ConCourt rescues constitution from Lungu rape

THE Constitutional Court has risen to the occasion to rescue the Republican Constitution from being raped by Edgar Lungu through a landmark judgment that bars the former president from participating in future elections, having exhausted all his chances.

Lungu, who held office twice after being elected in 2015 and 2016, breached the constitutional provision that limits an individual’s presidential terms and contested the 2021 election, which he lost by over a million votes.

He had been gunning to contest the 2026 election when Michelo Chizombe, a patriotic student leader, brought the matter to the Constitutional Court questioning whether he was qualified.

In this matter, Chizombe wanted the Court to declare that Lungu’s participation in the previous election was unconstitutional.

Chizombe cited Lungu, the Electoral Commission of Zambia and the Attorney General as respondents arguing that the self-annointed top notch lawyer contravened the constitution when he participated in the August 12, 2021 general elections.

He wanted the Court to pronounce that Lungu was not eligible to contest a presidential election under the current constitution, as read with the now repealed 1991 Constitution (as amended)

Chizombe was seeking a combined interpretation of Sections 7 of Act no.1 of 2016 and Section 2 of the same Act.

He was further seeking a declaration that Lungu was not eligible to seek presidential office for a third term, and that the electoral body contravened the law when it allowed him on the ballot.

In response to Chizombe’s petition, Lungu swore that he was never sworn into office twice.

Lungu argued that the ConCourt had already pronounced itself on his eligibility debate, when it cleared all constitutional barriers for his attempt at third term.

He said a dissenting judgement by Court president Margaret Munalula could not be relied upon to set a precedent.

Lungu urged the Court to embrace the principle of finality in legal decisions, and consider the grim effects of setting aside a decision that was rightfully made in his favor.

During hearing Chizombe’s lawyer Micheal Moono argued that; Lungu was sworn into office under the 1991 constitution which clearly defines what constitutes a term, therefore the Court could not rely on the amended constitution of 2016 which was a fresh document to invalidate his first election.

Lungu’s lawyer Bonaventure Mutale argued that the petition was incompetent on grounds that the court has no jurisdiction to entertain it, as
there’s no provision that caters for challenging a losing candidate in the constitution.

Makebi Zulu said the Court had already pronounced that Lungu’s first term in office was not a full term, as it was an inherited term, following the death of late President Micheal Sata.

Solicitor General Marshal Muchende argued that the issue of making decisions in disregard of the law (per incurium) by the majority in the past, can be revisited by the Court.

Following months of epic legal arguments, the court finally rendered its judgement this morning, declaring that Lungu’s participation in the 2021 election was illegal.

Delivering judgement during a court session that was being filmed and broadcast live on the national broadcaster, Constitutional Court deputy president Arnold Shilimi said, the Constitutional Court being an Apex Court has the power to deviate from its decisions, in exceptional circumstances where it establishes that the earlier decision is erroneous.

“The court has been asked to depart from its previous decisions. Apex courts in Africa and beyond have the inherent jurisdiction to depart from their previous decisions, and regulate their own processes. These courts can depart from the previous decisions of their own only when satisfied that the previous decisions are wrong. In our view, reviewing a judgement or a decision is not the same as departing from the previous decision,”judge Shilimi said.

“A decision of the constitutional court on a constitutional matter is final. Only this court in a future and appropriate matter may over rule or depart from its previous order. The argument that courts do not have Jurisdiction to set aside their decision in exceptional circumstances is flawed.”

He said the Zambian constitution is notorious to amendment but legal professionals ought to uphold the law and correct erroneous decisions.

Judge Shilimi dismissed the argument by Lungu that the matter was already decided upon, saying that re-judicata is not a doctrine principle, as the Constitutional Court has unfettered jurisdiction to reopen cases in exceptional circumstances where it considers that the previous decisions were made in disregard of the law (in Per Curium).”

He said ECZ cannot be liable for allowing Lungu to participate in the 2021 general election as a presidential candidate, because it did so owing to the wrong decisions made by the ConCourt in the Danny Pule case, Bampi Kapalasa case and Legal Resources Foundation case, that his first term in did not constitute a full term, as he was concluding late President Micheal Sata’s term.

Judge Shilimi said the said judgements having been passed into law were binding and ought to be respected.

“We find that article 106(3) does not bar Lungu from participating in 2021 and that he was qualified to participate in the 2021 elections,”he said.

Judge Shilimi directed that Constitutional Lawyer John Sangwa’s submissions as a friend of the court (amicus curiae) that; nullifying Lungu’s nomination in the 2021 vote, the Constitutional Court would have also nullified the entire election that ushered in the UPND, are of no value because, Lungu was declared eligible to participate in the presidential race by the Court in the three previous erroneous judgements.

He said bordering on the transitional period the Court looked act Section 7(1) of Act no. 1 of 2016 when it drew conclusions that Lungu’s first term was an inherited term and not a full term as defined in Article 106(6) of the constitution.

“Consequently it said article 106(3) did not bar Lungu from contesting the 12 August 2021 elections. The interpretation of Section 7 and 2 of the Act read together with the repealed Article 35(2)of the constitution was never made. Framers of the 2016 Constitution had in mind the transition period in those relating to State organs including the president not to create a vacuum,” he said.

Judge Shilimi clarified that Lungu’s first term which ran from 2015 to 2016 was served in the transition clauses and on particular Section 7 and 2 of the Act and continued with the repealed Article 36 of the Constitution. In terms of the term limit the repealed Article 35 was applicable to his first term.

“Article 106 of the Constitution did not apply retrospectively (backwards) in the legal resources foundation case. The decision is per incurium (made in ignorance of the law). We accordingly depart and vacate that decision (that Lungu inherited Sata’s term) and previous decisions which made similar findings contrary to the well settled principles of the law, that the law does not operate in retrospect unless it states so,”judge Shilimi said.

He indicated that there is no provision that provides for the retrospective effect of the law in the constitution and there is abundant case law in this jurisdiction on such laws.

“Having considered Section 7 and 2 of Act no. 1 and repealed Article 35 of the Constitution we take the view that the decisions in the Daniel Pule Bampi Kapalasa and legal Resources Foundation, were arrived at per incurium (in disregard of the law) as section 2 and 7 are clear that the first term that ran from January 2015 to September 10 was catered by the repealed Article 35,”judge Shilimi said.

“We dismiss the argument by lungu that the matter was resjudicata as a matter cannot be res-judicata where a matter was arrived at per incurium (in ignorance of the law). We feel compelled as a guardian of the constitution to put to rest the fundamental misconception about Article 106(6) of the Constitution.”

He said the assumption that there is a third term in Article 106(6) has been the source of much public tension and uncertainty hence the need for the Court to intervene.

“We find that article 106(6) does not create a third term,”said judge Shilimi.

“Our combined interpretation of Section 2 and 7 of the Act and the repealed Article 35(2) of the Constitution is that Lungu’s first term of office that ran from January 25, 2015 to September 13, 2016, constituted a term of office. Lungu’s term of office which ran from September 13, 2016 to August 2021 constituted his second term. Mr Edgar Chagwa Lungu has therefore been twice elected, and has twice held office. Article 106(3) of Constitution makes Lungu ineligible to participate in any future elections as a presidential candidate.”

The court made no orders for costs.

The case was heard by a panel of seven comprising of professor Margaret Munalula, Martin Musaluke Judy Mulingoti, Mudford Mwandenga, Mapani Kawimbe, and Kenneth Mulife, however judge Mulongoti was indisposed during judgment today.

Today’s judgment which ends Lungu’s political career, has ignited widespread jubilation among Zambian citizens, who were apprehensive about Edgar Lungu’s potential return to power and the accompanying resurgence of political violence across the country.

Lungu’s supporters perceive him as a devout Christian, but his critics view him as a ruthless leader who oversaw an authoritarian and violent regime during his seven-year tenure.

Lungu’s presidency was marked by a penchant for violence, with a formidable army of party cadres at his disposal, notorious for unleashing brutal beatings on citizens to coerce support for the Patriotic Front’s (PF) unique brand of governance.