgar Chagwa Lungu to stand in 2021 on account that he was not a party to the case. As a consequence, this case was largely hypothetical and academic in the interpretation of the constitutional provisions dealing with the issue of eligibility. In having a “second bite at the cherry,” the Constitutional Court can, in 2021unwrap itself from this web of constitutional crisis by declaring the incumbent ineligible to stand.

In a nutshell, Zambia faces a pernicious third term campaign and its far-reaching consequences. Unlike the failed 2001 third term bid by the late president Frederick Chiluba, whose illegality was ‘naked’ to everyone’s eye, the current third term is subtle and benign as it presents itself in somewhat misplaced apparel of legitimacy provided by the Constitutional Court. Yet, when stripped to its barest, it is simply a third term bid akin to that of the late Nkurunziza of Burundi, whose rule was not far from despotic.

The author is a legal practitioner and lecturer at the University of Zambia. Send comment to: james.kayula@unza.zm

Leave a Reply

Your email address will not be published. Required fields are marked *