Lungu’s third term eligibility: a constitutional case

Lungu’s third term eligibility: a constitutional case

The question of whether the president can run for a third term is roiling Zambia’s political scene.

WHAT’S HAPPENING?

Zambia’s Constitutional Court is yet to determine whether President Lungu of the Patriotic Front is eligible to stand for the 2021 presidential election.

KEY INSIGHTS

– Poor handling of the case will create tension in the already fragile political environment, and further erode confidence in the judiciary.
– Dismissal of the case could precipitate a constitutional crisis, further polarise society and destabilise the political system
– Increased political instability could create economic uncertainty and undermine growth as well as fundamental development goals.

The Constitutional Court has once again adjourned a hearing on presidential term limits that could decide incumbent President Edgar Lungu’s political future. In January 2017, four opposition political parties allegedly aligned to the ruling Patriotic Front petitioned the Constitutional Court on the question of Lungu’s eligibility to contest the 2021 presidential election. The four parties argued that Lungu’s election in 2015 — which followed the death in office of President Sata — did not constitute a full term in pursuant of Article 106 Section 6 (b) of the Constitution of Zambia amendment Act 2016. If the petition is successful, Zambia could join the growing list of African countries whose leaders have used extraconstitutional measures to outstay their term limits.

The technical details of the case hinge on differing legal perspectives. The four opposition parties appear to be supporting the continuation of the Lungu administration based on Article 106 Section 6 (b), rather than seeking examination of his eligibility to participate in future elections. Those critical of the president’s potential future run for office have based their argument on Section 3 of the Article, which states that “a person who has twice held office as president is not eligible for re-election as president”. Given these diverging perspectives, the Law Association of Zambia (LAZ) called for the Constitutional Court to determine whether Lungu is eligible to stand in 2021.

FATE OF TWO CONSTITUTIONS

Zambia Supreme Court Building in Lusaka. / Lungu's eligibility

Photo: Brian Dell / Wikimedia Commons

On January 20, 2015, Lungu was elected president of Zambia to finish President Sata’s first five-year-term of office, as prescribed in the 1996 Constitution. Lungu was re-elected in the vehemently contested August 2016 for a five-year term that expires in 2021. Though Lungu first took office in 2015 under the 1996 Constitution, he was re-elected under the 2016 Constitution. In the new constitution, presidential term limits have not changed.

Following Lungu’s re-election in August 2016, debates emerged about his eligibility to stand as a presidential candidate in 2021. Lungu himself has publicly defended his eligibility, but his opponents claimed his potential bid would constitute an illegitimate third term.

Article 106 Section 3 of the 2016 Constitution states that “A person who has twice held office as president is not eligible for re-election as president”. Section 6 then explains that the Vice President or President-elect shall serve for the unexpired term of office and be deemed (a) to have served a full term as President if, at the time of assuming office, at least three years remain before the date of the next general election; or (b) not have served a term of office as president if, at the time of assuming office, less than three years remain before the date of the next general election.

By the next election, Lungu will have held office twice: from January 2015 to August 2016, less than three years, and a full five-year term which commenced in August 2016. On both occasions, he contested elections, won and was sworn into office. However, Lungu was never a vice president, therefore Section 6 may not apply to him. These multiplex links of Article have necessitated the Constitutional Court’s interpretation.

A TEST OF CONSTITUTIONAL COURT IMPARTIALITY

Edgar Lungu President of Zambia at NY event on industrialisation in Africa / Lungu's eligibility

Photo: UNIDO / Flickr

The quickest solution to the current impasse is for the Constitutional Court to hear the case and determine whether President Lungu is eligible or not, thereby enlightening Zambians on the provable clause supporting or rejecting the petition. Such a process would minimise political fallout. If the Court rules against Lungu, he will likely recognise the Court’s decision. However, he is a dogged politician; he would not go without a fight. If the Court rules in support of Lungu’s eligibility, the opposition parties are likely to refuse to accept the Court ruling.

The case has been in the Constitutional Court since January 2017 with two adjournments, most recently on January 30. Should respondents fail again to present evidence, expect further postponements or even dismissal of the case. Such an outcome could see Lungu run in 2021 without legal standing. Such a result might trigger a constitutional crisis.

The Constitutional Court has the final jurisdiction to hear cases relating to matters of interpreting challenged laws. It is unlikely that it will leave the petition unresolved as that could weaken public confidence in the judiciary and the political system, and undermine investor confidence. As roughly 62% of the economy depends on foreign funding, depressed confidence due to political upheaval could result in a significant withdrawal of international investment. The subsequent slowed economic growth would increase domestic mistrust in the authorities, an outcome all parties to the constitutional case want to avoid.

If the Court rules in favour of the petition, President Lungu will join the growing list of African leaders — including Rwanda’s Paul Kagame of Rwanda, the Democratic Republic of Congo’s (DRC) Joseph Kabila, and Uganda’s Yoweri Museveni — who have used extraconstitutional measures to outstay their two-term limits. These actions have become a source of conflict in fragile states, particularly in the DRC where dozens of people have been killed in protests against Kabila’s ongoing rule. Given the opposition’s expected unwillingness to accept such a ruling, political violence is a major concern.

The Constitutional Court is responsible for maintaining the rule of law by resolving matters of challenged laws, sustaining confidence in the judiciary and contributing to the advancement of economic development. Whether the Court can determine constitutional issues impartially by putting national interest before politics and prevent social unrest remains to be seen.