By Henry Kyambalesa
In this article, I wish to provide a layman’s view relating to Dr. Edgar Changwa Lungu’s eligibility to contest the forthcoming presidential election scheduled to be held on August 12, 2021. I have addressed the issue in three sections. Firstly, I have provided a bird’s-eye view of issues relating to the 2015 presidential by-election.
Secondly, I have provided a summary of important issues relating to the 2016 presidential election. And, in the last section, I have rendered my conclusion to the highly emotive and intricate debate.
The 2015 By-Election:
President Edgar C. Lungu has been the President of Zambia since January 25, 2015 after having won the presidential by-election held on January 20, 2015. The by-election was designed to elect the country’s president who would serve out the remainder of the first term of office of the late President Michael C. Sata, as provided for in Article 38 of the country’s 1996 Constitution.
President Sata was elected on September 20, 2011 to serve a 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.
Article 38 (Clause 1) of the Constitution provided for the following: “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.”
The 2015 presidential by-election was held under the provisions of the 1996 Constitution adopted on May 28, 1996, Article 35 (Clause 2) of which states as follows: “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 Elections:
President Lungu was elected to serve the first and current five-year presidential term of office during the 2016 Presidential, Parliamentary and Local Government Elections which were held on August 11, 2016 under the provisions of the 2016 Constitution assented to by Parliament on January 5, 2016. Article 106 (Clause 3) of the newly enacted Constitution states thus: “A person who has twice held office as President is not eligible for election as President.”
He was sworn in as the country’s newly elected president on September 13, 2016 upon winning the presidential race held on August 11, 2016.
Amendments to constitutions and/or newly enacted laws or pieces of legislation are, by and large, not supposed to be retroactively applied, enforced, or imposed on individuals, groups of individuals and/or institutions. Rather, they are supposed to be applied, enforced, or imposed on individuals, groups of individuals and/or institutions after they are assented to by the legislative organs of local and/or national governments.
In other words, amendments to constitutions and/or newly enacted laws or pieces of legislation void the validity and relevance of previous and/or related constitutions and pieces of legislation. This is apparently one of the most important tenets or principles in jurisprudence.
Therefore, Article 106 (Clause 3) of Act No. 2 of 2016 of the Constitution of Zambia that precludes citizens who have twice held office as President from the presidential race applies to those who will have served twice as the country’s president after January 5, 2016—the date when the amendments relating to the Tenure of Office of the Republican President were made.
As such, it does not apply to Dr. Edgar C. Lungu, who served the country as president under the provisions of the 1996 Constitution between January 25, 2015 and August 11, 2016 to complete the remainder of President Sata’s term of office and is currently serving his first five-year presidential term of office that started on September 13, 2016—the day of his inauguration—under the provisions of the 2016 Constitution.
I may be wrong in reaching such a conclusion, but be that as it may, I hope I have succeeded in provoking further debate on an issue that has continued to confound so many of my fellow citizens.