Home Politics Why Concourt Was Wrong On Lungu’s 2021 Eligibility

Why Concourt Was Wrong On Lungu’s 2021 Eligibility

President Edgar Lungu

Imagine it is 2014 and Dr Guy Scott is acting as President of the Republic of Zambia after the death of President Michael Sata. He somehow manages to get the Zambia Constitution Amendment Act of 2016 passed in Parliament and signed into law during the 90 days he is acting. He then calls the Attorney General to render a legal opinion on his new status after the Constitution has been amended. Other prominent Constitutional lawyers are also consulted.

Next thing, he calls a Cabinet meeting and presentations are made by the Attorney General, Solicitor General and other lawyers. Afterwards, Dr Scott announces to Cabinet that based on the legal opinions they have just heard, he should be immediately sworn in as President because the amended Constitution provides for the sitting Vice-President to be sworn in when the incumbent is no more. Some Ministers agree with his position but many others disagree because they are eyeing his seat. The Cabinet meeting extends into a lengthy debate for several hours running deep into the night.

Dr Scott’s opponents point out that before the 2016 Constitution came into effect, there was no provision for an appointed Vice-President to immediately assume office. He, therefore, has no legal basis to be sworn in as president. They point out that what he is doing amounts to retroactively applying a law which did not exist previously when he was just an appointed Veep. Moreover, they say, the transitional provisions which provide for what will happen during the interim period leading up to the full application of the new Constitutional order in August 2016 do not explicitly allow him to complete the remainder of Mr Sata’s term.

However, Dr Scott’s supporters counter that a literalist interpretation of the law is unfair. They argue that to all intents and purposes, Guy Scott fits into the role of an elected running mate. They say that the framers of the constitution clearly wanted to get rid of costly Presidential by-elections after the experience Zambia has had in 2008 and 2014 of sitting Presidents dying in office. So according to the spirit of the law, Dr Scott being sworn in achieves this purpose.

Whether he himself was on the ballot alongside Mr Sata is immaterial since, in the eyes of Zambians, he was part of the ticket and was already known as number two to Mr Sata. Any questions of citizenship for Dr Scott have already been settled by the amended Constitution since it is no longer a requirement for his parents to have been Zambians (whatever that means in the pre-1964 era). Furthermore, it is argued that one must take a holistic approach and not be stuck on the exact letter of the law but rather what it is meant to achieve. This called the “Purposive” (or spirit of the law) interpretation as opposed to the “Literalist” (or letter of the law) approach.

One Cabinet Minister then points out that the Purposive method only applies when the Literalist interpretation produces an absurdity or an ambiguity. Neither of the two applies because the law is very clear with no uncertainty or absurd outcome. Dr Scott was not directly elected by the people so, therefore, cannot be sworn in. Moreover, appeals to “unfairness” only affect Dr Scott and cannot be the basis of making such a momentous decision for the whole country.

Another minister stands up and argues that this line of thinking is wrong because although there is no debate on the Constitution barring Dr Scott from assuming office based on the strict letter of the law as written, the transitional provisions recognise his currently running acting presidency since it is obviously not possible to fully comply with the amended Constitution. They explain that it is not possible to immediately produce a Vice-president who was a running mate to the president since the previous elections were held under different rules. Dr Scott is still exercising the executive functions of the president as if Zambia was still under the rules of the 1991 Constitution (amended in 1996). Not everything in the amended 2016 Constitution has come into effect whilst other things have, such as the Grade 12 Certificate requirement for contesting elections which is immediate.

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The debate eventually ends up focusing on the transitional provisions. The essential question then becomes whether the transitional provisions are adequate to cover Dr Scott’s unique situation. His supporters say they are ambiguous and would require interpretation by a competent court based on the purposive method of interpretation. However, in the absence of a lawsuit, there is nothing stopping Dr Scott from being sworn in as there is some leeway in the amended 2016 Constitution.

And so the following day, Dr Scott is sworn in as 6th President of Zambia to serve the remainder of the term of Mr Sata. This action sharply divides opinion and ignites a fierce debate on radio, television, print, Internet and social media with passionate arguments from both sides. Finally, someone who supports Dr Scott decides to pre-emptively file a case in the Constitutional Court for determination of his eligibility to take over as full president.

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