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THE State has asked the Constitutional Court to nullify the judgement of the majority that decreed that Edgar Lungu’s first Presidential term was inherited.
Kabesha said the petition brought by Michelo Chizombe questioning Lungu’s qualification to contest in the 2021 general election and future elections was not about his eligibility but creating a paradigm that a candidate that has twice held the office of President cannot contest in an election for the same position.
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In this matter Chizombe wants the Court to declare that Lungu’s participation in the previous election was unconstitutional.
Chizombe who has cited Lungu, the Electoral Commission of Zambia and the Attorney General as respondents in the matter indicated that Lungu contravened the constitution when he participated in the August 12, 2021 general elections.
He stated that the electoral body contravened the constitution when it accepted Lungu’s nomination and allowed him to be on the ballot paper for the 2021 presidential elections which enabled him to participate.
Attorney general Mulilo Kabesha in his answer to the petition said the Court should set aside its decision in a matter where Legal Resources Foundation Limited, historian Sishuwa Sishuwa and Chapter One Foundation petitioned Lungu for abrogating the law when he filed in his nomination papers as the PF presidential candidate in the August 12, 2021 general elections after assuming the office of President twice.
Kabesha said the decision should be renounced as Article 106 of the Constitution (Amendment) Act no. 2 of 2016 does not have a retrospective effect.
He said I t should be noted that Article 106(3) has three important components such as the formal introduction of the Constitutional concept of mandatory alternation of the person holding the office of president,
which is an essential element of the constitution.
“It creates ‘holding office’ as the premise of the said Constitutional concept of mandatory alternation of the person holding the office of President and It mandatorily precludes and prohibits any such person who has twice held the office of president from taking part in elections for the same position,” Kabesha said.
He argued that Article 106(3) is very clear and important , as it is also a Constitutional prohibition and limitation clause which prevails over the substance of Article 106(6), to the extent that its provisions conflict with Article 106(3).
Kabesha explained that Article 106(3) strictly provides that under no circumstances, should any such person hold the office of president more than twice and said the dictate is non negotiable.
He said Article 106 (6) was in conflict with Article 106(3) by suggesting that when a term should not be less than three years.
“It must be indicated that, since Article 106(3) is a positive Constitutional prohibition, and it supersedes the provisions contained Article 106(6), the dictates of Article 106(3) will be enforced as if the conflicting substance of Article 106(6) does not exist,” Kabesha said.
“It is our humble and considered view that this matter is not about eligibility of the first respondent per se, but rather, it is about the eligibility of any such person who has twice held the office of president now and in future.”
The Attorney General said the motive is to protect the fundamentals of constitutionalism, therefore the Court is being invited to look at a bigger picture.
“It is our further humble submission and prayer that this honourable court grants the reliefs sought,” said Kabesha.
By Mwaka Ndawa
Kalemba November 22, 2023.
