At a time when authoritarian leaders across Africa are looking to scrap the two term limits imposed by their respective constitutions, the case of Dr Danny Pule & 3 Others Vs. The Attorney General & Davies Mwila [2018] has catapulted Zambia to the forefront of term limit controversies. The case highlights one of many constitutional legal gaps in Zambia’s 2016 constitution.
The Constitutional Court asserted President Edgar Lungu did not complete a full term of office, as defined by Article 106(6), when he was elected in 2015 and that the relevant provisions in defining term of office should be read holistically. The outcome of this process is therefore that Lungu has been deemed eligible to run for election in the next presidential election in August 2021. However, this judgement seems to contradict the two-term limitation imposed by the 2016 Zambian constitution in Article 106(3).
As a result, the term-limit debate is likely to make the 2021 general elections – already set to be a close contest – even more controversial.
When winning two elections does not equate to two terms in office
Following the untimely death of former President Michael Sata while in office, President Lungu assumed office to complete his term – after winning a presidential by-election – from the 25 of January 2015 to the 13 of September 2016. In 2016, President Lungu was then re-elected to serve a full term of 5 years in office. From this context, one would naturally deduce that Lungu has twice been elected to the office of president.
In addition to this, Article 106(3) of the 2016 constitution of Zambia asserts that “A person who has twice held office as President is not eligible for election as president”. This can be interpreted to mean a person who holds the office of president in Zambia for two terms is no longer eligible for re-election for a third term. Again, this seems to rule Lungu out.
However, this all depends on exactly how one defines a “presidential term”.
When asked to define “a term of office” the Constitutional Court decided to read two different parts of the constitution together – namely Article 106(1) and (6) – adopting a “holistic” approach. This means the two sections were read in relationship to one another and not independently. The justification for doing so was that “an interpretation of a constitutional provision that isolates the provisions touching on the same subject is faulty.”
This step was critical to the decision ultimately taken by the Court.
Respectively, Article 106(1) states a “term of office for a President is five years” and Article 106(6)(3)(a) and (b) stipulate that a period of less than 3 years does not constitute a full term of office but a period of 3 years and above presents a full term of office. This means that for a term of office to be considered a full term, a person must be in office for 3 years or more.
As a result, Article 106(6) is not straightforward to interpret. Although President Lungu has been in office for “two terms”, only serving 8 months in his third term means that he did not serve for more than three years and so did not serve a “full term” on the basis of the new constitution.
It was on this basis that the Constitutional Court ruled that Lungu had not exhausted presidential term limits.
The politics of presidential succession
In effect, the Constitutional Court concluded that the intention of the constitutional drafters was to allow or enable a person who assumes the office of president to complete the unexpired period of the term of another president by serving a substantial part of it to make that term count as a full term. Hence, the Court stated that the “Presidential term of office that ran from 25th January 2015 to 13 September 2016 and straddled two constitutional regimes cannot be considered a full term”.
But of course this overlooks a central political point – the new constitution was drafted under the influence of President Lungu, and was explicitly designed to change the definition of presidential terms so that he would be found eligible to contest in 2021.
In turn, this highlights the extent to which the judiciary has been politicised during President Lungu’s time in office – not least because he has effectively chosen the members of the Constitutional Court, and in doing so has selected the very body that is designated with reviewing the constitutionality of his actions. The president even warned the Zambian judiciary not to try and copy the example of the Kenyan Supreme Court, which nullified the victory of Presidential Kenyatta in 2017, in the run up to the verdict.
It is therefore clear that President Lungu’s ability to exert political pressure over the judiciary means that any attempts to iron out constitutional loopholes in a way that respects checks and balances and reduces the power of the executive will be met by serious pushback from the government. President Lungu is determined to stay in power come what may, and will not allow legal niceties to stand in his way.
The election controversy to come
The compromised nature of the Constitutional Court is particularly significant given the close election on the horizon. A common thread in recent presidential elections in Zambia is that the losing party alleges rigging. Indeed, the main opposition party has disputed all the election results since president Lungu stepped into office.
History is very likely to be repeated in 2021, as opposition leaders have already accused the government of manipulating the electoral register, intimidating opposition supporters and running an illegitimate presidential candidate.
If Lungu wins a narrow and contested victory, as may well happen, the big question now is whether the opposition will be willing to take their complaints to a Constitutional Court that is widely viewed to be politically bias. If not, they may prefer to have their case heard in the court of public opinion and take their protests to the streets. This would be understandable, but would significantly increase the potential for political violence and instability.
By politicising the judiciary and compromising the norm that presidents only serve two terms – which is popularly understood to refer to spending any part of a term in office, despite what the new constitution says – President Lungu has undermined confidence in key democratic institutions. Not only has this weakened them and made them more pliant to future leaders, but it has undermined the trust that many Zambians have in their government.
Building back better
It is imperative that the independence of the judiciary is restored, and that the loopholes and inconsistencies in the constitution are resolved to reinsert key checks and balanced on the president. This is not just an issue for President Lungu, but for future leaders. After all, Lungu is not the first leader to attempt to secure a third term. Before him, President Chiluba tried and failed.
There will be more Lungu’s and Chiluba’s in the future, which makes it imperative that constitutional provisions designed to prevent president’s from extending their time in office are respected. Under the current model, for example, one could imagine a leader stepping aside to allow their deputy to take over presidential duties for a certain period of time in order to be able to argue they had not in fact completed a presidential term and so were eligible to contest the next election. Indeed, there is a risk that Lungu himself may seek to utilise a loophole such as this, given that he clearly has no intention of leaving office.
Strengthening the judiciary will not be an easy task – it has been heavily shaped by political considerations since independence – but it is a necessary one, and important lessons can be learned from the past. When Chiluba was stopped, it was as a result of a combination of strong and coordination action by civil society, the international community, opposition leaders and some members of the ruling party that refused to go along with the presidents plans. It is time for the same groups to stand up and be counted in Zambia’s hour of democratic need.
Mwai Daka (@MwaiDaka) is a politics postgraduate from the Department of Politics at the University of Sheffield. His research interests are land tenure, food security, and human rights.
