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Is Lungu eligible: Summary of our amicus brief in Legal Resources Foundation and others versus Lungu and another

[By Professors Chaloka Beyani, Melvin Mbao and Cephas Lumina]

On 7 June 2021, we filed an application in the Constitutional Court for admission as amici curiae (‘friends of the Court’) in the matter between Legal Resources Foundation, Dr Sishuwa Sishuwa and Chapter One Foundation (petitioners) and Edgar Chagwa Lungu and the Attorney-General (respondents), Petition Nos. 2021/CCZ/0025 and 2021/CCZ/0027 (consolidated). Our application has generated significant public interest and media attention. Given the importance of the issues at stake, we have decided to summarise the arguments in our brief for the benefit of the general public (but encourage you to read our brief in its entirety).

As we do so, we wish to address the incorrect perception (evident in some media reports) that the Court ‘rejected’ or ‘dismissed’ our application. We filed our application in accordance with the rules of Court, well within the 21-day period for the hearing of a petition under Article 52(4) of the Constitution and served copies of the application on the petitioners and respondents. The application was therefore properly before the Court and, therefore, the Court (comprising all nine judges sitting) was bound to hear our application and make a formal ruling on it. The Court did not: it simply refused to hear the application, ostensibly because of the urgent need to hear the petition, which is relative to the 21-day period for hearing and deciding the petition.

In short, the Court avoided our arguments and made no ‘decision’ on our application for admission as amici. It is for this reason, and bearing in mind that the Constitution – which binds all persons in Zambia, State organs and State institutions, including the Courts – states, in Article 118(1) that ‘[t]he judicial authority of the Republic derives from the people of Zambia and shall be exercised in a just manner and such exercise shall promote accountability’ (our emphasis), that we have requested in writing an explanation from the President of the Constitutional Court regarding this rather unusual turn of events. We have not yet received a reply to our request. We insist that the Constitutional Court, including its President, must exercise judicial authority as mandated by the people under the Constitution.

A brief overview of the pertinent facts

On 21 May 2021, the Legal Resources Foundation filed a petition against presidential candidate Edgar Chagwa Lungu. A petition was also filed by Dr Sishuwa Sishuwa and Chapter One Foundation against Edgar Chagwa Lungu as a private citizen in his capacity as a candidate for election to the office of President (not as President).

On 24 May 2021, the Attorney-General filed an application in court to be joined as a ‘second respondent’ to both petitions and, two days later, the Court consolidated the two petitions and granted the Attorney-General leave to join the consolidated petitions as second respondent.

Why we applied to be admitted as filed our amicus curiae brief

To start with, amicus curiae (Latin for ‘friend of the court’) is someone who is not a party to a case who assists the court by providing information or expert insights regarding questions or law and fact. Superior courts as well as international and regional courts all over the world do receive and entertain amicus curiae briefs. Section 12 of the Constitutional Court Act, 2016 similarly envisages a role for amicus curiae. It provides:

(1) The Court may allow a person with expertise in a particular matter which is before the Court to appear as a friend of the Court.
(2) Leave to appear as a friend of the Court may be granted to a person on application orally or in writing.
(3) The Court, may on its own motion, request a person with expertise to appear as a friend of the Court in a matter before it.

Our application was duly received by the Registry of the Court on 7 June 2021. As Professors of Law with extensive experience in Constitutional Law, our application for admission as amici curiae was motivated by a desire to provide the Court with additional information and insights in respect of legal principles as well as local and comparative constitutional jurisprudence or case law to assist the Court reach a just outcome. In doing so, we stated plainly that we had no personal interest in the outcome of the matter but a professional interest (as Professors of Constitutional Law) in seeing that the Court fulfils its mandate (as ‘guardian of the Constitution’) under Article 128 of the Constitution in a manner that promotes the values and principles enshrined in the Constitution, in particular the supremacy of the Constitution, the sovereign will of the people, democracy, constitutionalism, good governance and accountability, as well as the development of the law.

We believe that the case raises important questions, including the correct approach to constitutional interpretation, the power of the Court to revisit its previous decisions, application of the principle of res judicata (‘a thing adjudged’), intervention of the Attorney-General in proceedings between private parties before the Court, the purpose of Article 52(1), the rights conferred under Article 52(4) and the purpose of Article 106(3) of the Constitution. Simply stated, res judicata means a matter that has been finally decided on its merits by a court of competent jurisdiction and therefore may not be pursued further by the same parties.

A synopsis of our argument

In our brief, we advance four main arguments. First, the Attorney-General should not have been joined to the case because he has no identifiable stake, legal interest or demonstrated duty to assist the Court in these proceedings. Secondly, the respondents cannot successfully rely upon the defence of res judicata with respect to the Pule case because the cause of action, issues and parties in the Petition are not the same as in Pule. Thirdly, the Petition is not an abuse of process by the petitioners since neither the issue of the alleged contravention by the First Respondent (Lungu) of Articles 52(1) and 106(3) of the Constitution nor his eligibility under Article 106(3) has ever been determined directly and conclusively by the Court. Finally, by filing his nomination paper to a returning officer supported by an affidavit stating that he is qualified for nomination as President, the First Respondent, who has twice been elected to and held the office of President of the Republic of Zambia, has contravened Article 52(1) of the Constitution and/or is not eligible for election as President in Article 106(3) of the Constitution. We briefly explain these assertions below.

The Attorney-General has been improperly joined to the case

The law establishes that anyone that wishes to join any legal proceedings (as a party) must show that he or she has an identifiable stake, legal interest and duty to assist the court effectively and completely adjudicate on all the issues in the proceedings. A person is said to have a legal interest in the proceedings only if he or she can show that they may be prejudiced or affected adversely by the judgment of the court in the proceedings concerned.

It should be noted that the Second Respondent (the Attorney-General) has been enjoined to the proceedings in his capacity as Attorney-General. The office of Attorney-General is established in terms of Article 177(1) of the Constitution and as provided in Article 177(5), the Attorney-General is ‘the chief legal adviser to the Government’ whose functions include to ‘represent the Government in civil proceedings to which the Government is a party’ (our emphasis).

In applying to be joined to the Petition as a respondent, the Attorney-General claimed that ‘it is imperative’ that, as ‘Chief Legal Adviser to the Government,’ he be enjoined to ‘the proceedings in order to represent Government interests in this matter.’ He did not explain what those ‘Government interests’ are. However, his contention is fundamentally flawed for two main reasons. First, while his constitutional mandate as ‘chief legal adviser to the Government’ includes representing the Government in civil proceedings to which the Government is a party, the Government has not been sued in these proceedings. Secondly, representing ‘Government interests’ (whatever those might be) is not a recognised basis for considering an application for joinder. There are not any Government interests at stake here because the Petition involves Edgar Chagwa Lungu as a presidential candidate of the Patriotic Front; he is not a presidential candidate of the Government, a situation not allowed or provided for by the Constitution.

There are very rare instances when a court may permit the Attorney-General to join private proceedings. These are where the litigation involves a crown (state) prerogative or raises any question of public policy on which the executive may have a view it wishes to bring to the attention of the court. However, this is not the case here: there is no prerogative or public policy question involved in the present petition.

We emphasise that the First Respondent (Mr Lungu) filed his nomination to contest the election scheduled for 12 August 2021, which is at issue in these proceedings, as a candidate of the Patriotic Front, not in his capacity as current President of Zambia. It is also unclear from the Attorney-General’s filings how the outcome of the present proceedings will affect him or the Government.

We are, of course, aware that the overriding consideration is whether it was in the interests of justice for a party to intervene in the litigation. However, we believe that there are, in the circumstances outlined above, no interests of justice to be served by allowing the Second Respondent – whose constitutionally mandated function is to act as chief legal adviser to the Government, not as to the illegality of the nomination of a presidential candidate, and to represent the Government in civil proceedings to which it is a party – to participate in these private proceedings.

The cause of action and issues in the Petition are not res judicata

In their respective answers, both respondents have raised – incorrectly, in our view – the defence of res judicata. As applied in common law jurisdictions, res judicata covers several distinct legal principles. Key amongst these principles is ‘cause of action estoppel’ (stop the cause of action) and ‘issue estoppel’ (stop the issue). Broadly speaking, a plea or defence based on cause of action estoppel, if accepted, prevents a party pursuing a claim which has already been determined by a court of competent jurisdiction in previous litigation between the same parties (or their privies).On the other hand , a plea or defence of issue estoppel, if successful, prevents a party in proceedings from contradicting a finding of fact or law that has already been determined in earlier proceedings between the same parties (or their privies), provided that the determination was central to the decision in those proceedings.
In brief, the requirements for res judicata are: (a) there must be a previous judgment by a competent court; (b) between the same parties; (c) based on the same cause of action; and
with respect to the same subject-matter (our emphasis).

In our considered view, the cause of action and issues in these proceedings are not the same as those in Pule and Kapalasa cases. Moreover, the parties to these proceedings are not the same as the parties in Pule. Neither the Petitioners nor the First Respondent were parties to Pule. Although the Second Respondent was a party to Pule, this is not sufficient for res judicata to apply: the doctrine will not apply where one of the parties is different.

It is also notable that Article 52(4) of the Constitution, based on which the Petitioners have brought the present proceedings, was not invoked in Pule as the First Respondent had not yet filed his nomination as a presidential candidate to trigger Article 52(4) under which his nomination would be challenged as in the present case. Pule was speculative in this regard and was decided speculatively without Article 52(4) coming into play as it is now.

In our view, the cause of action in these proceedings arose when the First Respondent filed his nomination paper and supporting affidavit, pursuant to Article 52(1) of the Constitution, for election to the office of President. Conversely, in Pule, there was no live controversy between the parties: The Petitioners had presented a hypothetical question (which the Court incorrectly, we respectfully submit, reformulated) for determination by the Court and, importantly, the First Respondent had not, at that time, declared his intention to stand for re-election as President by filing the prescribed declaration.

The key issue in these proceedings concerns the alleged contravention of Articles 52(1) and 106(3) of the Constitution by the First Respondent, having been twice elected and held office as President, through the act of filing his nomination paper supported by an affidavit stating that he is qualified for nomination as candidate for President in the election scheduled for 12 August 2021. Res judicata also does not apply where the prior decision is plainly wrong – as can be seen below- the Pule case was plainly decided wrongly.

The Petition is not an abuse of process by the Petitioners

In his ‘combined answer’ to the Petition , the Second Respondent has alleged that the Petition is an abuse of proceedings by the Petitioners ‘as they seek to re-litigate the eligibility of His Excellency President Edgar Chagwa Lungu to stand for the position of President in the General Elections set for 12th August 2021’ because ‘the eligibility of the current Republican President, His Excellency Edgar Chagwa Lungu, to stand in the forthcoming general elections has already been determined by this Honourable Court under cause numbers 2017/CCZ/004 (Judgment No. 60 of 2018), 2021/CCZ/0011 and 2021/CCZ/0014, respectively’. The First Respondent makes a similar assertion in his Answer. This assertion is plainly incorrect and misguided for the reasons set out below. Abuse of process refers to the improper use of a legal procedure for a malicious or perverse reason. Thus, to determine whether there is an abuse of process, the Court must consider the ‘purpose’ or ‘motive’ of the litigation. Thus, the case law indicates that an abuse of process takes place where legal proceedings are used for some purpose other than the pursuit of truth.

On that standard, there is no abuse of process by the Petitioners as contended by the respondents. First, the Petitioners are entitled in terms of Articles 2 and 52(4) of the Constitution to bring this Petition. Under Article 2, the Petitioners have the right and duty to defend the Constitution. By bringing this Petition, the Petitioners are merely exercising their constitutional right and complying with their constitutional duty to defend the Constitution.

Secondly, the Petition alleges a contravention by the First Respondent of the Constitution, in particular Articles 52(1) and 106(3) thereof. As we have shown above, these issues have never been determined by this Court (that is, the cause of action and issues in these proceedings are not res judicata). Finally, the Second Respondent has not demonstrated in what respect these proceedings are actuated by improper motive or extraneous considerations on the part of the Petitioners.

Conversely, it is in fact the Second Respondent whose intervention in these private proceedings constitutes an abuse of process. The Second Respondent’s joinder application disclosed no identifiable stake, legal interest or duty to assist the Court and he has been improperly enjoined to these proceedings. It is also plain from the Second Respondent’s Combined Answer that he is not advancing the public interest but rather the interests of the First Respondent who is a party to these proceedings in his private capacity (not as the current President of the Republic).

In our view, the Attorney-General’s participation in these private proceeding is clearly a meritless attempt to undermine the role of the Court, to prevent the Petitioners from lawfully exercising their constitutionally guaranteed rights and to prevent a determination on the merits of issues that have never been determined (or at least determined in clear and definitive terms) by the Court.

Because the Attorney-General’s participation in these proceedings appears to form a pattern of conduct where he has sought to intervene in any proceedings in which the First Respondent’s interests as a private individual are implicated, we are of the view that his conduct is a breach of his constitutional mandate as set out in Article 177 of the Constitution and, accordingly, an abuse of process. Given this pattern of conduct and to preserve the constitutional integrity of the office of the Attorney-General, we asked the Court to express its displeasure by making an appropriate personal costs order against him.

The ‘Pule’ case is incorrect, unsound and legally fictitious

In our view, the Pule case was incorrectly decided and rather than provide clarity as to what Article 106(3) means, it has created complexity and controversy as shown, for example, by the Kapalasa case. We believe the Court misdirected itself on the facts and the law in Pule for several reasons. First, the Court reformulated the question presented to it by the Petitioners without giving the applicants and respondents an opportunity to make submissions thereon. It then based its decision on the question thus reframed, and in doing so, the Court ignored the established principle that a court should restrict its decision to the questions presented by the parties. Put differently, the Court overstepped its jurisdiction.

Secondly, the Court incorrectly adopted a ‘literal’ approach to interpreting Article 106(3), rather than the ‘purposive’ approach which is the generally accepted approach to interpreting a supreme constitution like ours. A ‘purposive’ interpretation entails a focus on the ‘purpose’ (or object) of the provision in question, not primarily on ascertaining the ‘intention of the legislature’ (a notion that does not apply where the constitution, not parliament, is supreme). Ascertaining the purpose of a constitutional provision requires that the Court consider the general context including the historical underpinnings of the provision in question.

While the Court briefly outlined the historical background of the country’s constitutional development and reviewed pertinent provisions concerning presidential limits (pages 62-73 of the Pule judgment), it did not review any of the pre-enactment background material which constitute the historical underpinnings of Article 106(3), including earlier drafts, the reports of the various national constitutional review commissions, technical committees and other relevant bodies.

A ‘purposive’ interpretation of Article 106(3) focusing on the purpose of Article 106(3), rather than the ‘intention of the legislature’, and employing the complementary sources of constitutional interpretation (including the historical underpinnings of the provision) in fact indicates that the purpose of Article 106(3) is to prevent ‘oppressive rule’ or rule in perpetuity as indicated below.

Conversely, the Court’s approach resulted in an interpretation of Article 106(3) that is inconsistent with its purpose as well as the values and principles enshrined in the Constitution, notably democracy, constitutionalism, good governance, and sovereignty of the people.

Thirdly, the Court focused heavily but incorrectly on the notion of ‘two constitutional regimes’ (see pages 68 and 81-83 of the judgment). Clearly, this notion was pivotal to the Court’s conclusion that:

‘It therefore, follows that in the current case, the term served which sits astride the pre and post 2016 constitutional amendments and having looked at the intention of the Legislature as we have done, and the holistic approach we have taken in interpreting Article 106 of the Constitution in its entirety, our answer to the question that we rephrased is that the Presidential term of office that ran from 25th January, 2015 to 13th September, 2016and straddled two constitutional regimes cannot be considered as a full term.’

The notion that the first term of office served by Mr Lungu ‘straddled two constitutional regimes’ and thus required some form of transitional wording is legally fictitious and untenable. It is based, with respect, on an insufficient or incorrect understanding of the means of constitutional change and their implications. There are two main means of constitutional change: ‘replacement’ and ‘amendment.’ ‘Replacement’ formally displaces an existing constitution, changing the basic structure of the state and political regime whereas amendment modifies procedural details and policy issues in the constitution.

In our constitutional history, only two Constitutions – the Independence Constitution of 1964 and the ‘One-Party State’ Constitution of 1973 – have ever been replaced. The Constitution of 1991 (which introduced presidential term limits) has merely been amended, in 1996 and 2016, with the amendments leaving the basic structure of the state and political system intact. The 1991 Constitution remains the Constitution applicable in Zambia (albeit with amendments). It is therefore incorrect to speak of ‘two constitutional regimes.’

Fourthly, the three-year rule pertaining to the remainder of presidential service in Article 106(6) of the Constitution applies only in situations where: (i) the office of President falls vacant and the vice-president who was a running-mate and elected together with the President automatically takes over; and (ii) when an election is held because the vice-president who, as running-mate and elected together with the President, should take over to serve the remainder of the president’s term is either unwilling or unable to do so. This rule did not apply in 2015 (pre-constitutional amendment) when Mr Lungu was first elected to the office of President. Importantly, Mr Lungu did not assume the presidency 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.

In our view, the Pule decision retroactively (or in reverse) applies Article 106(3) in contravention of the principle that, unless expressly stated to be so, legislation does not apply retroactively or retrospectively. In this regard, it is important to underscore that Article 106(6) applies as from the date the Constitution of Zambia (Amendment) Act, No. 2 of 2016 came into effect, namely 5 January 2016 and has no bearing on the First Respondent’s first term of office. In effect, the Pule decision improperly ‘reverses’ and ‘resets’ the clock in favour of Mr Lungu and, in doing so, undermines the purpose of Article 106(3) and the constitutional values of democracy, constitutionalism and good governance, and for this reason also, should not only be reconsidered but should be set aside.

For the reasons outlined above, we are of the view that the Pule case is incorrect, unsound and legally fictitious. Therefore, the Constitutional Court should reconsider it – it has the power to reverse its own decisions.

By filing his nomination for election as President in the election scheduled for 12 August 2021, in circumstances where he has twice been elected to and held the office of President of the Republic, the First Respondent has contravened Article 52(1) of the Constitution and/or is not eligible for election as President under Article 106(3) of the Constitution

The Petition before the Court involves a transcendental or overriding question of constitutional law arising under Article 106(3) of the Constitution (as amended), namely whether the First Respondent, having twice held office as President of the Republic, is eligible to stand for election as President in the 12 August 2021 elections.

It is common knowledge that Mr Lungu has twice held office as President. He first held office as President when he was elected and sworn in, in 2015 and then in 2016. Consequently, his nomination violates Article 106(3) and results in an unacceptable state of constitutional affairs that the sovereign will of the people of Zambia so clearly prohibited, against the background of their experience of President Kenneth Kaunda’s 27 years in office which ended in 1991, to safeguard constitutional democracy. The originality of the 1991 Constitution, which continues as amended in 1996 and 2016 is effective: since then, no other Zambian President has held office more than twice. This Court should not reverse this historical constitutional trend.

In order to understand the purpose of Article 106(3), it is important to understand its history. Article 106 of our Constitution derives from the Twenty-Second Amendment to the United States (US) Constitution. The Amendment has two aspects. First it restricts only the re-election of an already twice-elected President, without limiting the length of time, consecutively or cumulatively, that a person may serve as President, and secondly, it limits to one election to the office of the President for any person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected.

A review of the history of the Twenty-Second Amendment reveals that it was introduced in the context of President Franklin D. Roosevelt’s unprecedented four terms of service against a convention of the constitutional limitation of presidential service. As Vice President, Roosevelt had served almost a full term after President William McKinley’s assassination in 1901 and he was re-elected in 1940 and 1944, thereby becoming the first US President to be elected to third and fourth terms. A perusal of the Congressional debates on the Amendment reveal that the purpose of the Amendment was to prevent a President from ‘perpetuating himself in office’.

It is evident from the history of the Twenty-Second Amendment to the US Constitution which informed the content of Article 106(3) of the Constitution of Zambia and from the country’s own constitutional history reflected in the reports of the various constitutional review commissions and other bodies which the Court, with respect, did not seem to consider or give due weight to in Pule, that the purpose of Article 106(3) is to safeguard democracy and constitutionalism by preventing the possibility of the emergence of ‘dictatorial’ or tyrannical rule.

The second limb of the Twenty-Second Amendment limits to one election to the office of the President for any person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected. This provision relates to a term of presidential service for a President who held office of the President, or acted as President, for more than two years of a term to which some other person was elected. A similar provision, no doubt derived from the Twenty-Second Amendment, was contained in the 1991 Constitution as amended by Constitution of Zambia (Amendment) Act, No. 18 of 1996 (prior to the 2016 Amendment).

However, the 2016 Constitutional amendment made a fundamental and significant difference to the completion of years of terms of service to which some other person was elected considering:

(a) The introduction of a running mate to the President who is constitutionally positioned to succeed the untimely departure of an incumbent President under Article 106(5), which was not the case before the 2016 constitutional amendment. Therefore, the same principle governs the position of the Vice-President in Article 111(3) that a person who has twice held the office of Vice-President shall not be selected as a running mate. Under this provision, for example, having twice held the office of Vice-President, the Republican Vice-President, Inonge Wina, would not have been eligible to be selected as running mate. Under Article 266, ‘running mate’ means a person who is selected by a presidential candidate to stand with the presidential candidate in a presidential election so that the person becomes the Vice-President if that presidential candidate is elected as President; ‘presidential election’ means an election to the office of President and includes the election of a Vice-President as a running mate to the President.

(b) Unlike the Twenty-Second Amendment which does not establish a term of years of presidential service, the term of office of a President remains five years which shall run concurrently with that of Parliament.

(c) However, and this is the difference brought about by the 2016 constitutional amendment, presidential terms of service are contingent upon the prohibition of having twice held office under Article 106(3), which makes no mention of serving an unexpired term and stands on its own.

(d) That the application of the restriction on twice having held office to both the President and Vice-President is a fundamental principle of the basic structure of the Constitution serves as a check and limitation on the number of times that a President and Vice-President can assume their offices, respectively. An interpretation to the contrary alters this basic structure which is balanced in terms of the sovereign will of the people regarding executive, legislative and judicial authority. The Court must not bend the sovereign will of the people by which they adopted and gave themselves the Constitution.

(e) The issue of succession and unexpired terms are addressed in other provisions of Article 106. Under Article 106(5)(a), when a vacancy occurs in the office of the President, the Vice-President assumes the office of President immediately, this in view of the introduction of a Vice-Presidential running mate in Article 110(1). This means, for example, that Vice-President Inonge Wina would assume the presidency immediately if a vacancy were to occur in the office of President.

(f) Article 106(5)(a) is clearly inapplicable to the First Respondent as he did not ascend to the presidency either as Vice-President or as a running mate contemplated by the 2016 constitutional amendment. The principle of a running mate who would become president when a vacancy occurred in the office of President did not exist before the 2016 constitutional amendment. It was introduced in the 2016 constitutional amendment to resolve the perennial problem of holding presidential by-elections when a vacancy occurred in the office of President.

(g) An unexpired term under the Constitution as amended is addressed by Article 106(5)(b) under which, if the Vice-President is unable for some reason to assume the office of President, a presidential by-election must be held under Article 105(8)(b). However, we submit that in the context of the introduction of a Vice-President as a running mate who would assume the presidency immediately in the event of a vacancy under Article 106(5)(a), the reference to the Vice-President who is unable for a reason to assume the office of President in Article 106(5)(b) is to a Vice-President who was a running mate under Article 110(1) and elected together with the President and who would have assumed office immediately. In that event, an election to the office of President is constitutionally justifiable and the provisions on the unexpired term of presidential service are applicable, including construing Article 106(3) in that respect as stipulated in Article 106(6)(a) and (b).

In our view, these provisions are inapplicable to construing the First Respondent’s presidential service of an unexpired term because he was neither a Vice-President nor a running mate who immediately assumed the office of President on here being a vacancy in that office following the death of President Michael Sata. Then there was not a running mate as Vice-President who was unable for a reason to assume the office of President. In any event, Article 106(5)(b) is imperative that an ensuing presidential election is subject to the requirement that the Speaker of the National Assembly shall perform executive functions pending elections. That was not the case either.

Consequently, how the First Respondent became President and whatever his term of presidential service then was is immaterial to Article 106(3) and cannot be construed correctly with respect to Article 106(6)(a) and (b) of the Constitution (as amended). What matters is that it is indisputable that he has twice held office as President. Having held office twice and serving a presidential term are not the same thing legally and do not have the same legal significance as our analysis above has shown.

The role of the Constitutional Court

As a creature of the 2016 constitutional amendment, the critical date for the Court’s existence and exercise of jurisdiction is the date of assent of the Constitution of Zambia (Amendment) Act, No. 2 of 2016, namely 5 January 2016, when it entered into force.

In our view, the Constitutional Court cannot purport to exercise jurisdiction or judicial authority in reverse and retroactively beyond 5 January over the 1991 Constitution as amended in 1996, and prior to 2016 amendment by reaching back to interpret an unexpired term under the Constitution prior to the 2016 amendment, when it did not exist, and the basis of which changed under the 2016 amendments.

The originality of the 1991 Constitution and successive amendments to it in the context of a perpetual presidency since 1964 leading to the introduction of the One-Party State in 1973 which ended in 1991, show that the people of Zambia were aware of, and guarded against, a clear and present danger to the incidence of perpetual presidents. The nomination of the First Respondent in the quest to hold office beyond two terms against the express sovereign will of the people reflected in the Constitution (as amended) presents such a clear and present danger. When faced with such situations, Supreme or Constitutional Courts must decide in favour of the greater good and the lesser evil to protect constitutional values against the abuse of constitutionalism.

The Constitutional Court faces a similar issue in that the First and Second Respondent are obliging it to interpret the Constitution in a manner that the First Respondent should hold office more than twice or more than two times or on more than two occasions in substitution of what the sovereignty of the people so clearly prohibit in Article 106(3). For the Court to acquiesce or buy into that argument would be an unconstitutional substitution of the Constitution on its part, an act that is unlawful under the preamble, Articles 1, 2, 106(3) and 118 of the Constitution inclusive, and which would ineluctably lead to the foreseeable amendment of the Constitution to perpetuate a presidency to hold office more than twice. Article 106(3) and its ancestor in the Twenty-Second Amendment were designed to pre-empt this happening. If the Court overrides Article 106(3), it would provide spacious cover for constitutional illegality, be a party to such illegality as well as bear testimony to the perpetuity and tyranny of the presidency that would unfold in Zambia for years to come, reversing the gains of constitutional democracy that the people fought hard for and made democratic gains against a presidency in perpetuity, from 1991 until now.

Conclusion

For the foregoing reasons, the Court should:

(a) Strike out the name of the Second Respondent from the proceedings

(b) Dismiss the pleas of res judicata and abuse of process

(c) Reconsider and reverse the Pule (and, by extension, Kapalasa) judgments.

(d) Grant the petition.

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