2021 and the Edgar Lungu Candidacy

Fri, 20 Jan 2017 12:23:00 +0000

…Lungu can stand

BY SUNDAY CHANDA

In order to correctly put the 2021 debate into proper context, one must understand that article 106 (6) when talking about a term of office clearly says FOR PURPOSES of Article 106 (3). It is strange that we have commentators who seek to divorce Article 106 (6) from Article 106 (3). Unless one puts this debate in its proper context, it’s a case of wrong tool of analysis and especially for those of our colleagues who are commenting with a predetermined conclusion simply because they disapprove of President Edgar Lungu’s candidature for no apparent reason.

Under 2016, he has also been elected once and this is the current law that applies to his Presidency and not the 1996 law. The 1996 provision cannot survive the 2016 amendment! Lets agree that Constitutional provisions must be given broader and inclusive interpretation and as such, when Article 106(6)b says “or a person is elected to the office of President as a result of an election held in accordance with clause 5b”…this caters for ECL because 106(5)b talks about “…a presidential election bring held within…days of the occurrence of the vacancy”

The literal construction therefore of *”twice been elected”* (to insinuate eighteen (18) months and five (5) years in this case ) would indeed be absurdity and operate unfairly against a person who assumed the office of President following a *”Presidential by-election”* when the incumbent’s term was nearing expiration as was the case with President Lungu succeeding the late President Sata. Adopting the broader interpretation will lead to an inescapable position that ECL was elected in a presidential election following a vacancy.

We cannot at this stage resort to the 1996 constitutional provision because it was repealed and it is no longer law as of today. The answer should therefore be found in the current constitution, and the guidance of this constitution is that the person serving as president for less than 3 years cannot be said to have served a term. If we refuse to bring the 2015 election within Article 106(5), then we impliedly are saying that the 2015 election is not recognised and as such ECL has only been elected once going by the current constitution. Let me submit that the January 2015 election under which President Lungu was first elected is mutatis mutandis an election under art 106(5) (b) of the constitution

Article 35 (2) of the 1996 Amendment under which President Lungu was first elected provided that:

“Notwithstanding anything to the contrary contained in this Constitution or any other law a person who has twice been elected as President shall not be eligible for re-election to that office.”

The 2016 Amendment in Article 106 (3) also says:

“A person who has twice held office as President is not eligible for election as President.”

However, Article 106 (6) provides as follows:

“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 argument by Elias Munshya to the effect that one who was once elected under the 1996 Amendment is not eligible and as such President Lungu’s 2016 election was his second election; making it his last is legally incorect.

The 2016 provisions would seem not to be applicable to President Lungu. This is because there exists a rebuttable presumption or general rule that Parliament does not intend to pass legislation with retrospective or retroactive effect.

Black’s Law Dictionary defines a retroactive law as: “A legislative Act that looks backward or contemplates the past, affecting acts or facts that existed  before the Act came into effect.” In as far as criminal legislation is concerned, in Zambia the principle actually has entrenched Constitutional foundation (Article 18 (4)).

Nature of retrospectivity (retroactivity).

“In applying the principles relating to  retrospectivity it is important correctly to analyse whether or not the relevant  application of the enactment in question would truly be retrospective. Confusion often arises on this score. In particular an application is not retrospective where the enactment is applied at a time after its commencement to a state of affairs subsisting at that time, even though that state of affairs came into  existence before commencement.” (Bennion, 1986).

Similarly, Hartley observes:

“Retroactivity’ is a term often used by  lawyers but rarely defined. On analysis  it soon becomes apparent, moreover, that it is used to cover at least two distinct concepts. The first, which may be called ‘true retroactivity,’ consists in the application of a new rule of law to an act or transaction which was completed before the rule was promulgated. The second concept, which will be referred to as ‘quasi-retroactivity,’ occurs when a new rule of law is applied to an act or transaction in the process of completion…The foundation of these concepts is the distinction between completed and pending transactions…”

However, the rule against retrospective legislation is but a general rule with important exceptions. These include the following:

1. Where Parliament expressly makes a law which is retrospective. This does not include penal statutes.

In Hewitt v Lewis (1986) it was held that where an amending enactment is  expressed to be retrospective it will  apply to pending actions, including  appeals from decisions taken before  the passing of the amending Act.

2. The second exception is with regard to procedural or adjective law.

It is well established that the rule against retrospective legislation is not applicable to procedural or adjective law.

Adjective law has been defined as: “The body of rules governing procedure and practice.” (Black’s Law Dictionary).

Bryant notes that: “The body of law in a State consists of two parts, substantive and adjective law. The former prescribes those rules of civil conduct which declare the rights and duties of all who are subject to the law. The latter relates to the remedial agencies and procedure by which rights are maintained, their invasion redressed, and the methods by which such results are accomplished in judicial tribunals.” (Bryant, 1899).

Similarly, in Bonar Travel Limited v Susa (1994) the Supreme Court stated that: “…An adjective statute is one which lays down a procedure of how a litigant or prospective litigant should go about seeking a redress before a tribunal or how to exercise his right of appeal…”

The Supreme Court in Moobola v Muwezwa (1991) asserted that: “…In any case, the presumption against  retrospection does not apply to  legislation dealing with matters of  procedure and provisions introducing  new remedies, as opposed to new  substantive rights, have generally been classed with provisions as to procedure so that they generally apply both to proceedings subsequently commenced in respect of existing cause of action and to existing proceedings.”

Lastly, in Barber v Pigden (1937) it was held that: “…It is well recognised that the canon against retrospective interpretation does not apply to a statute dealing with adjective law, i.e., procedure, and I think that a statute abolishing old legal fictions is so nearly akin to a procedural statute that the canon can have little, if any, application…”

The above exposition begs the question as to whether or not the provisions under the 2016 Amendment to the effect that any term served below three years is not a term are procedural or adjective. In view of the above exposition of what procedural or adjective law is, I opine that the provisions in question are not procedural or adjective in nature. They are simply substantive provisions.

And even if they were procedural it does not always follow that the rule against retrospective legislation will not hold. This is because Section 14 (3) (b) & (e) of the Interpretation & General Provisions Act, Chapter 2 of the Laws of Zambia stipulates that:

“14. (3) Where a written law repeals in  whole or in part any other written law, the repeal shall not-

(b) affect the previous operation of  any written law so repealed or anything duly done or suffered under any written law so repealed;

(e) affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceedings, or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing written law had not been made.”

An analogy may be drawn from the case in which the former Director of Public Prosecutions (DPP) Mr Nchito unsuccessfully attempted to rely on a new procedure of removing a DPP which makes reference to the Judicial Complaints Commission under the 2016 Amendment. Since that Amendment was purely procedural it was open to argue that the rule against retrospectivity was not applicable to it & Mr Nchito would have to be heard by the Judicial Complaints Commission despite such procedure not having existed when he was removed from office. But Section 14 of the Interpretation & General Provisions Act cited above would seem to negate the above contention & the latest procedure under the 2016 Amendment could not affect the Tribunal that was appointed long before that 2016 Procedure existed. The correct law which applied to the Tribunal & everything it did was Article 58 of the Constitution of Zambia as amended in 1996. That was the relevant law under which the Tribunal was appointed. No reference under that law is made to the Judicial Complaints Commission Mr Nchito was later insisting on.

It is clear from the above that legislation being merely procedural or adjective it does not always follow that the rule against retrospective legislation will not hold. It can still perfectly hold.

Lastly, the following question requires careful consideration: Does the 2016 amendment seek to abolish any old legal fictions with regard to a president’s tenure for the rule against retrospective legislation not to hold? This question involves difficult points of law. A legal fiction is defined as: “An assumption that something is true even though it may be untrue, made especially in judicial reasoning to alter how a legal rule operates; specifically, a device by which a legal rule or institution is diverted from its original purpose to accomplish indirectly some other object.” (Black’s Law Dictionary).

Article 35 (1) of the 1996 Amendment provided that: “Subject to clauses (2) and (4) every President shall hold office for a period of five years.”

As noted above, Article 35 (2) of the 1996 Amendment under which President Lungu was first elected provided that:

“Notwithstanding anything to the contrary contained in this Constitution or any other law a person who has twice been elected as President shall not be eligible for re-election to that office.”

A President who was elected in a general election had (has) a five-year tenure of office. A President who was elected to fill-up a vacancy did not have a five-year tenure of office. But a legal fiction would seem to have emerged that once a person was elected to fill-up a vacancy, the unexpired term of the predecessor would be that of the successor regardless of how short such unexpired term was. By this legal fiction, the successor would simply have used-up one of his two chances at the presidency if he so elected to fill-up a vacancy left by the predecessor. This is the combined effect of the two provisions of the 1996 amendment cited above. This is a legal fiction than an express rule of law.

It follows therefore that the 2016 amendment sought to abolish the above legal fiction. In this regard it should follow that the presumption against the retrospective effect of the 2016 amendment is rebutted and President Lungu may be eligible to recontest as President in 2021. Between now and 2021, President Lungu’s focus should be to deliver development to all parts of Zambia and ensure the creation of a better life for all Zambians. No law will stop him when the time comes!