• Wed. Jun 16th, 2021

ELIGIBILITY IN LAYMAN’S LANGUAGE…(Lengthy piece but worth the read).The Con-Court popularly so called is set up by the Supreme Law


May 6, 2021

ELIGIBILITY IN LAYMAN’S LANGUAGE…(Lengthy piece but worth the read).The Con-Court popularly so called is set up by the Supreme Law of the land by which every Zambian Citizen is subject to. It has the final say on explaining what the Constitution of Zambia says. There is a very big responsibility for the Con-Court to explain to the people of Zambia on matters that affect the people’s participation in Democracy eg elections and contests after election. The Con-Court is responsible for the protection of the Constitution by ensuring that no one says to the Zambian people anything contrary or different from what the Supreme Law of the land says.Therefore, if someone tells the Zambian people that, “according to the Supreme Law, the man you participated in bringing into State House by voting for him cannot recontest”, the Con-Court must explain to the Zambian people what the Constitution truly says.

The Zambian people therefore cannot listen to and agree with any such person without and unless the Con-Court has explained. What the Con-Court explains is the CORRECT position and final in the discussion.Only the Con-Court as provided under Article 128 has the responsibility of:i) Explaining how to understand what the Constitution says and to explain the meaning of the sections (called Articles) of the Constitution.ii) Checking, assessing, and dealing with any matter in opposition to or in conflict with the sections (Articles) of the Constitution of the republic of Zambia.iii) Dealing with matters relating to the Presidency, Vice Presidency or the election of a President of the Republic of Zambia.iv) Dealing with election petition appeals of Members of Parliament and Ward Councilors.The Con-Court in dealing with explaining the meaning of sections (Articles) shall not personalize or target any individual but shall give a general explanation that shall be binding on every citizen or individuals involved and ultimately for posterity (future generation). The Con-Courts decisions must Stand the test of time (be the last decision or be the dominant or popular decision for a long time).This approach by the Con-Court against targeting or preferring an individual is one of the examples of the protection of fairness and equality under the Republican Constitution for all the Zambian people and protects the citizens participation in national affairs. It is so cardinal that other Courts in the Republic of Zambia have taken a similar approach in explaining provisions of the Constitution with targeting or isolating a single individual.The High Court for example in explaining the meaning of the much debated grade 12 clause did not look at Sonile Zulu’s situation but generally explained the meaning of the grade 12 clause so that All citizens affected by it in the future and generations to come would not be unfairly prevented from participating in National activities that are the right of the Zambian people. Here we can say that the Supreme law has been fairly applied to stand the test of time and to finality.The Con-Court is therefore managed by Zambian men and women skilled in the understanding of the Laws of Zambia with the drive of ensuring that every citizen participates in the Democracy of Zambia. They have Zambia at heart and are not focused on an individual or driven by perception. They are 7 in number so that no one Judge can prevail his or her views on the others the outcome is that their decisions are very well researched and thoroughly thought through.In exercise of the Con-Courts important responsibilities, a debate arose, Zambians began to debate amongst themselves and sought to convince each other. Infact some Zambians imposed themselves and portrayed themselves as Constitutional experts. The debate revolved around the eligibility of President Dr Edgar Chagwa Lungu’s candidature to contest the 2021 Presidential elections. As the debate raged on an awareness grew supported by Article 43(2)a that it was a duty of any Zambian to acquire basic understanding of the Constitution and to promote its ideals and objectives.The only way of satisfying this duty is by the Zambian people going to the Con-Court for an authoritative explanation or for an explanation that people can trust as being accurate and true. Therefore the issue could only be referred to the Con-Court for a determination by a competent Court empowered with authority to bring the issue to finality, a Court that would provide a FINAL and CONCLUSIVE answer to the debate on the eligibility of the incumbent.The Con-Court answered the question of eligibility by explaining Article 106 of the Constitution. This is the provision in the Constitution of Zambia that explains how long the presidency should be and the total years of the duration of the presidency.The Final decision of Con-Court is that is that President Lungu has only held office once and is thereby eligible for the next term. 2. QUESTIONS FOR CONSIDERATION BEFORE THE COURTBy amended Originating Summons, the Application presented the following questions before the court:1. Whether his excellency President Edgar Chagwa Lungu will have served two full terms for purposes Article 106(3) as read with Article 106 (6) of the Constitution of Zambia at the expiry of his current term.2. Whether, as a matter of the Constitutional law of the republic of Zambia his excellency President Edgar Chagwa Lungu is eligible for election as President for another 5 year term following his current term of office which commenced on the 13th September 2016.The main issue is whether the Constitutional Court’s decision to rephrase the question presented to it by the Applicants failed to address the issue of the eligibility of President Edgar Lungu.The Court highlighted what authority it used in rephrasing the question put to it by the Applicants. The Court stated at page J51:“Before we proceed to consider the question posed above, we note that although the Applicants argued in their submissions that this matter has been brought pursuant to Article 128 (1) (a), which gives this Court jurisdiction to interpret constitutional provisions, the manner the above question has been couched personalizes the issue in that it targets the incumbent President as an individual. We do not encourage this trend because the framing of the questions for this Court’s interpretation of constitutional provisions should not target any individual as it is meant for general application as the interpretation is binding on every person in the Republic.”The Court then rephrased the question as follows:”Whether in terms of Article 106(3) and (6) a presidential term of office that ran from 25th January 2015 to 13th September 2016 straddled two Constitutional regimes can or should be considered as a full term?From the above, it can be seen that the court was indicating that the parties did not have a dispute between them which required determination by the court. If this was the case, the appropriate avenue should have been to bring the matter pursuant to Article 128(1) (b) (c) (d) or (e) and 0rder 4 rule 1 and 2 of the Constitutional Court Rules. Article 128 provides that:“128. (1) Subject to Article 28, the Constitutional Court has original and final jurisdiction to hear— (a) a matter relating to the interpretation of this Constitution; (b) a matter relating to a violation or contravention of this Constitution;(c) a matter relating to the President, Vice-President or an election of a President; (d) appeals relating to election of Members of Parliament and councillors; and (e) whether or not a matter falls within the jurisdiction of the Constitutional Court.”Order 4 rule 1 and 2 provide:“1. (1) except as otherwise provided in the Constitution, the Act and these Rules, all matters under the Act brought before the Court shall be commenced by a petition in Form J set out in the Schedule.(2) A petition shall disclose- (a) The petitioner’s name and address; (b) The facts relied upon;(c) The constitutional provision allegedly violated; and(d) The relief sought by the petitioner.(3) A petition shall be signed by the petitioner or the petitioner’s advocate, (4) A petition shall be filed with an affidavit verifying facts.2. (1) The following matters shall be commenced by originating notice of motion:(a) A matter relating to the Republican President or Republican Vice. President, other than the nomination or election of the Republican President or Republican Vice President; and (b) An application to review a decision of the Electoral Commission of Zambia in the delimitation of constituencies and wards.(2) A matter relating to the interpretation of the Constitution shall be commenced by originating summons.Therefore, the court was on firm ground in electing to rephrase the question brought before it because the court was duty bound to bring the matters before it into substantial conformity with the originating process chosen by the Applicants and the spirit of what the Applicants sought from the court. The court lacked the jurisdiction to proceed to answer the question as originally phrased by the Applicants. This is evidenced by the words of the court at page J51:“We do not encourage this trend because the framing of the questions for this Court’s ‘interpretation of constitutional provisions’ should not target any individual as it is meant for general application as the interpretation is binding on every person in the Republic.”The only thing the court was called on to do was to interpret Article 106 of the Constitution. This is evidenced by the Applicants reliance on Article 128 and commecing the matter by way of Originating Summons. Thus a change in the guiding question the court selected to help achieve this aim has no bearing on the conclusions made by the court. The only question that arises is whether the court was successful in interpreting Article 106.In light of the above, the final question that needs to be addressed is whether the results of the court’s interpretation of Article 106 make President Edgar Lungu Eligible to stand in the 2021 elections. The answer to this question is in the affirmative. This is because the court refused to interpret Article 106 (3) in isolation. The court stated that:“It follows that the sub-articles in Article 106 cannot be isolated from each other in interpreting the article. As we have already stated above, an interpretation of a constitutional provision that isolates the provisions touching on the same subject is faulty.”Furthermore, the court deduced that the act of “holding office twice” was the same as “serving two terms” as far as the current Constitutional provisions are concerned. In relation to President Lungu, the court proceeded to define a term of office in relation to Article 106 as a whole. The court concluded that a term is 5 years or 3 years or more. The court further said the period served by President Lungu between 2015 and 2016 is not a term. The implication is that according to the Current Constitutional provisions and the Constitutional Court of Zambia, President Lungu has only held office once.3. SUMMARY OF THE BACKGROUND AND POST JUDGMENT DEBATE (POLITICAL ANGLE) TO DATEThis matter was commenced in the year 2017 and Judgment delivered in December 2018. It is worthy to note that the action for interpretation was commenced by civil society members against the Attorney General but credit must be given to the Constitutional Court which allowed key stakeholders namely the Patriotic Front, the Law Association of Zambia and the United Party for National Development to join the proceedings in order to have an all-inclusive Judgment characterized by arguments from all critical players in the political sphere.All the parties were represented by senior lawyers in the case and it was legitimately expected that a reasoned Judgment of the ConCourt would settle this matter.Despite the Court spending time Analyzing the submissions of all the parties and rendering a Judgment ,the post decision stage of this case has now taken a political twist with renewed energy from a Lawyer who participated in the case in the guise of representing a professional body (LAZ) only to be revealed as a hired mercenary paid to ensure that President Lungu is not on the 2021 Ballot paper whether by crook or hook.This scheme of resisting a judgment duly handed down by a court of competent jurisdiction was exposed when Dr. John Sangwa SC publicly ridiculed the ConCourt labeling them incompetent just because his arguments to bar President Lungu from contesting the upcoming elections was dismissed by the ConCourt.Dr. Sangwa and his recently recruited surrogate Kelvin Bwalya Fube a lawyer who until recently was an active member of the Patriotic Front have gone on a public campaign to seek a social media rehearing of the case of the eligibility of the president despite the ConCourt holding as follows:“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 have rephrased is that the Presidential term of office that ran from 25th January, 2015 to 13th September, 2016 and straddled two constitutional regimes cannot be considered as a full term.”It should be noted that Dr. Sangwa in his attacks on the ConCourt and the judiciary generally, attracted public attention designed to arm his masters with a euphoric movement designed to create disdain against president Lungu when he alleged that the Judges constituted by the Government are biased because they were bribed by the president in being offered and accepting jobs they were not qualified to hold.The Law Association of Zambia and other key stakeholders quicklyraised red flagson the unbecoming conduct of Dr. Sangwa which is conduct that is unethical and contemptuous to say the least. It is strange how the same Dr. Sangwa accepted the decision of the ConCourt when it sustained his argument that Ministers must refund the salaries they were paid by the treasury during the period when parliament had been dissolved and they continued executing their functions. Clearly this is a case of a Lawyer who only argues against or for a particular issue when it personally suits him and his paymasters.The Judiciary swiftly reacted on the 13th day of March 2020 and issued a directive stripping Dr. Sangwa of his right of audience before all the Courts in the country pending a disciplinary hearing by the Legal Practitioners’ Committee of the Law Association of Zambia.This directive was invoked pursuant to the Courts inherent jurisdiction to discipline Lawyers which power is also backed by the provisions of the Legal Practitioners Act.It is important to note that Dr.Sangwa’s arguments in the ConCourt are no different from those deployed by him in his diabolical partnership with the UPND to seek to bar President Lungu from recontesting the presidency as evidenced from his recent robust media campaign that has been shared by the opposition at various fora.Furthermore, Dr.Sangwa’s utterances have been repeated by the UPND in its chorus that President Lungu is not eligible even in Parliament. This nexus of a collaborated effort anchored on a scheme to bar president Lungu reveals the fact this matter is no longer a legal issue but a calculated political maneuver to ensure that the incumbent is perceived to be running for the presidency illegally notwithstanding a clear and unambiguous decision of the ConCourt.In fact the ConCourt took time to consider the submissions of Mr Sangwa acting for LAZ which were parroted by the UPND in reaching its decision to hold as follows:“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 have rephrased is that the Presidential term of office that ran from 25th January, 2015 to 13th September, 2016 and straddled two constitutional regimes cannot be considered as a full term.”It is an entrenched principle of law that Courts and indeed litigants are bound by precedents and decisions that are reached after a matter is determined on the merits a fact that both Sangwa and KBF would appreciate if the looked through the spectacles of objectivity. Stare decis obligates courts to follow historical cases when making a ruling on a similar case. Simply put, it binds courts to follow legal precedents set by previous decisions. Stare decisis is a Latin term meaning “to stand by that which is decided.”In the case of Kasote v The People (1977) Z.R. 75, the Zambian Supreme Court guided that this Court not only affirmed the importance of the principle of stare decisis to a hierarchical system of Court (whereby lower Courts are bound to follow the latest of any superior Courts decision on a point) but also affirmed that being the final Court in Zambia this Court adopts the practice of the House of Lords in England concerning previous decisions of its own and will decide first whether in its view the previous case was wrongly decided and, secondly, if so, whether there is a sufficiently strong reason to decline to follow it. This was also affirmed in the case of Match Corporation Limited and Development Bank of Zambia and the Attorney General (S.C.Z. Judgment No. 3 of 1999).SO WHAT EXACTLY IS GOING ON?Dr. Sangwa tendered a veiled apology to the Chief Justice and the Judiciary leading to his restoration to appear in the courts on or about the…2020 but has continued to fight a decision of the constitutional court by muddying the waters of his self created debate with confusing arguments designed to create narrative that the incumbent does not qualify to be on the ballot.What is strange to note is that why doesn’t Dr. Sangwa refer us to the Judgment of the Court where it was held that president Lungu is not eligible when he is leading his onslaught?If Dr. Sangwa and his sponsors are truly and genuinely aggrieved why don’t they invoke a challenge in the Courts of law for this already determined matter to be re-litigated upon especially that they profess to have a strong case?To sum it up and bring the matter to rest it is imperative to restate the ratio decidendi of the ConCourt at page 83J of the judgment when it held that premised on the provisions of the current constitutional framework Zambia can be ruled by one individual for a period of almost 14 years if he is found in circumstances as those the incumbent has found himself in. The ConCourt had this to say:Article 106 (6) thus presents a novel situation, providing that a person will be deemed not to have served a full term of office as Prsident if at the time he or she assumes office, less than 3 years remain before the date of the next general elections. The intention of the Legislature as shown from the import of Article 106 is that a person can serve only two five year terms amounting to 10 years. However, with the enactment of Article 106 (6) two other scenarios now obtain. Under Article 106 (6) (a), it is possible that a person can serve for a period of less than 10 years, being one term of at least 3 years and another term of 5 years and these will count as two full terms. The converse is also true under Article 106 (6) (b) where it is now possible for one to occupy the office of President for a period which is less than a full term in addition to two full terms of office. Meaning that a President can be in the office for a total of almost 13 years. We have decided to add this for clarity. (Page J78)Our ultimate challenge to those who hold a different and conflicting view from that of the Court of finality on constitutional matters in Zambia is why not issue process now than to argue the matter in the Courts of biased political perceptions like social media.Litigation was designed to end after a reasoned decision has been delivered by the courts. If any person is aggrieved by the decisions of the ConCourt in Zambia the law permits them to commence a fresh action while assuming the risk of being labeled a busy body or a vexatious litigant as the case appears to be for Mr Sangwa who is seeking to re-litigate over a settled issue.This raging debate which has been accelerated by an artificial euphoria is a mere political gimmick that has been hatched to create a perception against President Lungu by a political grouping that recognizes that it cannot win elections as long as the incumbent and the PF are on the ballot papers a fact that has been proven in the past three elections.

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