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The Perspective, By Edward Bwalya Phiri: Lungu on verge of annihilating the Constitution

A renowned Cameroonian professor of law, Carlson Anyangwe wrote that, “A constitution is a charter. It sets out the limits of the powers conceded by the ruled to the rulers. It sets out the manner in which a people expects to be governed.”

And Professor Reginald Austin aptly posited that, “Constitutions are … primarily about political authority and power within a state; where it is located, and how it is conferred, distributed, exercised and limited among the separate organs of the state and in relation to its subjects.”

Today on The Perspective, consideration is on constitutional limitations that have been placed on presidential terms in Zambia. I am tackling this matter for the second time, since I did not expansively handle it when I first wrote in this column on October 31, 2020. I just hope that the matter will be settled today, once and for all.

Since 1991, the Zambian Constitution has had the restraint on the number of times that a person can hold the office of the President. And it must be noted that, to date, Zambia is still using the same Constitution, however, with the 1996 and 2016 amendments. Commenting on the 1996 constitutional amendment, Professor Anyangwe wrote that, “It was enacted as the ‘Constitution of Zambia (Amendment) Act No. 18 of 1996’ and was promulgated by the Republican President. In legal theory, therefore, the government did not abrogate [repeal and replace] but merely amended the 1991 Constitution.”

The same can be said about the 2016 Constitutional amendment, and on the preliminary provisions of the Constitution [Amendment] Act no.2 of 2016, Article 1 provides that, “This Act may be cited as the Constitution of Zambia (Amendment) Act, 2016, and shall be read as one with the Constitution of Zambia [1991], in this Act referred to as the Constitution.”

Therefore, the position, regarding the presidential limit remains the same. For instance, Article 35(2) of the 1996 amendment provided that, “Notwithstanding anything to the contrary contained in this Constitution or any other Law no person who has twice been elected as President shall be eligible for re-election to that office.” And Article 106(3) provides that, “A person who has twice held office as President is not eligible for election as President.” The wording may have changed and a new clause added, but the spirit and the tenor of the 1991 Constitution still presides.

His Excellency Edgar Chagwa Lungu has covertly expressed interest to run again for the office in this year’s general elections, despite being elected twice and sworn in twice as President of Zambia. A lot of theories have been proffered as to whether or not he qualifies to stand again. And the born of contention is not so much on whether he has been in office twice or not, but on whether the two times that he has been in office suffice as per Constitution. And there is no dispute on the current term that commenced in 2016 to date, however, the fuss is on the earlier term that was served between 2015 and 2016.

It must be noted that, the 1991 Constitution with both amendments still restrains a person from holding office more than twice. But the challenge came in with the new provision [Article 106(6)] that seeks to qualify a term. It is not in dispute that President Lungu’s first stay in office overlapped the 1996 and 2016 constitution amendments. While the first term would be considered a full term under the 1996 provision, which ushered him into power, the same period would not be reckoned as such under the new 2016 provision.

Its trite that Statutes are presumed not to operate retrospectively [cannot backdate to a period before its enactment] as far as substantive law is concerned. This is embodied in the Latin maxim ‘lex prospecit non retrospecit’, which is translated as, “The Law is forward looking and not backward” and interpreted as, the law is prospective and not retrospective or retroactive. This rule involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary. Therefore, one exception to the ‘lex prospecit’ general rule, is that it must be expressly stated in the statute, for it to have any retrospective effect.

A thorough perusal of the Constitution and its attendant enabling Act, shows no intimation that Article 106 would have a retrospect effect.

So, in order to resolve the transitional challenge, there is need to appreciate the intention of the framers of the law, so as to know whether to consider President Lungu’s first term under the 1996 provision or its successor. This intention is only found in the transition provisions; the Wiktionary defines a Transitional provision as, “A statutory provision that regulates a process that starts before an amendment or enactment of the statute comes into force, and ends after the amendment or enactment of the statute has come into force.” Most transitional provisions for the current Constitution are embodied in the Constitution of Zambia Act No.1 of 2016 [the enabling Act of the Constitution], and still other clauses are contained in the Constitution Amendment Act No. 2 of 2016 itself.

Whilst the Constitution does not provide a transition clause as regards the incumbent President, the enabling Act does and section 7(1) provides that, “The President shall continue to serve as President for the unexpired term of that office as specified by the Constitution in accordance with the Constitution.” And to clarify the foregoing jargon, section 2(1) provides that, “In this Act, unless the context otherwise requires— “Constitution” means the Constitution of Zambia, 1991, in force immediately before the effective date [January 5, 2016]; “effective date” means the date of the commencement of this Act and the Constitution as amended as provided in section four; and (2) Except where the context otherwise requires, words and expressions used in this Act have the same meaning as in the Constitution as amended…”

If we were to rephrase section 7(1), we would say, “The President [Edgar Chagwa Lungu] shall continue to serve as President for the unexpired term of that office as specified by the [1991] Constitution in accordance with the Constitution [Amendment Act no.18].” In other words, the new Article 106 provisions did not apply to President Edgar Chagwa Lungu’s first term, instead it was solely served under the 1996 amendment; where when once elected regardless of the period, it will still be regarded as a term.

It is clear from the forgoing information that President Lungu has served two terms; one in the 1996 provisions and the one in the 2016 provisions. He cannot therefore run again. If my President who is my senior counsel will decide to continue and run for presidency, he will together with his handlers be blatantly and with impunity obliterate the supreme law of the land, which he swore to defend and protect. Article 91(3) (a) mandates the President to, “respect, uphold and safeguard…” the Constitution.

Further, the Constitution of Zambia as amended in 2016, fundamentally provides in Article 2 that, “Every person has the right and duty to— (a) defend this Constitution; and (b) resist or prevent a person from overthrowing, suspending or illegally abrogating this Constitution.”

I am sure I have clarified this issue and therefore, every Zambian will rise to the occasion and defend the Constitution obliteration by anyone. And I am positive, that for the good of the rule of law and for posterity, my President will heed our calls for him to pass on the button to another person. For today I will end here; it’s Au revoir, from EBP.

For comments: elbardogma@yahoo.com

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