ConCourt sets June 11 as judgment day in Lungu eligibility case

CONSTITUTIONAL lawyer John Sangwa has argued that the Constitutional Court has never pronounced itself on whether President Edgar Lungu is eligible to contest elections for the third time and nowhere is it written in its judgments in the Dan Pule and Bampi Kapalasa cases.

He said if the court secures President Lungu’s third term bid based on the argument that a period less than three years does not constitute a term, the court would create irrational laws as there would be Presidents in perpetuity (wamuyayaya).

Sangwa said Presidents would be resigning before they attain three years in office and still contest elections because the one-year period is not counted as a term.

This is in a matter where the Legal Resources Foundation limited, Historian and political commentator Sishuwa Sishuwa and Chapter One Foundation limited have petitioned President Lungu for abrogating the law by filing in his nomination papers as the PF presidential candidate in the August 12 general elections after being sworn into office as President twice.

The petitioners’ contention is that the Head of State has been sworn into office twice because he was not a vice-president of the country when he concluded late President Michael Sata’s term following the latter’s death as ruled by the Constitutional Court in the Dan Pule case.

When the matter came up for hearing before judges Hildah Chibomba, Ann Sitali, Mungeni Mulenga, Palan Mulonda, Margaret Munalula, Martin Musaluke, Mwila Chitabo, Matthew Chisunka, and Judy Mulongoti, Sangwa, who is representing the petitioners, argued that President Lungu had violated Article 106(3) of the Constitution which was serial in character and content.

Sangwa, who was given 10 minutes in which to argument his case, said President Lungu has already held office twice because he was not a Vice-President when he ascended to the presidency in 2015 when a vacancy occurred following the death of President Sata.

“President Lungu was elected by people twice; the first was in 2015 and the second in 2016. It is about the number of times you have been sworn into office despite the period served. He does not qualify to stand for election for the third time,” Sangwa said.

He submitted that it was never the intention of the draft committee of the constitution to allow anyone to go for a third term as the intention was to prevent anyone from doing so.

“By arguing that a period less that three years is not a term, we will create a situation where one will be a president in perpetuity because I can resign before I attain three years in office and contest elections, this is not Russia,” Sangwa said.

“It was never the intention for perpetuity, when you hold office twice that is it. President Lungu has violated Article 106(3), his nomination be declared a nullity because it violates the constitution.”

Presindent Lungu’s lawyer Bonaventure
Mutale said there were no new issues that had arisen warranting him to orally argument the case.

“The Dan Pule case has covered everything that counsel for the petitioners has submitted. We will not delve into the history of constitution drafting. The Dan Pule judgment will never be vacated as long as no application is made in that matter, it will stand the test of time,” said Mutale.

Sakwiba Sikota asked the court to condemn the petitioners to costs because the issue regarding President Lungu’s eligibility was dealt with twice and this was the third time it was being determined.

He said there was a serious conspiracy by the petitioners to disregard the integrity of the court.

Attorney General Likando Kalaluka said the argument by the petitioners that the Head of State was not a vice-president when he ascended to Presidency to conclude President Sata’s term, was academic and unfortunate.

He said the election of the President was changed after 2016 as the 50 plus one threshold was introduced unlike the simple majority and it was unfortunate to argue that there was an unfriendly judgment.

And Solicitor General Abraham Mwansa said it was inconceivable that the petitioners cannot comprehend what the court ruled in the Dan Pule and Kapalasa cases that the one-year period which President Lungu served in 2015 when he was first sworn into office did not constitute a term.

In reply, Sangwa said the change in the mode of voting was not mentioned by the court that President Lungu was staggering between two constitutions and Kalaluka cannot fill up the gaps for the court.

He submitted that the country never had two constitutional regimes.

Sangwa stated that there was a difference between the Dan Pule and Kapalasa cases as the petitioners in the two cases were seeking an interpretation while the Legal Resources Foundation limited, Sishuwa and Chapter One Foundation were alleging breach of the constitution.

“Mode of commencement is a factor. It will be incompetence on my part to bring the same case. Validity of nomination was not an issue in the Dan Pule and Kapalasa cases,” Sangwa said.

“How many people will be coming to court if the consequences are costs? Nobody will defend the constitution. It will be a bad idea to award costs. This is a new matter; the petitioners were not parties to the two cases. To award costs will be in violation of Article 52(4) of the constitution.”

He added that the petitioners had demonstrated that the petition had merit and the court should nullify President Lungu’s nomination because nowhere in the two cases – the Dan Pule and Kapalasa – did the court say President Lungu was eligible.

“It is now that the issues have become ripe for interpretation,” said Sangwa

Earlier, the court declined an application by former LAZ president Eddie Mwitwa to join three professors Chaloka Beyani, Cephas Lumina and Melvin Mbao to the matter as friends of court.

Justice Chibomba said the matter was urgent and the court would not allow anything to delay the matter.

Sangwa said the argument by Kalaluka that the matter was res judicata, the implication of the Dan Pule and Kapalasa cases was to curtail the issue of standing and the jurisdiction of the court.

“The right to come to court is conferred by the constitution and not common law, it can only be curtailed by the constitution. A party is at liberty to come to court and cannot be stopped by relying on the issue of res judicata,” Sangwa said.

“The preliminary issues have no merit, the returning officer is not a decision maker. Article 100(2) which deals with disqualifications it doesn’t matter what the returning officer does. He may accept nomination but if evidence emerges that it is not a prohibition to come to court, that does not equate to the nomination being valid.”

He added that the petitioners were in disagreement with the court in the Dan Pule and Kapalasa cases and were pointing out where the court went wrong in the two cases.

In response, Kalaluka argued that the petitioners had failed to show why the court should vacate the earlier decisions and that they should be prepared to suffer consequences of bringing issues already decided upon.

The court also remained silent on attempts by Mutale to have Sishuwa cited for contempt of court for discussing the matter on social media in what he termed derogatory by describing to the court’s interpretation in the Dan Pule and Kapalasa case as bogus.

Judgment has since been reserved for June 11.

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