Sat, 04 Feb 2017 10:27:46 +0000
IT IS abundantly clear that President Edgar Lungu has not served two terms of office because 18 months in office cannot be deemed to be a full term in accordance with the Zambian Constitution, says Attorney General Likando Kalaluka SC.
Mr Kalaluka said it was important for anybody interpreting the eligibility clause to consider Article 106 (6) of the Republican Constitution because the period from his first election of 20th January 2015 to 11th August 2016 could not be called a term as it was way below the required three years.
This is contained in the Respondent’s skeleton arguments filed in the Constitutional Court Registry in a matter where five opposition political parties have sought the Court’s interpretation of the eligibility clause in relation to President Lungu.
The four opposition parties include Christian Democratic Party president Daniel Pule, Zambia Republican Party’s Wright Musona, Pastor Peter Chanda of the New Congress Party and Robert Mwanza president of Citizens Democratic Party.
The four petitioned the Constitutional Court for an interpretation of the law on the eligibility of president Lungu for the 2021 general elections as they believed that he would have only served one full term and the 18 months from late president Michael Sata’s term.
“We contend that Article 106(6) makes it clear that for purposes of Article 106(3), serving a term as President for period not exceeding three years is not deemed to be a term.
“Therefore, when considering the eligibility of the current Republican President for election as President in 2021 under Article 106 (3), regard must be had to Article 106 (6) which clarifies what constitutes a term.
“Applying the foregoing constitutional provisions to the current Republican President’s election on 20th January, 2015 and 11th August, 2016, it is abundantly clear that the term served by the current Republican President following the election of 20th January, 2015 cannot be deemed to be a term as at the time he assumed office, less than 3 years remained before the date of the next general election,” he submitted.
Mr Kalaluka explained that on account that President Lungu only served 18 months, makes him eligible for the next election as he did not meet the required period of time which could be referred to as a term.
He said Article 106(6) specifically discusses a vacancy in the office of the President and the Vice President immediately assumes power, and if unable to, where the Speaker instead performs executive functions, but that it would be flawed to place under regard to procedural technicalities contrary to Article 118(2) (c) of the Constitution.
He charged that to argue that 2015 presidential election does not fall within Article 106(5) (b) on account that the Speaker did not perform executive duties would be a technicality against the fact that the incumbent passed away.
The Attorney General insists that it was irrelevant as to who acted in the period during the vacancy prior to the 2015 elections, but that the “2015 election substantially falls within Article 106(5) (b) of the Constitution”.
“Alternatively, it is our submission that the Honourable Court has to interpret the provisions of Article 106(5) in a broad and conclusive manner as opposed to a narrow and restrictive manner in order to give effective to the objectives of the Constitution as a whole,” he said.
“We submit that the purpose of Article 106(6) is to clarify what period may be deemed to be a term of office of president,” he submitted.
Mr Kalaluka has sought the interpretation from the court of Article 106(5) (9) in relation to other constitutional provisions which he said must be addressed by a purposive interpretation not only of the said Article but of the Constitution as a whole to determine the intention of the legislature on the matter.
“It is our submission that regard to the context and historical origins of Articles 106 (3), 106 (5) and 106 (6) will show that prior to the Constitutional amendments of 5th January, 2016, there was in force the now repeated provisions of Article 35 (2) which read:
“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,” he submitted.
The Attorney General has since submitted that as justice dictates, the court gives effective objectives of Article 106(3) and (6) and 118(2) for purposive interpretation which takes account the foregoing, and arrives at the inescapable position that the current President is eligible to stand as Presidential candidate in the year 2021.
