Why Zambia's highest court found President Edgar Lungu eligible to serve another term

22 February 2019 · Carmel Rickard

Zambia’s highest court has given the country’s president, Edgar Lungu, the go-ahead to serve a third term in office if he wishes. This judicial permission for the president to take a step regarded as contentious by many in Zambia, came by way of a judgment that had as its core the definition of a presidential “term”. The court found that a president may serve only two terms. However, sections of the constitution provided that a third term of less than three years, served as a stand-in president when the previous president could no longer function, did not count in computing the two terms. According to the court, a president would thus normally serve a maximum of 10 years but a full term of office could vary between eight and 13 years, depending on the circumstances. Though this was the main work of the court in this matter, the judges also issued a stiff warning to people not to “attack” judges “related to matters before the court”, adding that if they did so, they could face serious consequences.

Read judgment on ZambiaLII here

IN a recent case testing whether Zambia’s President Edgar Lungu may lawfully stand for a third term in 2021, that country’s highest court had something to say about the problem of threats to the judiciary “related to matters before court” - though the judges did not say whom they had in mind.

In fact, the 84-page judgment begins with a brief reflection on this very problem and adds a tough warning by the court itself, something so unusual in major decisions such as this that it is worth reproducing:

“Before we consider this matter, we wish to observe that we noted with grave concern that whilst this matter was ongoing several individuals were commenting in a manner that was calculated to either influence the proceedings or bring the individual judges of this court into disrepute.

“This court has generally exercised maximum tolerance in a bid to protect the right to free speech because of its nature as the people’s court. However, free speech does not entail destroying the very institution that the people have created. And each individual’s right to free speech ends where another’s begins.

“We therefore want to render a timely warning that those who engage in gratuitous and unwarranted attacks on the members of the court related to matters before the court do so at their own peril as we shall not hesitate to cite them for contempt should their comments invite that action.”

Many people made comments that could be seen as trying to influence the outcome of the case and Lungu’s own comments, made before judgment was given, fall into that category as well. He warned the local judiciary not to “copycat” Kenya’s judges – the highest court there held that a recent election was invalid and had to be re-staged – and said judges should not imagine they would become heroes by plunging the country into chaos. It was not correct that he was “intimidating” the judiciary with these remarks, he said. “I am just warning you because I have information that some of you want to be adventurous; your adventure should not plunge us into chaos please.”

Reacting to these comments, the Law Association of Zambia asked the president to withdraw his “warning”. They said his remarks served to “undermine the authority of the judiciary and erode public confidence in the institution”.

Readers of the resulting supreme court decision, with this preface about likely contempt action, are left wondering whether the judges were responding to the president’s remarks, or if they had some other attackers in mind.

Whatever the answer to that question, the judgment itself is unanimously in favour of the proposition that the president may serve the extended term he has sought.

Though a long decision, the kernel of the judgment comes in the last ten pages. On the way to this point, the court stresses its view that interpretation of legislation must begin with “literal interpretation” and only move to a “purposive interpretation” when a more literal approach would “result in absurdity”.

The judges put this approach into practice with this decision.

The nub of its findings, at page 78 – the court still continues the inconvenient and outmoded practice of not numbering its paragraphs – are that article 106 (6) of the constitution presents a “novel situation”. The intention of the legislation can be seen from the implications of article 106, namely that “a person can serve only two five-year terms amounting to 10 years”. But then subsection (6) was added, defining what constitutes a full term: “Any period of three years and above is a full term. A period less than three years is not a full term.”

Given the present provisions it is thus possible that a person can serve for a period of less than 10 years – one term of three years or more and another term of five years – and between them these will count as two full terms even though the period in office is less than 10 years. On the other hand, it is also provided for that someone could “occupy the office of president for a period which is less than a full term in addition to two full terms of office” and be in power for almost 13 years.

So the provisions of the constitution, as interpreted by the supreme court, would allow that a full period in office could range between 13 and eight years.

“When the constitution is read holistically, we believe the intention of the legislature was that when a person takes over the unexpired term of a previous president, that person should … serve a substantial part of the unexpired term in order for such a term to be considered as a full term.”

The last question that had to be resolved was the impact of a presidential term that “straddles two constitutional regimes”. The judges said the relevant provisions showed the intention of the legislature: someone who “assumed the office of president to complete the unexpired period of the term of another president” had to serve a “substantial part” of the other president’s five-year term before it would count as a full-term presidency.

Then comes a concluding sentence of such extraordinary length that it is worth quoting in full: “It therefore follows that in the current case, the term served which sits astride the pre and post 2016 constitutional amendments and having looked at the intention of the legislature as we have done, and the holistic approach we have taken in interpreting Article 106 of the constitution in its entirety, our answer to the question that we have rephrased is that the presidential term of office that ran from 25th January, 2015 to 13th September, 2016 and straddled two constitutional regimes cannot be considered as a full term.”

Carmel Rickard

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