Zambia: Apparent Manipulation of the Constitution By Henry Kyambalesa*

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Henry Kyambalesa

This article is designed to revisit my most recent one entitled “Zambia: President Lungu’s Eligibility to Stand in 2021.” It is aimed at highlighting the apparent inclination by the ruling political party to make an amendment to Article 35(2) of the 1996 Constitution of Zambia, the focus of which follows, in order to benefit the incumbent President, Dr. Edgar C. Lungu:

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“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.”

For the purposes of this article, the most important word in the preceding Article is “elected.”

President Lungu was first elected in a presidential by-election held on January 20, 2015 to serve out the remainder of the first term of office of the late President Michael C. Sata as provided for in Clause 1 of Article 38 of Act No. 18 of 1996 of the Constitution of Zambia adopted on May 28, 1996 as follows:

“If the office of the President becomes vacant by reason of [the incumbent’s] … death or resignation or by reason of his ceasing to hold office by virtue of Article 36 [due to physical or mental incapacity)], Article 37 [upon being impeached] or Article 88 [upon dissolution of the National Assembly], an election to the office of President shall be held in accordance with Article 34 [concerning the Election of the President] within ninety days from the date of the office becoming vacant.”

President Sata was elected on September 20, 2011 to serve the first five-year presidential term of office, but passed away on October 28, 2014. His first term of office was expected to end in 2016 following the Presidential, Parliamentary and Local Government Elections that were supposed to be held in September during the same year.

To reiterate, President Lungu was elected to serve the current five-year presidential term of office during t­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­he 2016 general elections which were held on August 11, 2016 under the provisions of the 2016 Constitution.

Apparently, Act No. 2 of 2016 of the Constitution of Zambia adopted on January 5, 2016 was deliberately and skilfully designed to circumvent the terms of Article 35 (2) of the Constitution of Zambia Act No. 18 of 1996 that would have ended President Lungu’s eligibility to seek the presidency by August 11, 2016 when the next general elections were held, because he would have been “elected” twice by then if the 1996 Constitution had continued to be in force.

Article 106 of the 2016 Constitution includes the following Clauses:

(3) A person who has twice held office as President is not eligible for election as President.

(5) When a vacancy occurs in the office of the President …

(a) The Vice-President shall immediately assume the office of President; or

(b) If the Vice-President is unable for a reason to assume the office of President, the Speaker shall perform the executive functions … and a presidential election shall be held within sixty days after the occurrence of the vacancy.

(6) 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 [more than] 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.

What is the rationale or justification for the three years cited in Clause 6(a) and Clause 6(b) above? Why not one year or one-and-half years, for example? Would it be unreasonable to conclude that the three years were deliberately “chosen” to absolve Dr. Lungu from the one-year-and-eight months he was initially elected to serve out the remainder of President Sata’s term of office?

The desire to manipulate the Republican Constitution to suit the interests of the Patriotic Front (PF) was recently expressed by a senior member of the party, Hon. Brian M. Mundubile, who is Mporokoso PF MP and the government’s Chief Whip in Parliament. Addressing PF senior members at the party’s Secretariat, he disclosed that the party will again allow President Lungu to run for a fourth presidential term of office in 2026 should he win the presidential race later this year.

He is quoted as having said the following: “Our main focus now is just to ensure we have enough MPs from 2021 to 2026 to enable us change the Constitution to allow President Lungu to … [contest the 2026 presidential election].” (“President Lungu Will Be Eligible to Stand in 2026 – Mundubile,” Zambian Observer:

https://www.zambianobserver.com/, January 1, 2021.)

Such a scheme or stratagem should render support to the conclusion that the Patriotic Front must have initiated and championed efforts to amend Article 35(2) of the 1996 Constitution of Zambia in order to benefit the incumbent President, Dr. Edgar C. Lungu.

And, for all the good reasons, such reckless, insensitive and shameful rhetoric from any of our political leaders should be condemned by all citizens who value democracy, the rule of law and national unity.

Constitutional provisos in our country’s constitutions which have required the President to appoint government ministers from elected Members of Parliament are partly to blame for the conundrum we are currently dealing with regarding the incumbent president’s eligibility to contest the 2021 elections.

In the mind of a bystander, the provisos compel the ministers to introduce and/or rubberstamp Parliamentary bills which safeguard the desires and interests of the incumbent president and his or her political party.

To digress somewhat, the provisos are also partly and ingeniously aimed at according greater control of the legislative arm of the government by the Republican president through ministers, and protecting the Republican president from impeachment.

In 2005, for example, McDonald Chipenzi quoted Ms. Mutale Nalumango as having said that the government rejected the recommendation to appoint ministers from outside Parliament, saying doing so would put the President in a precarious position because he or she would have no control over Parliament and, in the case of an impeachment motion, he or she would be vulnerable. (McDonald Chipenzi, “Government Rejects Recommendation by ERTC to Reduce Voting Age,” The Post Online [defunct], February 26, 2005.)

In all, it is highly improbable that the concurrence of the drafting and tabling of the Parliamentary Bill that lead to the adoption of Act No. 2 of 2016 of the Constitution on January 5, 2016 and the then imminent end to Dr. Lungu’s presidency by August 11, 2016 was merely a coincidence.

If the citizenry had realised early on that the passage of Act No. 2 of 2016 of the Constitution of Zambia was going to extend Dr. Lungu’s eligibility to contest the 2021 presidential election, civil society and opposition Members of Parliament would have made enough noise to prevent the adoption of the Act.

It is now too late, unfortunately; it is done! It is fait accompli! Zachitika! Chakwaniritsidwa! Nacitika! Meenda atika tayoleki!

*Henry Kyambalesa is a retired Zambian academic currently and temporarily residing in the City and County of Denver in Colorado, USA.

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