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Judgment

JI , 6J SELECTED JUDGMENT NO. OF 2018 (2224) IN THE CONSTITUTIONAL COURT OF ZAMBIA 2017/CCZ/004 ! AT THE CONSTITUTIONAL COURT REGISTRY:_---~ r-:;~_fi t~~t HOLDEN AT LUSAKA 2,-.t.1BIA ~ (CONSTITUTIONAL JURISD1CTJJ1i; OJ ill'.C tll\i \ eo1S'fRY ' KA IN THE MATTER OF: THE IN~f:RPf$EJ4f:I.ON:~F:,.Y,M:i:iGt: S 106 (1), (3), (6), 267 (3) (d)..oF-T-He"CONSTITUTION OF ZfMBIA AND ' I IN THE MATTER OF: TENURE OF OFFICE OF MR EDGAR SHAGWA LUNGU PRESIDENT OF THE REPUBLIC OF ZAMBIA I AND IN THE MATIER OF: THE ELIGIBILITY OF MR EDGAR CHAGlA LUNGU PRESIDENTIAL CANDIDATE IN THE PR~SIDENTIAL . ! ELECTION TO BE HELD IN 2021 BETWEEN: DR DANIEL PULE 15 T APPLICANT ' WRIGHT MUSOMA 2ND AP,LICANT PASTOR PETER CHANDA 3RD AP1LICANT ROBERT MWANZA 4TH APFfLICANT AND (2225) I ATTORNEY GENERAL 1sT RESPONDENT I DAVIES MWILA 2ND RESPONDENT (In his capacity as Secretary General of the Patriotic Front) THE LAW ASSOCIATION OF ZAMBIA 1ST INTERESTED PARTY STEPHEN KATUKA INTERESTED PARTY (In his capacity as Secretary General of the United Party for National Development) Coram: Chibomba, PC, Sitali, Mulenga, Mulembe, Mulonda, Munalula and Musaluke, JCC. On 9th May, 2018 and on 7th December, 2018 For the Applicants: Mr. B.C. Mutale, S.C, of Messrs El,lis and Co.; Mr. S. Mr. Sikota, S.C, of Central ~hambers; Mr. R. Malipenga of Messrs. Robsdn Malipenga and Co.; Mr. C.K. Bwalya of D.H Kemp and Co.; Mr. M. Lungu of Lungu Simwanza and Co.; Mr. D. Jere of Messrs Mvunga and Associates. I For the 1st Respondent: Mr. L. Kalaluka, S.C, Attorney General; Mr. A. Mwansa, S.C, Solicitor Genbral; Mr. J. Simachela, Chief State Advocate; Mrs G. Tiku, Principal State Advocate; Mrs D. Shamabobo, Senior State jdvocate. For the 2nd Respondent: Mr. J. Zimba of Messrs Makebi Zulu Advocates. For the 1st Interested Party: Mr. J.P. Sangwa, S.C, of Messrs Simeza Sangwa & Associates. Ms. N. Alikipo, of Simeza Sangwa & Associates. I I J3 (2226) For the znd Interested Party: Mr. K. Mweemba of Messrs Keith Mweemba Advocates. Mr. G.A. Phiri of PNP Advocates. JUDGMENT Chibomba, PC delivered the judgment of the Court. I Cases referred to: I 1. S v Mhlungu 1995 (3) SA 867 (CC). 2. Lewanika and Others v Chiluba (1998) Z.R. 79 (SC). r 3. Katuka and Another v Attorney General and Others CCZ JJudgment No. 29 of 2016. i ' 4. David Tinyefuza v The Attorney General of Uganda, Constitutional Petition . I No.1 of 1996. : ' 5. Crispus Karanja Njogu v Attorney General (Criminal application 39 of 2000). 6. Julius lshengoma Francis Nyanabo v The Attorney GenerJ1 Civil Appeal No. I 64 of 2001. 7. Omoyeni v Governor of Edo State [2004] NWLR 865. 8. Moobola v Muweza (1990-1992) Z.R. 38 (SC). / 9. Zambia National Holding Limited and United Nations Independence Party v ' Attorney General (1993-1994) Z.R. 115. t' 10.Government of the Republic of Namibia and Another v Cultura 2000 and Another 1994 (1) SA 407. 11.Bangopi v Chairman of the Council of State, Ciskei 1992 ( ) SA 250. I 12.Attorney General v Unity Dow [1992] LRC (Const) 623. 13.Attomey General and Speaker of the National Assembly v The People i (1999) Z.R. 186. 14.Nawa v Standard Chartered Bank of Zambia (2011) SCZ Judgment No. 4. I 15.L'Office Cherifen des Phosphates and Another v )jamashita-Shinnon Steamship Co Ltd, The Boucraa [1993] 3AII ER 686 AT 692. I 16.Sunshine Porcelain Potteries Pty Ltd v Nash [1961] AC 927. I 17.Lauri v Renad [1892] 3 Ch 402. 18. Regina v Secretary of State for Social Security Ex parte Britnell (Alan) [1991] 2 All ER 726. 19.Jones v Wrotham Pack Estate [1980] AC 74. 20.0liver Ashworth (Holdings) Ltd v Ballard (Kent) Ltd [199~] 2 ALL ER 791. I I J4 (2227) 21.R (Quintavalle) v Secretary of State for Health [2003] 2 ALLIER 113. 22. The Attorney General, The Movement for Multiparty Democracy v Akashambatwa Mbikusita Lewanika and Others (1994) Z.R.i 164. 23.Lubunda Ngala and Jason Chulu v Anti-Corruption Commi~sion22 Selected II Judgment No. 4 of 2018. 24.Zambia National Commercial Bank PLC v Martin Musonda and 58 Others Selected Judgment No. 24 of 2018. I MS. 25.South Dakota v North Carolina (1940) 192 USA 268: 48 ED ' 26.Milford Maambo and Others v The People Selected Judgment No. 31 of I 2017. I 27.Lumina and Mwiinga v The Attorney-General (1990 -1992) Z.R. 47. Statutes referred to: 1. The Constitution of Zambia Act No. 1 of 2016. r I 2. The Constitution of Zambia (Amendment) Act No.2 of 2016. 3. The Constitution of Zambia Act 1991. / 4. The Constitution of Zambia (Amendment) Act No. 18 of 19r6. 5. The Constitution of Zambia 1964 j· 6. The Constitutional Court Act No. 8 of 2016. 7. The Law Association of Zambia Act Chapter 31 of the La s of Zambia. 8. Statutory Instrument No.156 of 1969. Other Materials referred to: 1. A. Chayes in 'The role of the judge in public litigation' (1979) 86 Harvard Law Review 1281. 2. Craies on Legislation, A Practitioners Guide to the Nature Process, Effect and interpretation of Legislation, 81 Edition Sweet and Maxwell. h I 3. Francis Bennion, Statutory Interpretation, 3rd Edition, Butterworths. 4. The Twenty-second Amendment to the United States Corlstitution. I Before we consider this matter we wish to observe that we noted with . I i grave concern that whilst this matter was ongoing several individuals were I commenting in a manner that was calculated to eitHer influence the I proceedings or bring the individual judges of this Court int6 disrepute. This I I I J5 I (222s) Court has generally exercised maximum tolerance in a bia to protect the right to free speech because of its nature as the people's pourt. However free speech does not entail destroying the very instnution t•t the people have created. And each individual's right to free spee h ends where another's begins. We therefore want to render a timely wJrning that those who engage in gratuitous and unwarranted attacks on the ~embers of this Court related to matters before the Court do so at their twn peril as we that action. i By amended Originating Summons, the four Applicants named above I seek the determination of the following questions:- ' / "1. Whether His Excellency President Edgar chagwa Luilgu will have served two full terms for purpos~s of Article 106 (3) as read with Article 106 (6) of the Constitution of Zambia at the expiry of his current term; / 2. Whether, as a matter of the Constitutidnal law of the Republic of Zambia, His Excellency Piresident Edgar Chagwa Lungu is eligible for election as President for another 5 year term following his curren't term of office which commenced on 13th September, 201r 3. Further any other relief; 4. Costs." J6 I I (2229) The amended Originating Summons was filed pursuant to Order 4, I Rule 3 of the Constitutional Court Rules, 2016 (CCR) and is supported by a I joint affidavit in support deposed to by the four Applicants. ~t the hearing of I the amended Originating Summons, Counsel for the Applicants relied on ! the Skeleton Arguments filed which they augmented with oial submissions. The gist of the joint affidavit, which also gives the brief history of this J matter, is that following the demise of President Michael 9hilufya Sata on I 28th October, 2014 a vacancy was created in the office ofj the President of the Republic of Zambia; the late President Sata had serv~d in the office of President for three years and one month out of his/ five year term; consequently, a presidential by election was held on 20th January, 2015 and Mr. Edgar Chagwa Lungu was elected President oi the Republic of Zambia and that he consequently served the unexpired t~rm of Mr. Sata's tenure for one year and six months; the by-election wa~ held pursuant to the Constitution of Zambia, 1991 as amended by Aci No. 18 of 1996. That on 5th January, 2016 the Constitution was !mended by the I Constitution of Zambia (Amendment) Act, No. 2 of 2016 (The I Constitution as amended); and that the presidential an~ general elections that were held on 11th August, 2016 were held pursuant tb the Constitution I I I . , I J7 I I \ (2230) as amended and that Mr. Edgar Chagwa Lungu, who stood on the Patriotic Front ticket, was elected as President of the Republic of Zambia. That, how~ver,. the que~tion of Pres'.dent Lungu.'s eli~ibility to corest the 2021 pres1dent1al elections has arisen following his announcement on 5th January, 2017 that he would be eligible to contest the 2021 elections and that as a result of this announcement, a nation-wide debatelensued as to . I whether or not he is eligible to contest the 2021 presidentia1 1 elections on ground that he has twice been elected to the office of Preside~t. The deponents further averred that based on ;nformatL from the;, . I Advocates, they believe that the unexpired tenure of office t~at President . I Lungu served from 25th January, 2015 to 131h September, 2016 cannot be I deemed a term of office as it was for a period of less than three years. Hence, their belief that President Lungu is eligible to serve \or a further term of five years which will constitute his second and final term of office. I They therefore commenced this action seeking this Court's ililterpretation whether or not President Lungu is eligible to serve for a furt~er five year period from 2021. In the Skeleton Arguments filed, the Applicants urged us to adopt a purposive approach in interpreting the relevant provisions of the I I I I J8 I \ (2231) Constitution as amended and to take into account the natio~al values and principles as enshrined therein. It was contended that doing so would lead to an 'irresistible' conclusion that President Lungu is eligible \to contest the presidential elections in 2021. Counsel then quoted the provisions of Article I 106 (1) (3) and (6) and also referred to Article 106 (5) (a) and (b) of the Constitution. He pointed out that the proceedings in this cale are purely centred on the import of the above provisions and therefore, cblled for their interpretation. It was argued that applying the literal or textual approach in interpreting Article 106 of the Constitution as amended would )isult into an absurd meaning as a simplistic reading of the said Article appears not to provide for the manner in which President Lungu initially aksumed the \ office of President on 251 January, 2015 and that before the 111 August, h h 2016 elections, he served as President for a period of less\ than three I years. Further, that it would also be against the inbuilt me9hanism for interpretation contained in the Constitution which is at varian6e with the literal or textual approach as it supports the purposive approach. Further, that the literal or textual approach is also inconsistent with the international culture of constitutional jurisprudence which require a J9 (2232) purposive and generous focus in the interpretation of the Constitution. In support of this contention, the South African case of S v ~hlungu1 was I I cited. It was submitted that in interpreting the Constitution, this\ Court should discard the literal and pedantic approach where such an aphroach would I lead to anomalous or arbitrary results. In support of this argumint, the case of Lewanika and Others v Chiluba2 was cited as an example where courts in Zambia have overlooked the literal or textual lpproach in constitutional interpretation. It was submitted that in the Lewanika2 case, the Supreme Court f construed the term: 'full bench of the Supreme Court,' as thl maximum available odd number of the judges of the Court that could be ustered to hear the case. And that this interpretation was reached notwithstanding the literal or textual position of the Constitution on the matter that prbvided that I I a full bench comprised nine judges, a number that had not been achieved I at the time of the proceedings. It was submitted that this Court's holding in Katuka and \nother v Attorney General and Others3 demonstrates the Court's parity of I JIO i I I (2233> reasoning with internationally accepted Constitutional jurisJrudence. And that the decision in that case effectively means that Artid:le 106 of the ! i I current Constitution applied to the Vice President at the material time I I despite the Vice President having been a presidential appointee as opposed to being a running mate. The Applicants' cJntention was I therefore, that although the textual position of the current Constitution is ! that the then Vice President could not assume the office of thb President in I the case of a vacancy in that office, the Katuka3 case, horever, was a I classical exhibition of a purposive and generous focus to constitutional I I interpretation. The Applicants then gave a historical backgrol!lnd on the I constitutional developments as regards the limitation of presidential terms in Zambia. It was submitted that both the Constitution of Za+ia, 1991, as amended by Act No. 18 of 1996, and the current Constitution ~ave come to full circle by specifically barring a person who has twice held\ the office of President from being eligible for re-election as President. Ancl that Article I 106 (6) (b) of the current Constitution has gone even further by introducing . I the concept of 'deeming' whereby a person is deemed a1 not having served a full term of office as President if, at the date on which he assumed I I Jll \ \ (2234) office, there was less than three years remaining before t~e date of the I next general election. It was contended that in the context of the provisions \ of the current Constitution, President Lungu should be deemed as not l having served a term of office as President for the period e5th January, I 2015 to 13th September, 2016 as a period of one year an~ six months . I which he served is below the constitutional threshold of 'holqing office as President' for purposes of Article 106 (3) and (6) (b) of\ the current I Constitution. \ The Applicants then went on to refer to Article 267 of the honstitution. They submitted that this Article compels the Court to i~terpret the Constitution as a whole and not in a discordant manner. Reference was \ made to some of the national values and principles enumerated\ in Article 8 of the current Constitution and then singled out 'constitutionalirm, equity, equality and non-discrimination and good governance'. It was \contended I that national values must be applied in the interpretation of the Cpnstitution. I Article 9 (1) (a) of the Constitution was cited and it was argued that an interpretation that has the effect of nullifying or taking away lny of the I national values and principles must not be applied as it ~ould be I outrageous. In support of the above proposition, the following autHorities I i Jl2 ' I \ (2235) ' were cited: the Ugandan case of David Tinyefuza v r· h e Attorney. General of Uganda4 the Kenyan case of Crispus Kar nja Njogu v ; \ Attorney General5 and the Tanzanian case of Ndyanabo v Attorney I General6 . \ I It was submitted that prior to the constitutional amendm~nt of 2016, a \ vacancy in the office of the president could only be filled t,y way of an I election. And that taken literally, the import of Article 106 (6) (b) of the I current Constitution is that this provision only applies to a per,on who was elected to the office of President as a result of an election held in I accordance with Article 106 (5)(b). And that from a casual appr~ach, Article 106 (6) (b) appears to apply in circumstances where there is a\ vacancy in the Presidency after the coming into effect of the current ConJritution and not before. However, that such an interpretation smacks of\ excessive formalism and pedantic for two reasons; first, it adoptJ a literal ' I interpretation of the Constitution without regard to its purposes, I objectives I I and values as provided under Article 8; and secondly, it relies ~eavily on the misconceived proposition that Article 106 (5) and (6) of tt• current Constitution can neither be applied retrospectively nor to the circumstances I which are before this Court for determination. I \ I ' ' J13 I I (2236) The Applicants contended that a proper reading of Article 1 of the current Constitution entails that the Constitutional amen\dments of 5th I I January, 2016 are retroactive in nature and extend before the said date. In I support of this proposition, the application of legislation\ retroactively, reference was made to the Nigerian case of Omoyeni v Go~ernor of Edo I State7 . \ The Applicants drew a distinction between the prov1s1ons of the I ! repealed Article 38 (1) and the current Article 106 (5) (a). It v>as submitted I that under Article 106 (5) (a) of the current constitution, whete a vacancy I occurs in the office of President, the Vice President assumes\ the office of President without an election as an election may only be heir if the Vice President is unable to take up office; while under the repealJd Article 38 I (1 ), the Vice President exercised executive functions pending t1e holding of an election within 90 days from date of the vacancy. It was argµed that the I repealed Article 38 of the Constitution was not therefore, appli~able to the I matter at hand as the applicable provision is Article 106 of ithe current i Constitution. It was further contended that the application of A1icle 106 to the current case would not amount to applying the law retrospeJtively. As authority for this proposition, the Applicants cited the cases of M4obola v J14 (2237) Muweza8 and Zambia National Holdings Limited and United National Independence Party v Attorney General9 . It was argued that the modifications brought about by l6.rticle 106 (5) (a) and (b) are procedural as they set out the process to be flllowed where there is a vacancy in the office of President. And that the prjcedure under the repealed Article 38 of the Constitution was not satisfactor~ as it tended I to plunge the country into unnecessary power struggl~s after the occurrence of a vacancy in the office of the President. Further\ that in order to address this mischief, a provision in Article 106 (5) (a) and (b) was enacted to provide for the Vice President to assume the office of the President without an election whenever there was a vacancy i~ the office of the President except where the Vice President is unable to alsume office and elections have to be held within sixty days. It was contended that although the current constitutional provisions in I question were not in operation at the time President Lungu todk office, he I was a president- elect at the time he assumed office as all refJrences to a president elect applied to the incumbent when he was elected. In support of this proposition, Article 267 (3) (c) was cited. Jl5 (2238) The Applicants further argued that the national v11ues and the principle of non-discrimination in the current Constitution m\ilitates against . I an interpretation of Article 106 that would be discriminatory. \ herefore, that for purposes of Article 106 (3), the proposition that a President who has I served for less than three years in office should be deemed tb have served I a full term would be unjustified, discriminatory and unfair. Ahd that had it been the intention of the drafters to exclude the application bf Article 106 (3) to an incumbent President, that intention would clear!~ have been t brought out. As an example, the Applicants cited the 22nd ~mendment of . I the Constitution of the United States of America which provide~ as follows: "No person shall be elected to the office of President more t~an twice, and no person who has held the office of President, or acted as \President, for more than two years of a term to which some other perso! was elected President shall be elected to the office of the President more than once. But this article shall not apply to any person holding the offic~ of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting \as President, during the term within which this article becomes operative ;from holding the office of President or acting as President during the remainder of such te~.· \ I They contended that since Article 106 (6) of the current ~onstitution I does not expressly exclude its application to the incumbent 1resident, it I means that he is not excluded. Hence, any interpretation of the Constitution that would make President Lungu, or indeed any other person tJat would \ \ i I I I Jl6 I I (2239) have been similarly placed, ineligible for election as PresidJnt in the 2021 I general election on the basis of Article 106 (3) is retrog~essive to the I national values and principles. Further, that it would also ~e against the innovation of 'deeming' under Article 106 (6) which is inten1ed to provide I relief to the injustice that would result from the application of hrticle 106 (3) to this case. It was submitted that Article 267 (1) (b) of the current Constitution enjoins this Court to interpret the Constitution in a manner thlt permits the development of the law. To press his point further, the followin~ cases were cited:- The Government of the Republic of Namibia an~ Another v Cultura 2000 and Another10 and Bangopi v Chairman of thl Council of. , State, Ciskei11 . It was argued that since the Constitution is not static but alive, a generous and liberal approach of interpretation must be adiopted. As I authority, the case of Attorney General v Unity Dow 12 was cited. ' It was submitted that the import and legal consequenJe of Article 267(3) (c) of the current Constitution is that a President who is l1ected after a vacancy occurred under the repealed Article 38 of the ConstitJtion of • I Jl7 i I (2240) I Zambia is the same person elected to the office of the ~resident under Article 106 (5) (b) of the current Constitution. Hence, since President Lungu was elected after the vacancy caused by the deat~ of President Sata, his situation is for all intents and purposes, captured by Article 106 (5) (b) of the current Constitution. In pressing this point ~urther, it was I contended that the spirit and objective of Article 106 (6)J is to avail a I President elect sufficient time to serve as President without suffering any I prejudice brought about by fortuitous events. \ It was further argued that if Article 106 (5) (a) appliJd to the Vice President then, a fortiori, Article 106(5) (b) and consequently Article 106(6) ' ' must apply to President Lungu. And that this approach is not Inly equitable and non-discriminatory but it promotes the national value and principle of I equality. I I It was the Applicants' submission that the changes introduced by the 2016 Constitutional amendments must be gauged against t~e previously existing state of the law as the limits to the number of lerms that a I president could serve were introduced by the 1991 Constitution which I made the relevant provision prospective in its application. tnd that this enabled the then President to contest the election of that year \ I I J18 (2241) notwithstanding that he had previously served more thbn two terms I because the language used was that thereafter anyone who \had served for two terms of five years each would be ineligible to contest futLre elections. It was also submitted that with the enactment of the 1996 amendments, the term used was changed to 'anyone who .ad twice been elected' was ineligible to contest future elections. And furtl+ that with the 2016 Constitutional amendments taking effect, the position under the current Constitution is that subject to Article 106 (6) a perso~ is ineligible to I contest the presidential election if he or she has served for two terms of five years each as reference to 'twice being elected' has now been replaced with 'two terms of five years each'. Therefore, if the 2021 gJneral elections will be held under the current Constitution without any furtheJ amendments, I then there is no need to do violence to the relevant constitutional provisions I which· are very clear. ! ' In augmenting the Applicants' Skeleton Arguments, M1. Mutale, S.C., . submitted that in the Constitution as amended the unique ci1cumstances of President Lungu were not taken care of by the transitional constitutional I · provisions. Jl9 (2242) It was argued that the Legislature glossed over / the fact that President Lungu's term from 25th January, 2015 to 131h September, 2016 I straddled two constitutional regimes and that at the time the term in question came to an end, President Lungu had only served one year and six months. In this regard, reference was made to the report of the Technical Committee at pages 284 and 285, which, according to State Counsel Mutale, show that the Technical Committee wa/s alive to the circumstances of the incumbent President (President Lun&u). Therefore, I that the current Constitution should have provided for transitional provisions to accommodate President Lungu. And that the LegislatuJe committed a glaring error by not providing for President Lungu's circujstances in the transitional provisions. In this regard, State Counsel Mutale urged us to envisage the intention and purpose of Parliament and the Technical/ Committee as regards the intention behind Article 106 (6) which was tJat an inherited ! term does not count in reckoning whether a President haJ served two full terms. / It was further contended that applying the new con+utional regime to President Lungu's inherited term would not amount to retrospective I J20 (2243) application of the law as President Lungu was still serving his inherited term when the current Constitution came into force. And Jhat this is so I I because the rule against retrospective application of the law bnly applies in instances where accrued rights are being impaired which is ~ot the case at hand. To press this point, the Moobola v Muweza8 case was again cited. Mr. Mutale, S.C urged us to answer the first question raised in the Originating Summons in the negative and the second qlestion in the affirmative subject to Article 100 of the Constitution, respectivliy. In conclusion, State Counsel Mutale took issue with t[e first part o:f the 1st Interested Party's submissions which raised the question whethe'r the Applicants have locus standi and sought to impugn thesJ proceeding~. State Counsel Mutale pointed out that the 1st Interested Paky had raised the same issues before a single Judge of this Court who dilmissed them and that the ruling of the single Judge on this aspect was, not appealed against. Therefore, that this Court has no jurisdiction to entertain the first part of the 1st Interested Party's submissions as it relates to issues already determined by a single Judge. J21 (2244) In view of the position we have taken on this issue, which we will I discuss below, we shall not further outline the extensive arguments by all the parties on this aspect. J I On the other hand, the Attorney General, who is the 1st Respondent in this matter also relied on the Affidavit in response Jand Skeleton • Arguments filed. In the Affidavit in response, it was deposed that during his first segment as President, President Lungu had only served: for a period of one year when the current Constitution came into force; during the second J segment and under the current Constitution, President Ltimgu served a I further period of six (6) months from January, 2016 to 111 August, 2016. 5th / And that the current Constitution provides that a term of less than three (3) years does not amount to a full term of office. In the skeleton arguments, it was argued that the queJtion before this I Court is whether or not President Edgar Lungu has twice: held office as President of the Republic of Zambia. It was contended that Jn the face of it, I it would appear that President Lungu has twice held offic~ as President. However, that Article 106 (6) of the current Constitution prdvides guidance on this matter and clarifies Article 106 (3) as Article 106 (6t makes it clear that serving as President for a period not exceeding three y~ars is not i J22 , (2245) I deemed to be a full term. Therefore, that when considering t~e eligibility of i President Lungu for election as President in the 2021 electioh under Article i 106 (3), regard must be had to Article 106 (6) which speci~cally provides I i for what constitutes a full term. Hence, having served as 1resident for a • i penod of less than 3 years from 20th January, 2015 to 13th September, I 2016 President Lungu is currently serving his first ter1 in office as I President and as such, he is eligible to contest the Presidential elections in I 2021. It was submitted that the 2015 presidential elections substantially fall within Article 106 (5) (b) of the Constitution as amended ahd that to hold otherwise would amount to having undue regard to procedural technicalities prohibited by Article 118 (2) (e) of the current aonstitution. It was argued that the dictates of justice requir, a broad and purposive interpretation of Article 106 (5) (b) of the current Constitution that gives effect to the objectives of the Constitution as a wholr. In support of this proposition, the 1st Respondent cited the case of the Attorney General v Unity Dow12 Further, that a literal reading of Article 1d6 (5) (b) ofthe . current Constitution presents challenges in relation to othbr constitutional provisions such as Articles 106 (3) and 118 (2) (e). TherefoJe, that a J23 (2246) purposive interpretation must be employed to determine the intention of the Legislature. In pressing this point, Mr. Kalaluka, S.C., cited the case of Steven I Katuka and Law Association of Zambia v Attorney \.eneral and Others3 where we guided that regard to the context and historical origins of the relevant constitutional provisions in a case should be intelogated so as to ascertain the meaning and purpose of the particular constitutional provisions. He submitted that history leading to the enactmlent of Article 106 (3), 106 (5) (b) and 106 (6) of the current Constitution sh, ws that there I was in force Article 35 (2) in the Constitution prior to the 2016 amendment which had the same effect as the current Article 106 (3) of thJ Constitution'. frlm which bars a person who has twice held office as President contesting a Presidential election. And that the purpose of the 2016 ame\ndments was to clarify the position of a vice president or a new president jho served an unexpired term of office and also to give effect to the ~osition of a presidential running mate. Hence, it was never the intention lf Article 106 (5) (a) and (b) of the current Constitution to exclude any prior J1ections from the objectives of Article 106 (6) of the Constitution. ________ _J -------- J24 . (2247) To press this point further, reference was made to thb constitutional I provisions relating to the Vice President and Councillors to Lnderscore the I point that under the current Constitution, a full term is only reckoned as I such if it is for a duration of more than three years before ihe date of the next election. In supplementing the arguments by the Attorney Geneial, the learned I Solicitor General submitted that Article 106 (5) of the currert Constitution was akin to the repealed Article 35(2) of the Constitution whiGh existed prior I to the 2016 Constitutional amendments. He submitted that \rticle 106 is a build up to what amounts to a presidential tenure of office and it therefore cannot be read in isolation. And that the above mentiJned provision I remedies the problem that the repealed Article 35 caused as it did not define what amounted to a full term. Therefore, that Article 106 (5) of the current Constitution also remedies the mischief of what shou d happen to a president who serves an unexpired term of another president! It was argued that while President Lungu may have slrved twice as President, he has not served a full term as envisaged by Ajicle 106 (6) of I the current Constitution. And that he is eligible to present himself as a candidate for the 2021 presidential elections. I I I J25 I i / (2248) I The Respondent did not file any Skeleton Arguments. However, 2nd Counsel for the Respondent, Mr. Zimba, adopted thi submissions 2nd made on behalf of the Applicants and the 1st Respondent. In opposing the Applicants' Originating Summons, Co~nsel for the 1st I Interested Party, Mr. Sangwa, S.C., relied on the 1st Interested Party's I I Skeleton Arguments filed which were divided in two parts. Under the first ' limb, the 1st Interested Party raised four arguments relatinglto locus standi I and others which, as earlier stated, we shall not delve into. The second limb of the 1st Interest Party's written su,missions are in response to the two questions raised in the Originating Stiimmons. It was I submitted that the first question raised in the Originating Su~mons ought to be answered in the affirmative, that is to say, that Presibent Lungu has twice been elected to the office of President of Zambia. Therefore, that under the Constitution, he is not eligible to contest the 2621 presidential I election. And that the second question raised in the Originating Summons must be answered in the negative, that is to say, that u~der the current Constitution, President Lungu is not eligible for election ~s President for another five year term after his current term of office ends. j J26 (2249) In specific response to the first question raised in the amended Originating Summons, it was submitted that the Applicants had misconstrued Article 106 (3) and Article 106 (6) of the Consti~ution as these I provisions deal with the tenure of office of the President. That Article 106 (3) provides a limit to the number of times that a person ho has been submitted that the import of Article 106 (3) is that if a person has been elected as President, the period of holding office during eit~er the first or second term is inconsequential as the fact that he was electid to the office I of President on two occasions renders him ineligible to re-contest the elections for the third time. And that this has been the position since 1991. In support of this argument, the Repealed Article 35 of the cbnstitution was I I ci~. The 151 Interested Party also drew a comparison betwe~n Article 35 of I the 1991 Constitution and Article 35 of Act No. 18 of 1996. It ras submitted that under the former, the tenure of office was limited to two five year terms while under the latter, it was limited to the number of times ale was elected as President. It was contended that the latter position is Vyhat has been retained under Article 106 (3) and since President Lungu haslbeen elected I I I J27 (2250) twice to the office of President, in January, 2015 and September, 2016, he is ineligible to contest the 2021 general elections. To p~ess this point I further, it was argued that the question is not whether President Lungu has served two full terms or not. Rather, it is whether he hal been elected twice to the office of President to which the answer is in the Jffirmative. It was also submitted that Article 106 (6) of the curr+ Constitution must not be read in isolation but together with Article r06 (5) which prescribes what should happen in case of a vacancy created other than as provided under Article 81 And that the import of Article 116 (6) is that, if the vice president assumes the office of President accortling to Article Pf 106(5) (a) or if a person contests and wins the election as esident under Article 106(5) (b), the limit of tenure provided for in Article 1CD6(3) will apply if the person occupies the office of President for a minimum beriod of three years before the next election. Hence, if he serves for a peribd of less than three years, that period will not count. It was argued that the situations prescribed in Article 106 (5) and (6) do not cover President Lungu as they became effective from January, 2016 when the Constitution was amended. And that at that ti[me, President Lungu had already been elected to the office of President ona;e. It was J28 (2251) contended that had Parliament intended for the above cited provisions to I operate retroactively, it would have expressly provided so in the Constitution. That Article 106 (6) covers a person who is the Vice President and takes over the office of president, without being elected to that office, by v;rtue of hav;ng been the runn;ng mate of the elected rres;dent who vacates the office of president. Hence, the 1st Interested Party's contention was that since at the time President Lungu was first elected to the office of president in January, 2015 he was a Minister and not the 'Vice-President, he does not come within the ambit of Article 106 (6). It was submitted th$t the Applicants' action would have been sound if Parliament had made Article 106 (6) effective from 1st January, 2015. In response to the Applicants' Arguments in Supplrt of the 2nd question raised in the Originating Summons, the 1st Interested Party I submitted that by virtue of the provision in Article 1j 6 (3) of the Constitution, President Lungu is not eligible to contest the 2021 elections as his election to the office of president in January, 2015 colnts as his first election while his subsequent election in September, 2016 counts as his second election. And further, that Article 106 (6) does not operate J29 (2252) retroactively and therefore cannot operate to cover the perio!:J from January 2015 when President Lungu was first elected. In augmenting the 1st Interested Party's written supmissions, Mr. I Sangwa, S.C., submitted that it was not in dispute that Article 106 (6) does not cover President Lungu. Therefore, his contention wal that there is nothing for this Court to interpret in this matter. In response to the argument that this Court sho:uld adopt the i purposive approach and also take into account the natibnal values in interpreting the relevant constitutional provisions in this case, it was submitted that the provisions on the national values are not a license to make the Constitution malleable or to urge this Court to begi!n to rewrite the Constitution. Therefore, that any interpretation that makes Article 106 (6) applicable to President Lungu is untenable at law. It was submitted further that the application by the A!plicants seeks to undo the fundamental principle of constitutionalism whic~ is at the heart of a written constitution and which basically means limited gJvernment. In response to the argument that Article 106 is discrilinatory, it was i submitted that this is a moral argument and that there is al mechanism in place under Article 23 of the Constitution that protects perso~s against J30 (2253) discrimination which the Applicants can activate. Fu~her, that the Applicants must go before the High Court and not this Court lo demonstrate I how Article 106 (6) is discnminatory. And that rt is not the t•ponsibilrty of this Court, under the 'guise' of purposive interpretation, to rewrite the Constitution. As authority, the case of Attorney General ahd Speaker of I the National Assembly v. The People13 was cited. With regard to the argument that the literal approach tj constitutional interpretation has been done away with, it was submitted that there is no law to support that proposition as the law on constitutionJ1 interpretation was clearly set out by this Court that the starting poi~t is the literal I •. interpretation. And that it is only if the literal meaning is problematic that the court can adopt the purposive approach. As authority,I the Stephen I Katuka3 case was cited. It was argued that Article 106 is cl~ar and it does not lead to any absurdity. And further, that this provision muit be read in its entirety and not selectively. In response to the Applicants' reliance on the report 9f the Technical Committee on Drafting the Constitution, it was submitted that the Applicants had selectively read the report and that its perJsal shows that what is captured in the Constitution is what the Technical Colmmittee J31 I (2254) intended. And that there was no mistake or misunderstandihg or absurdity I as pages 283 and 284 of the report show that the Technical Committee I addressed its mind to the issue of limiting the tenure of th~ president and ' resolved to retain the provision in the Constitution that a p~rson who has twice held the office of president cannot go for another term rf office. Thus, that Article 106 (6) which applies to a specific office holder cannot be applied to another office holder. Therefore, Mr. Sangwa's bontention was I that the question whether President Lungu's first term of dffice should or should not count does not arise as there is no basis for suol a proposition as the situation before this Court is not covered by law. In response to the argument that there is deficiency in the transitional arrangements contained in the transitional provisions of the. Constitution, it was submitted that the Constitution (Amendment) Act ~o. 1 of 2016 f sufficiently dealt with the transitional arrangements. Further, hat Article 1 06 (1) to (3) dealt with the incumbent President. And that if the limitation on the presidential terms was not intended to apply to the incujbent, provision would have been made to the effect that the counting of,the number of I times one has held office would start with the 2016 constitutional amendments. And that such a provision was included under the Repealed J32 (2255) Article 35 when a limit on the presidential term was introdwced. To press ! this point further, it was argued that as a general rule, tine president is supposed to hold office for five years unless the tenure is prematurely terminated on account of the grounds provided for under Art!cle 106 (4) (a), (b) and (c). And that sub-article (5) provides for what shbuld happen in I such a situation. Further, that the only reason for the use, by the ~rafters of the f Constitution of the words "twice held office" in Article 106 (3) as opposed to "twice elected" as before the amendment, is that in the onstitution as amended, one can ascend to the office of president by either being elected l by the people or by virtue of the fact that they are vice pres)dent, a running mate. That before the amendment, no one could ascend to the office of president without being elected. In conclusion, State Counsel Sangwa urged us to dismiss the Originating Summons for lack of merit as the issues raiseq therein are not i justiciable before this Court. The Interested Party also filed an Affidavit in opposition and 2nd Skeleton Arguments which Co-Counsel, Mr. Mweemba and1 Mr. Phiri, J33 (2256) augmented with oral submissions. In the affidavit in opdosition, it was deposed that the Applicants were under a total misapprehJnsion over the eligibility of President Lungu in the 2021 Presidential el~ctions as the President has served two presidential terms and is therefore!, not eligible for election as President for another five year term. In the Skeleton Arguments, the Interested P~rty began by 2nd responding to the Applicants' argument that President LunJu's first term of less than three years in office must not count, it was co~tented that this ! ' argument finds no resonance with Article 106 (3) of the !constitution as ' President Lungu has twice held office as President Ther~fore, that he is not eligible for re-election in 2021 when his second term of 6ffice ends. In response to the argument that President Lungu wlll not have held I office twice in 2021 as he has not previously held office jor a full term of five years, the Interested Party referred us to Article 10~ (2) and argued 2nd that it does not provide for a president to only be deembd to have held office where the president holds office for a certain period lr for a period of five years. Therefore, the proposition that President Lu1gu must not be deemed to have held office for the period before Januar~, 2016 when 5th J34 . (2257) the Constitution as amended came into effect, is not sustlinable as it is I nothing more than logical fallacy. I Reference was then made to Article 106 (3) which provides that a I person who has twice held office as president is not eligible; for election as j president, it was submitted that there is no ambiguity in tha.t provision and I neither is there any reference to a term of office. j It was contended that Article 106 (6) applies to a vice president who I had been a running mate and is in the office of president for a period less I than three years. Therefore, that had it been the intention of the drafters I that Article 106 (6) should apply to President Lungu's circumstances, such (r). intention would have been clearly articulated in Article 106 Reference was also made to Article 106 (2), which, bccording to the I Interested Party, further clarifies what is meant by ttte term "holding 2nd I office" under Article 106 (3). It was contended that the\ length of time I served is not a consideration in determining whether a president has held I office provided that it is within the legal parameters. It was submitted that Article 106 (6) (b) does not have retrospective effect. Hence, it cannot be relied upon to support the Applibants' argument J35 (2258) in favour of President Lungu's eligibility to contest the 2021 elections. Reference was made to Section 7 (1) of the Constitution Act No. 1 of 2016 which, according to the 2nd Interested Party, recognises the I presidential term of office under the pre-amended Constitution. It was I submitted that Section 7 (1) is couched in very clear terms and without any I ambiguity. It was submitted that in January, 2015 when Presidenti Lungu took up and served the unexpired term of the late President Sata, tlat was the first time he held office as president. And that his second term @f holding office I . started running from 13th September, 2016. j Further, that the provisions of Article 106 (6) (b) of t~e Constitution, vis-a-vis the term of office of less than three years not cdunting as a full ! presidential term of office apply to a sitting Vice Presidenf who assumes office under the provisions of Article 106 (5) (a) after the ikffective date of the January, 2016 Constitutional amendments or a perso~ elected to the office of president in accordance with Article 106 (5) (b) where the Vice President is unable to take up the office of president f<l some reason. Therefore, that the scenario presented by the current cJse has not yet arisen in Zambia and is yet to arise prospectively. TherefoJie, that the ' J36 (2259) length of President Lungu's first term of office which he served from January 2015 to August 2016 does not come within the puliew of Article [ 106 vis-a-vis whether such a term should be deemed to h,ve been a full term of office. : As authority for the argument that the law do~s not apply retrospectively unless expressly so stated, the case of Nala v standard Chartered Bank of Zambia14 was cited. Therefore, that thel argument that the provision relating to the length of the unexpired term of al president who vacates office should apply to President Lungu is not Jenable at law because the said provision did not exist in January, 2015 ~hen President i Lungu took office. In pressing this point further, the Interested Party ontended that 2nd for a person to qualify under Article 106 (6) (b), that pers, n has to have been elected to the office of President as a result of a !residential by election held in accordance with Article 106 (5) (b). That, Jowever, that is not the case in the current case as the January, 2015 !residential by election was held under the provisions of the Constitution (Alendment) Act ! No. 18 of 1996. Hence, the Applicants' argument that Prerident Lungu is eligible to contest the 2021 election on the basis of Article 106 (6) (b) J37 , (2260) cannot be sustained as the 'three years exemption' scenario ioes not apply I J to the current case. In response to the Applicants' submission as to wha · constitutes a I presidential term of office, it was submitted that it was vitallto first give a I definition of the word "term", which, according to the lntrrested Party, 2nd means to be sworn into office and serve as president until tHe next person I is sworn into that office. As authority, Article 106 (2) was cited. Further, that although it is correct that the presidential "term of office" is five years, however, that a "term of office" was not necessarily the sahe thing as a period that the president is deemed to "hold office" as a pJrson can hold office for a period of less than five years. It was contended that the provision in Article 106 (3) / hich restricts the number of times a person can hold the office of Presiden;t does not use i the word "term" but rather, it uses the term "held office". A1d that had the Constitution in Article 106 (3) used the words "term of office'J'.in place of the words "held office", then President Lungu could presuma ly contest the election. j J38 I I (2261> It was submitted that the restriction on holding office ib contained in Article 106 (2) of the Constitution. Therefore, the restrictio~ under Article I 106 (3) has nothing to do with the question whether or not a;president has served a 'term of office'. Rather, it is about whether a presi&ent has 'held office'. In pressing this point further, it was argued that if the President resigned from his office today, he would have held office notwithstanding that he would not have served a period of five years in office .. I In conclusion, it was submitted that the first questio~ raised in the Originating Summons must be answered in the affirmativJ because not only has President Lungu twice held office but also the provitons of Article 106 (6) do not apply to him. And that the second questio raised in the Originating Summons must be answered in the negative as President Lungu is not eligible for re-election as president for anoth •r term of five years after 2021. In augmenting the Interested Party's written submisrons, Counsel 2nct for the Interested Party, Mr. Mweemba, argued that since President 2nd al Lungu has neither been Vice President nor was he elected President in J39 i I (2262) lieu of the Vice President failing to assume the office of bresident, the provisions of Article 106 (5) (a) (b) and 106 (6) do not applyl to him. That the situation envisaged therein has not yet arisen in this country and hence, any argument that is based on the said situation is sbeculative as conjecture and is superfluous. In response to the argument that the literal rule of interpretation has I been ousted by Articles 8, 9 and 267 of the Constitution, Counsel disagreed with this proposition. He cited the case of Katuka and Another v Attorney General and Others3 in which, according to him, this Court guided on how to interpret the Constitution. Counsel subjitted that the literal rule is the primary rule of the canons of interpretation] And that the purposive approach in statutory interpretation should only Je resorted to when there is ambiguity and absurdity in the provision of a stalute. In response to the argument that the legislature llossed over President Lungu's situation and disadvantaged him, it was Jubmitted that this argument was not tenable as the Constitution is the suprJme law which is a creature of the people and it is superior to the Legislature) And that the Applicants' argument relating to discrimination should be rejJcted because the Applicants have not demonstrated how President Lungu Jas being J40 (2263) discriminated against by the constitutional provisions. Further, that even if that was the case, the High Court would be the right forum +fore which to raise these issues, under Article 28 as read together with Rule 2 of Statutory Instrument No. 156 of 1969, and not this Court. j In response to the argument that the 'inherited' term shluld not count . I in the case of President Lungu, Mr. Mweemba submitted that there is a clear distinction between Article 35 (2) of the Constitution (Amendment) Act No. 18 of 1996 and Article 106 (3), of the current Co1stitution. He elaborated that whereas Article 35 (2) talked about being 'twle elected' as president, Article 106 talks about 'holding office'. Therefore his contention I was that under Article 106 (3), once a person holds oijice twice as president that was the end, regardless of the duration that p,rson has held the office. In pressing this point, Counsel cited Articles 81 and 107 of the current Constitution. In response to the argument that it is unjust that onl¥ one person (President Lungu) should be excluded from the provikions of the Constitution, it was submitted that this argument is not tenabll as the issue is not about an individual. Rather, it is about the office of PreJident. J41 I (22s4> In conclusion, it was submitted that the first questionj raised in the al Originating Summons must be answered in the affirmative going by the I provisions of Article 106 (3), President Lungu has twice held /office and the provisions of that Article do not apply to him. Further, that th'ere is nothing I , I ambiguous or absurd or discriminatory about Article 106 (3) as that is simply the law. And that this Court cannot be invited tb amend the Constitution as it enjoys no such powers. In supplementing Mr. Mweemba's oral submissions, Mrl. Phiri, added that no compelling argument has been advanced by the Applicants to I warrant the use of the purposive rule of interpretation in this ase as there was no absurdity to be addressed in the provisions of Article 106 (5) and (6) which refer to a Vice President. And therefore, that the literal rule of interpretation suffices. In Reply, Mr. Bwalya, relied on the Applicants' written sl bmissions in Reply which he augmented with oral submissions. It was sutimitted that in I order to establish whether President Lungu has served two full terms, the Court has to consider whether his first term of office was a full term in accordance with Article 106 of the Constitution. J42 . (2265) In response to the 1s1 Interested Party's contention that Prbsident Lungu i i has twice been elected to the office of President, it was subritted that the continued reference to the phrase "twice elected" under the rE:lpealed Article 35 (2) of the Constitution by the 1st Interested Party was miiconceived as ! Article 106 (3) of the Constitution as amended uses the te1m "twice held office". And that the point of departure in the current legal re!gime is that a person is not deemed to have twice held office if he has not lerved two full terms as defined by the Constitution. With regard to the 1st Interested Party's argument that Article 106(6) had no retrospective or retroactive effect to cover the period when President Lungu was first elected from January, 2015 it was submitted that the 1s1 Interested Party did not proffer any authoritative dJfinition of the terms "retrospective" or "retroactive" nor did they show hot these terms were applied in this particular case. Reference was then' made to the definition of the term "retrospectivity" by the learned authors, of Craies on Legislation, paragraph 10.3.1 where it is stated as follows:- J "Legislation is retrospective if it has the effect in relation to matter arising I before it was enacted or made." ! J43 (2266) The Applicants also cited a number of English casJs which give I meaning of retrospective operation of legislation. These include:- ! I 1. L'Office Cherifen des Phosphate and Another v 1Yamashita - I Shinnon Steamship Co. Ltd, The Boucraa15 where. it was stated I that:- I "A statute is deemed to be retrospective, which !kes away or impairs any vested right acquired under existing law~, or creates a ' new obligation, or imposes a new duty, or attaches aJnew disability in respect to transactions or considerations already past." 2. Sunshine Porcelain Potteries Pty Ltd v Nash16 where it was put' thus:- "Generally, there is a strong presumption that a legislLure does not intend to impose a new liability in respect of something that has already happened, because generally it would not be ~easonable for a legislature to do that .... But this presumption may be[overcome not only by express words in the Act but also by circumstances sufficiently strong to displace it." In pressing this point further, it was submitted that retrosP,ectivity is a I presumption that may be rebutted. As authority, the casJ of Lauri v Renad17 was cited where it was stated that- I "It is a fundamental rule of English law that no statute shall be construed so as to have retrospective operation, unless its languag~ is such as plainly as to require such construction. And the same Jrule involves another subordinate rule, to the effect that a statute is not to l:ie construed J44 (2267) l [ so as to have greater retrospective operation than its larjguage renders necessary." ! I i It was submitted that a statute is not retrospective wh:ich has effect i only for the future but which relies in part on events that oc6urred prior to the passing of the statute. In support of this proposnion, we rere urged to adopt the test suggested in L'Office Cherifen des Phosphates and Another v Yamashita-Shinnon Steamship Co Ltd, the Boucraa15 in which Lord Mustill stated as follows: "What degree of unfairness (if any) might be thought to be suffered if the provision were applied with retrospective effect, and that !the greater the unfairness the stronger the presumption that Parliament Would not have intended it, and therefore the greater the clarity of langu~ge required to rebut it." It was submitted that the above approach accords with the general trend of the courts of having regard to all relevant circLmstances as opposed to the rigid application of formulaic presumpJions and the application of common sense in the search for legislative inJention in each I context. It was argued that in the present case, the presu(nption against ' retrospective application of the law does not arise for three rdasons:- J45 i I (2268) (i) Firstly, that the determination as to eligibility is aJ to the future only although it draws partly on facts that are antJcedent to the passing of the Constitutional amendments in question; (ii) Secondly, that the term of office in relatiJn to which interpretation is sought was not served or dompleted by President Lungu on the date that the Constitutio?al provisions sought to be relied upon in this case came into forye, and that I (iii) Thirdly, that the presumption against retrospectivit~ only applies in cases where accrued rights are being impaired. In response to the argument that the circumstances in which I President Lungu assumed office are not covered by Article 106 (5), it wa~ ' + ! submitted that the imprecise drafting or the lack of adequate transitionai provisions to deal with the peculiar drcumstances of incumbent President have led to the uncertainty in the interpretation of the current Constitution. Further, that while the powers, privileges, duties and functions of the President are taken care of by Section 7 of the Constitution of Zambia Act No.1 of 2016, provisions dealing with tenure anb vacancy are ' not provided for. And that it is for this reason that this Court, in stating the legislative intent of Parliament in the Stephen Katuka3 case, !was prepared to hold that a Vice President who was a presidential ap~ointee could I ' automatically assume the presidency in the event that a vacancy arose in the office of the president before the 2016 election. And that t~e absence of J46 (2269) express transitional provisions, calls upon this Court to discern whether the one year six months period that President Lungu served in 1is first term is considered a full term for purposes of his eligibility in the elections to be held in 2021. As to the definition of a transitional provision and what [its purpose is, the following authorities were cited:- 1. Regina v Secretary of State for Social Security Ex parte Britnell (Alan)18 where Lord Keith observed as folldws:- "As Staughton LJ observed in the Court of Appeal, it is not possible to give a definitive description of what constitutes a transitional provision. In Thornton on Legislative Drafting it is said: "The function of a transitional provision is that its operation is expected to be temporary, in that it becomes spent when all past circumstances with which it is designed to deal have been dealt with, while the primary legislation ccintinues to deal indefinitely with the new circumstances whictt arise after its passage." 2. The learned authors of Bennion on Statutory Interpretation at section 96 where they state that:- "Where an Act contained substantive amending or repealing enactment, it commonly also includes transitional p~ovisions which regulate the coming into operation of those enactments and modify their effect during the period of transition. Where t~e Act failed to include such provisions expressly, the court is required to draw such inference as to the intended transitional arrangelnents as, in J47 (2270) the light of the interpretative criteria, it considers Parliament to have intended." · 3. The learned authors of Craies on Legislation, Paragraphs 10.1.26 and 10.1.27, respectively, where they state/ that:- 10.1.26 "It is necessary when one legislative system ends and another begins to enact special rules in relation to factual ca~es that straddle the transition. Sometimes the old law is continuedj for transitional cases, and sometimes the new law is applied; in either event modifications may be necessary ... " 10.1.27 "In the absence of express transitional provisions the courts will have to attempt to discern what Parliament must have intended in respect of matters arising partly before and partly after the ! commencement of a provision, or which arose before commencement but fall to be addressed after commencement. This I is not always easy." It was submitted that in the circumstances of this case, the literal interpretation method which the 1s1 and 2nct Interested Partieb have chosen is of little help as it does not address the factual circumstancls that the first term that President Lungu served was for a period of less thhn three years. ! ' And that the law was altered half way through his first term. !Therefore, that this Court should adopt the purposive approach to resolve thk issues raised in this case. In support of this proposition, Counsel quoted ekensively from the case of Jones v Wrotham Pack Estate 9 Oliver Ashwlrth 1 , J48 (2271) v (Holdings) Ltd v Ballard (Kent) Ltd 20 and R (Quintaville Secretary of I State for Health21 . It was also submitted that considerable effort and resource is being spent on the interpretation of Article 106(6) of the ConstitutiJoln because the provision is of doubtful application to the peculiar case jhich has now arisen. And that the task of this Court is to give effect to the purpose and I intention of Parliament for enacting this provision, which iF that, a duly elected President who has served the unexpired term of his bredecessor is entitled to re-contest the presidency after being elected twic+s long as the unexpired term of the predecessor was for a period of less than three years. In conclusion, it was submitted that the purposive appr, ach has been in use by our courts and is part of the jurisprudence of this jlrisdiction. As authority, the case of The Attorney General and The ~ovement for Multiparty Democracy v Mbikusita Lewanika and Othets22 was cited where the Supreme Court observed that:- / "However, it is clear from the Shartz and Northman cases Jhat the present trend is to move away from the rule of literal interpretatio'ri to 'purposive approach' in order to promote the general legislative purpose underlying the provision. Had the learned trial judge adopted the purp'.osive approach she would undoubtedly have come to a different conclusion. It follows, therefore that whenever the strict interpretation of a statute ~ives rise to J49 I (2212, unreasonable and an unjust situation, it is our view that judges can and should use their good common sense to remedy it - tha't is by reading words in if necessary - so as to do what parliament would have done had they had the situation in mind." Therefore, that using the purposive interpretation of Article 106 (5) and Article 106 (6) as read together with Article 106 (3), PreJident Lungu is eligible to contest the 2021 presidential election subject to Ajicle 100. In augmenting the Applicants' written submissions ,in Reply, Mr. i ' Bwalya reiterated what was submitted in the Applic~nts' skeleton i arguments, the oral submissions by Counsel for the Applicants and the written submissions in Reply. Counsel however, added that Jlthough Article 106 (6) refers to a Vice President who was the running mat1 to a president and a person elected after the expiration of the period within which the Speaker exercises the functions of the president, this proiision does not state how a person like President Lungu who served an inherited term of 10If less than three years is to be treated in relation to Article (3). And that more so that a presidential term of office is five years. Mr. Bwalya submitted that the Applicants are not trying to enforce any right under the Bill of Rights. Rather, the Applicants are siml;)ly urging this JSO (2273) Court to apply the principle of non-discrimination in its interpretation of the Constitution and in accordance with the Bill of Rights. ' In supplementing Mr. Bwalya's oral submissions, Mr. Jere, submitted that Article 106 of the Constitution applies to President Lungl because had I it been the intention of the drafters to exclude him from its application, there tb would have been a specific provision in the Constitution exclude him from benefitting from the 2016 constitutional amendment We have seriously considered the Applicants' Amended Originating Summons together with the Affidavit in Support, the 1st Respondent's Affidavit in Response, the 1•1 and 2nd Interested Parties' Affidavits in Opposition, the respective parties' Skeleton Arguments and the oral l submissions and the authorities cited by the learned C unsel for the respective parties. The Applicants have posed two questionk and we shall I address them in the order in which they are presented. We begin with the first question. Going by the parties' respective submissi0ns, the main I question/issue is whether President Edgar Chagwa Lungu have served two full terms for purposes of Article 106 (3) as read with Article 106 (6) of the Constitution of Zambia at the expiry of his current term. J51 (2274) I Before we proceed to consider the question posed a~ove, we note I that although the Applicants argued in their submissions that this matter has been brought pursuant to Article 128 (1) (a), which gites this Court jurisdiction to interpret constitutional provisions, the manJer the above question has been couched personalizes the issue in thaJ it targets the incumbent President as an individual. We do not encourlge this trend because the framing of the questions for this Court's in,terpretation of constitutional provisions should not target any individual as it is meant for general application as the interpretation is binding on eve~ person in the Republic. What we are dealing with in the present case ls the office of President. We of course understand what the question is Jr what it ought to have been and what it aims at, namely, the office of Presi~ent. · The question therefore is or ought fo have been fram~d as follows: - Whether in terms of Article 106 (3) and (6), a presidential term of office I that ran from 25th January, 2015 to 131 September, 201! and straddled h two constitutional regimes can or should be considered as a full term? However before we proceed to consider the above reframed I question, there are also two other peripheral questions that rave been J52 (2275) raised that go to the jurisdiction of this Court and as such must first be considered. These are:- 1. Whether or not the Applicants have locus standi to bring this matter; and 2. Whether or not the two questions posed in the Amended Originating ' Summons have been prematurely brought on the grbund that they are not ripe for determination. As can be seen from the Applicants' submissions in r sponse to the two peripheral issues of locus standi and ripeness of the jatter raised by the 1st Interested Party in its written submissions, they are bhallenging the appropriateness or the competence of the 1st lntetested Party's submissions which raised the two issues. The main co~tention by the Applicants is that it is not competent for the 1•1 Interested P~rty to raise the I two issues as these are the same issues that the 1st Interested Party had I raised in their application before a single Judge of this Court and which application the single Judge dismissed. And that although tJe 1st Interested Party had appealed to the full Court against the Ruling of t~e single Judge, the 1st Interested Party discontinued the same before it wasJheard. Hence, I J53 (2276) there is no appeal pending against the said Ruling. foJs such, it is incompetent for the 1st Interested Party to raise the same issLes before the full Court through their Skeleton arguments. The response by Counsel for the 151 Interested Partj was that the ! above issues are competently before this Court because thi single Judge did not address the issues on the merit as the preliminary apblication which raised the two issues was dismissed without being heard or determined on its merits. Further, that the issues of locus standi and ripeness of a matter ! are questions of law which any court can raise and address even where the I parties have not raised them. I We have considered the above submissions. The question is whether in the circumstances of this case, it is competent for the 1st 1hterested Party I to raise the issues of locus standi and ripeness of the matter in this case which were dismissed by a single Judge and the Ruling/ has not been I reversed. Perusal of the record has shown that after the Applficants filed this action against the 1st Respondent, the P 1 and Interested Parties applied 2nd before a single Judge of this Court for joinder and they were joined to this J54 (2277) action. Thereafter, the 1st Interested Party filed a summons to dismiss the action on, among other grounds, that the Applicants did not have locus standi to bring this action and that the claim in the Amendld Originating ' Summons was not ripe for determination. The record also shows that subsequently, the single Judge issued Orders for Directions by which, among others, the 1st Interested Party was l directed to serve its summons, affidavit in support and arguments in support of its application by 23rd March, 2017. However, the 151 Interested Party did not comply with the directions of the single Judgi. Because of the 1•1 Interested Party's failure to comply with the said directions, the Applicants applied to dismiss the 1'1 Interested Party's apP,lication. In the i affidavit in opposition to the Applicants' application td dismiss that application, the leamed Counsel for the 1• Interested Part1 deposed, inter a/ia, that the failure to comply with the directions of the sirlgle Judge was not deliberate but because at the time of settling the direbtions, Counsel had underestimated his case load. In particular, that he wJs involved in a ! matter before the Commercial Division of the High Court which had not been tried for nearly ten years and which involved seveTI long witness statements and documents which he had to review. That as/a result of this, (2278) his efforts to comply with the directions of the single Judge of this Court were derailed. The learned single Judge heard the application to dismiss the 1st Interested Party's application and, in the Ruling dated 31st ~ay, 2017 the single Judge dismissed the 1st Interested Party's application Jto dismiss the Applicants' action. On 111 August, 2017 the learned Counsel for the 1st 111terested Party h i then filed before the full Court, the 1st Interested Party's Summons on Appeal against the Ruling of the single Judge which dismissed its application. However, the 1st Interested Party later filed a Nbtice of Motion to Discontinue the Summons on Appeal. When the mattJr came up for hearing on subsequent dates, the 1st Interested Party did, not make any comments as regards its application but raised the two issues in their Skeleton Argument in opposition of the main matter. ' The question therefore is whether in the circumstan,es of this case as outlined above, it is competent for the 1st Interested Pary to now raise the two issues before us on the ground that the two issues were not interrogated by the single Judge as the application was disJissed for want J56 (2279) of prosecution. And on ground that the Court can raise thesJ issues on its own motion even where the parties did not raise them. We must point out that we are rather perplexed l::ly the modus operandi or method of procedure applied by the 1st lnt~rested Party I because following the dismissal of its application by the single Judge, they did follow the correct procedure for challenging the decisiot of the single Judge which dismissed their application. For unexplained re~son(s), the 1st I Interested Party and by its own motion, saw it fit to discontin~e their appeal I i before it was determined by filing a Notice to discontinue their appeal. I Therefore, it was highly irregular for the 1st Interested Party to turn around and re-introduce the same issues that they discontinued and ask the Court to consider and determine them. It is a practice that this cdurt cannot and I would not want to see or encourage litigants and lawyers to adopt as I strictly speaking, this amounts to sneaking in issues that tere and stand dismissed through the back door and which they voluntarilty' discontinued. I This could amount to abuse of the court process. I Ordinarily, we would have dismissed the two issues. However, since I the issues of locus standi and ripeness of a matter go to ttie jurisdiction of I the Court in this matter, we will address them. We also wish/to observe that J57 (2280) the parties made lengthy submissions and cited auth1rities for our ro consideration which we do not intend to reflect here. Suffice say that we have read these and we shall take them into account in arriving at our J decision on the two issues. j ' As regards locus standi, the modern approach to1 constitutional matters supports the extended as opposed to the narrow "own interest" standing favoured by the common law. As such Article 43 (2) (a) of the Constitution as amended, includes among the tabulated relponsibilities of I citizens, the following: "A citizen shall endeavour toj acquire basic understanding of this Constitution and promote its ideals nd objectives". In our considered view, one of the ways in which citizens dan acquire this understanding and be able to promote ~s ideals and +ectives is by seeking authoritative interpretation of the provisions in the Constitution. · Nevertheless, access to the Court is circumscribed oy section 11 of the Constitutional Court Act No. 8 of 2016 in order to proteJ the Court from busy bodies. Section 11 provides that: ! "11(1) The parties to a matter before the Court may/appear in person or be represented and appear by a practitioner. (2) Subject to subsection (1), court proceedings 1may be instituted by- J58 (2281) (a} a person acting on behalf of another person whJ\:> cannot act in their own name; (b} a person acting as a member of, or in the interest of, a group or class of persons; (c} a person acting in the public interest; or (d} an association acting in the interest of one or more of its members" It follows that whether the litigants in any particular case have sufficient standing is a matter of both fact and law that must be determined on a case by case basis. In the present case, the issue raised being the ! interpretation of Article 106 brought under Article 128 (3) of t~e Constitution as amended is one of public interest. We therefore find tHat by virtue of I Article 43 (2) (a) of the Constitution as amended read with Section 11 (2) (c) of the Constitutional Court Act, the Applicants do rave sufficient standing to bring this matter for interpretation of the, Constitutional provisions in question. As regards the issue whether or not this matter is ripe for determination, our firm view is that a matter of interpretatio~ of Article 106 in relation to the presidential term that straddled two constitLtional regimes from 25th January, 2015 to 13th September, 2016 is not prelature but ripe I for consideration. This is because the issue of eligibility is n0t only triggered by the nomination process as provided for by the Constitutidn. Therefore, a J59 · (2282) person need not wait until the nomination period comjences before I seeking an interpretation of Article 106. Coming now to the main matter and the questions t~at have been I posed for our interpretation in the amended Originating Sumrhons, we have found it imperative to first begin by considering the parties' lontentions as regards the cannons of interpretation that the Court s~ould apply in interpreting Article 106 (3) and (6) and other provisions of t~e Constitution related to the subject matter set for oor determination. This/ is so because I we have two conflicting positions by the parties as to the canon of I interpretation that we should apply in this matter. l: On one hand, the Applicants and the 1st Responden. have taken a / common position that this Court should adopt a purposive! or teleological I approach in interpreting Article 106 (3) and (6) of the Constitution. That this is so because in interpreting any provision of the Constitutibn, this Court is enjoined by Articles 9 and 267 to take into account the natibnal values and principles enshrined in Article 8 of the Constitution and in Jccordance with the Bill of Rights. j J60 (2283) To support their position that the purposive approach should be applied, the sum total of the Applicants' and the 1st Respondent's of' submission was that adopting a literal or textual approach interpretation would lead to an absurd and unjust outcome. In this regard, ~hey cited the ' i case of Lewanika and Others v Chiluba2 as an example oj where courts in this jurisdiction have overlooked the literal or textual approach in constitutional interpretation. The reasons given for the above proposition can be summed up as follows- first, that a simplistic reading would result in this clurt not taking into account how the incumbent President initially assumeJ office before the Constitution as amended was enacted; second, that thl literal rule of I . interpreting the Constitution has been ousted by the Constitution itself as can be seen from the net effect of Articles 8, 9 and 267 of t~e Constitution i as amended. They argued that applying the literal rule of interpretation would be at variance with the inbuilt mechanism co~tained in the I Constitution for its interpretation. Third, that the standard th~t is applicable in the international cu~ure of constitutional jurisprudence i, the purposive and generous approach and not the restrictive/ordinary canon of I interpretation. J61 (2284) In support of the above contentions, the Applicants and the 1st Respondent cited a number of authorities including the case of S v Mhlungu1 and the case of Katuka and Another v Attorney/ General and Others • / Fourth, that a literal interpretation would lead to absuJdity as only a broad and inclusive approach to interpretation will give/ effeci to the objectives of the Constitution as a whole. And, that a purp9sive approach would allow the Court to take into account the context and 1istorical origin of the relevant constitutional provisions in order for the coJrt to ascertain the intention of the Legislature in enacting them. Counsel ci~ed the case of Attorney General v Unity Dow12 and the case of Steven Kltuka and Law Association of Zambia v Attorney General and Others3 iJ support of this argument. The 1st and 2nd Interested Parties on the other hand, have taken the position that this Court should apply the literal rule of interpretation as the I purposive approach is only resorted to where applying the ordinary I meaning of the words used in any provision/legislation resu'its in an absurd meaning or where they are ambiguous. / I J62 (2285) The sum total of the 1st and 2nd Interested Parties1 p9sition that this ; Court should apply the literal approach in interpreting Article 106 (3) and (6) I is first, that the starting point of interpretation for all constituti~nal provisions ! is the literal rule as the purposive approach is only resorteJ to where the I literal rule results in an absurd meaning being given to the constitutional provision. As such the position taken by the Applicanti and the 1s1 Respondent that the literal rule has been discarded is jot supported; secondly! that taking into account the national values and principles cannot be and is not a license for taking the purposive approach as this would result in making the Constitution malleable and would alsr result in re writing the Constitution instead of merely interpreting it; trrdly that the literal rule of construing constitutional provisions is the primary rule of interpretation and that the purposive approach is only resortld to where an I ambiguity or absurdity arises. That in the current case, nJ ambiguity or absurdity has arisen. We have seriously considered the above submissions and the I authorities cited. We wish to observe at this stage that this is not the first case in which we have been asked and indeed have pronounced ourselves on the canon on interpretation of the Constitution as amendeb. We did so J63 (2286) in our judgment in Steven Katuka and Law Association of ambia v The I Attorney General and Ngosa Simbyakula and 63 Othe.J.s3 which we I ! note, the parties also cited in their respective submissions. In that case, we stated that:- "As a starting point, we wish to observe that Article 267 (11 enjoins us to interpret the Constitution in accordance with the Bill of Rights and in a ' manner that promotes its purposes, values and principles. Tt,is entails that this Court must have in mind the broad objects and values that underlie any particular subject matter." We went on to state that:- "In terms of the general or guiding principles of interpretati n, the starting point in interpreting words or provisions of the Constitution.I or indeed any statute, is to first consider the literal or ordinary meaning of the words and articles that touch on the issue or provision in contention." I l I We explained that this is premised on the principle ihat words or provi~ons in the constitution or statute must not be read in rolation. We then went on to state that it is only when the ordinary mea:ning leads to I absurdity that the purposive approach should be resorted tr. We further explained that the purposive approach entails adopting a construction or interpretation that promotes the general legislative purpose +ich requires the court to ascertain the meaning and purpose of the prlvision having regard to the context and historical origins, where necessary ~nd that this l J64 (2287) exercise would sometimes require reading into the provision what the I I Legislature had intended. I We have reiterated the above position in our later decisions including ! in the following cases: i. Lubunda Ngala and Jason Chulu v An~i-Corruption Commission23 ; J Zambia National Commercial Bank PLC v Martin Musonda 11. and 58 Others24 I . The sum total of what we stated in the above two cited caJes is that the purposive rule of interpretation is resorted to where the literal rule of interpretation results in absurdity or where it is not possible to decipher I what the Legislature intended from the words used in the stat'ute itself. I We also referred to a decision of the Supreme Couj of the United States of America in the South Dakota v North Carolina2 case in which , that Court stated that no single provision of the constitution should be segregated from the others and that all provisions bearing on a particular subject must be considered and taken into account inl interpreting a ' provision of the constitution so as to give effect to the gre1ter purpose of I the instrument. J65 i (2288) In Milford Maambo and Others v The People26 we stated that the , primary principle in interpreting the constitution is that the mlaning of the text should be derived from the plain meaning of the languade used. Only when there is ambiguity or where a literal interpretation will lead to absurdity should other principles of interpretation be resorted to. We also stated that a further principle of constitutional interpretation is that all the relevant provisions bearing on the subject for interpretation l should be considered together as a whole in order to givei effect to the objective of the Constitution. This means that no one provision of the I Constitution should be segregated from the others and considered alone. The sum total of our conclusions in the above cited cases was that we would be guided and apply the above principles in dJtermining the ! issues that were before us. j Therefore, having reviewed our earlier decisions and other authorities cited by the parties, we reiterate our position that the st1rting point in interpreting the constitutional provisions in question in this matter is the literal rule of interpretation. And that only where this results in an absurd or ambiguous meaning shall we resort to the purposive approadh. ; J66 (2289) ' I It follows that the Applicants' and 1"1 Respondent's position that we I should apply the purposive approach without first having re/course to the literal canon of interpretation is not tenable. The correct position as clearly I shown by the authorities cited above is that when interpreting the Constitution or other Statutes, the starting point is to conJider the plain I language in the provision itself unless it results in an absurdity or is I ambiguous. As regards the argument that we would be deparng from the Constitution's inbuilt mechanism for its interpretation provided under I Articles 8, 9 and 267 if we apply the literal rule as opposed to the purposive rule of interpretation, our brief response is that a proper tding of these Articles does not in any way exclude the literal rule of inter~retation. What I Articles 8, 9 and 267 do is to enjoin us to interpret the Constitution as ~ amended in accordance with the Bill of Rights and in manner that promotes its purpose, values and principles and permits th/e development of the law and contributes to good governance. In arriving at the above position, we did take into accot:Jnt the decision of the Supreme Court relied upon by the Applicants to suppJrt their position in the case of Lewanika and Others v Chiluba2 They argJed that that . I J67 . (2290) decision is an example of instances where the Courts in this jurisdiction ' have overlooked the literal rule of constitutional interpretatidn. However, a proper reading of that judgment shows clearly that the Su+me Court did state that the trial Judge's application of the literal rule of interpretation was I sound and correct but guided that where strict interpretation1ives rise to an unreasonable and unjust situation, the purposive appro ch should be I adopted and if necessary, words read in so as to achieve tat Parliament would have done had they had the situation in mind. It i$ therefore not I correct to say that the Supreme Court overlooked the literal rule of interpretation as it pnly adopted the purposive approach upon arriving at the conclusion that the literal rule resulted in an unreasonJble and unjust situation. Having pronounced ourselves on the canon of interpretation to be i applied in interpreting Article 106 (3) and (6) of the <tonstitution as amended, we now come to the first question which we ~ave reframed above. The question is thus; whether in terms of Article 106 (3) and (6), a presidential term of office that ran from 25" January, 2015 t, 13• J68 (2291) I September, 2016 and straddled two constitutional regimes lean or should I be considered as a full term? To ably answer this question, we have found it imperative at this I stage to in brief, give a historical background in terms of our count,y's constitutional development and in this regard, we shall pay particular attention to the presidential tenure of office and vacancy i~ the office of I president. We shall start with the 1964 Constitution, the Independence Constitution as it is commonly referred to. . Section 34 as read together with Section 83(3) and selion 37 of the 1964 Constitution provided for tenure of office and what shJuld happen if 3t there was a vacancy in the office of the president. Section provided as follows:- Section 34- "A person assuming the office of President in accordance with the I provisions of this Constitution shall, unless he ceases to hold office by I virtue of the provisions of section 35 or 36 of this Constitutiron or resigns, continue in office until the person elected at the next electio of President following a dissolution of Parliament assumes office." I Section 83 (3)- J69 (2292) "Subject to the provisions of subsection (4) of this section, Parliament, unless sooner dissolved, shall continue for five years fron, the date of its first sitting after any dissolution and shall then stand dissolired." I Section 37 of the 1964 Constitution provided for what would happen if there was a vacancy in the office of president. This never afo se while this Constitutional regime was in place. However, it is interesting to note that the 1964 Constilution went as far as to provide who the first President would be by name. Ir also went on to deem him to have assumed office at the coming into op~ration of that Constitution. Therefore, the concept of 'deeming' in the 2016 Constitution ' is not at all a novel situation in our constitutional set ups. \ In 1973, Zambia enacted another Constitution which Jade a radical change from a multiparty democracy into a one party State. The five (5) year tenure for office of the President was however, ret~ined. Zambia continued as a one party State until 1991 when there was Jnother radical change to our Constitution as multiparty democracy was reirroduced. Of particular interest to the current case is the provision on ten1re of office of I president which was provided for under Article 35. I Article 35 of the 1991 Constitution provided as follows:- J70 (2293) "(1) Subject to clauses (2) and (4) every President shall i:iold office for a period of five years. , (2) After the commencement of this Constitution no pekon who holds or has held office as President for two terms of five ybars each, shall be eligible for re-election to that office. j (3) For the purposes of clause (2) the period of two terrhs of five years each shall be computed from the commencement of this I Constitution. (4) The President may, at any time by writing under his ~and addressed to the Speaker of the National Assembly resign his office. (5) A person assuming the office of the President in accdrdance with the Constitution shall unless - (a) he resigns his office; or (b) he ceases to hold office by virtue of Articles 36 or 37; (c) the National Assembly is dissolved; Continue in office until the person elected at the nexl election to the ! office of President assumes office." I It must be noted that the import of Article 35 (3) is that/ it provided for how the term, of the then incumbent President who had held foffice for more than two terms, of five years each was to be trea ed after the commencement of the 1991 Constitution. It clearly providetl that the two terms of five years each shall be computed from .the commelcement of the 1991 Constitution. Article 38 of the 1991 Constitution made provision fbr what would I happen if there was a vacancy in the office of president. I (2294) In 1996, Zambia amended the 1991 Constitution throJgh Act No. 18 I of 1996. The 'tenure of office of president' was provided for in Article 35. I Article 35 provided as follows:- "Article 35- (1) Subject to clauses (2) and (4) every President shall hold office for a I period of five years. (2) Notwithstanding anything to the contrary contained in this Constitution or any other law a person who has twite been elected as President shall not be eligible for re-election to that office. (4) A person assuming the office of the President in abcordance with J' this Constitution shall, unless - (a) he resigns his office; J (b) he ceases to hold office by virtue of Article 36 r 37; or (c) the National Assembly is dissolved; continue in office until the person elected at the ne election to the j office of President assumes office.'' Article 38 of the Constitution as amended in 1996 prorlided for what would happen if there was a vacancy in the office of Preside~t. I What is common in all the previous constitutional regimes is that I whenever there would be a vacancy in the office of President, the VicePresident or any other person chosen to discharge the fu~ctions of the office of President where the Vice-President was not in a po~ition to do so, was that such a person would act in the office of preside~t pending the holding of a by-election. No vacancy in the office of President! occurred until I J72 I i (2295) in 2008 and 2014 when the then incumbent Presidents pas~ed on in midI term of their second and first term of office, respectively. T e country as per constitutional regime in place held by-elections. However, in 2016, further amendments were made to tHe Constitution I by the Constitution of Zambia (Amendment) Act No. 2 of 2016 by, inter afia, the introduction of Article 106 on the tenure of office. We fin~ it prudent at this stage to cast Article 106 in its totality. It provides as folloJs:- I "106(1) The term of office for a President is five years jNhich shall ruh concurrently with the term of Parliament, except that the term of office of President shall expire when the President-elect assumes office in accordance with Article 105. l (2) A President shall hold office from the date thel President elect is sworn into office and ending on the date thd next President elect is sworn into office. (3) A person who has twice held office as Preside t is not eligible for election as President. (4) The office of President becomes vacant if the Pkresident- (a) dies; (b) resigns by notice in writing to the , peaker of the National Assembly; or ! (c) otherwise ceases to hold office under A. rticle 81,107 or 108. ! ' (5) When a vacancy occurs in the office of P~esident, except under Article 81J (a) the Vice-President shall immediately assume the office of President; or / (b) if the Vice-President is unable for a reason to assume the office of President, the Speaker s?all perform the executive functions, except the power to- J73 (2296) (i) make an appointment; or (ii) dissolve the National Assembly; , and a presidential election shall be held within sixty days after the occurrence of the vacancy. (6) If the Vice-President assumes the office of President, in accordance with clause (5) (a), or a person i~ elected to the l office of President as a result of an election held in accordance with clause 5 (b), the Vice-Pr~sident or the President-elect shall serve for the unexpired tetm of office and be deemed, for the purposes of clause (3)- (a) to have served a full term as President if, at the date on which the President assumed office, at le st three years remain before the date of the next general elbction; or (b) not to have served a term of office as President if, at the ' date on which the President assumed office; less than three years remain before the date of the next geniral election." Thus, this amendment introduced fundamental chinges in our constitutional regime in so far as it relates to the office of/ President. Of relevance to the case at hand, is the introduction of a Vice President as a running mate to the President and the deeming of a President who has served less than 3 years of his predecessor's term as not hiving served a term of office. Also notable is that under the previous! constitutional regimes, two separate articles provided for the tenure of offiJe of President and vacancy in the office of President, respectively, while Jnder the 2016 amendments, provisions relating to tenure and vacancy are combined ! under a single article which is Article 106. J74 i (2297) Com;ng back to the matter at hand, the AppUcants' cofe nt;on ;n th;s case is that the term served by the incumbent President did not constitute a ! full term in terms of Article 106 (3) as read together with frticle 106 (6) because he only served a period of one year and six m6nths which is I below the threshold set in Article 106 (6) of the Constitutioh and that the spirit of this Article is to avail a President-elect sufficient tile to serve in office. In opposing the above contention, the sum total of the 1st and 2°ct I Interested Parties' response was that in determining the que~tion whether a President has held office under Article 106 (3), the length of time served ' does not count as Article 106 (2) states what is meant by "hblding office". It was contended that to hold office does not necessarily Jean a term of office as a president can hold office for a lesser period tha~ the five years. As such, the restriction of the number of times a President can hold office under Article 106 (3) is distinct and does not refer to thel term of office. Further, that Article 106 (3) clearly states that a President who has 'twice f ! been elected' is not eligible to stand for election regardless of the period served Therefore, that the circumstances under whkh the um bent first i J75 ' I (2298) assumed office are not covered by 106 (5) so that Article 106 (6) could be extended to apply to him. We have considered the submissions by the parties and we have ! also reviewed the authorities cited. To ably answer the quJstion whether I the presidential term of office that straddled two constitutional regimes can or should be considered a full term in terms of Article 106 (3),and (6) of the Constitution, it is imperative to first determine what would be bonsidered as I 'holding office' under Article 106. In particular, Article 1061· 2), which we have already quoted above. states that a President shall h , Id office from the date the President-elect is sworn into office and ending oh the date the next president-elect is sworn into office. I From the above, it is clear that once a President takes up office, he/she shall hold office until the next president-elect takes up office. The question therefore, is: For how long can a preside!t hold office? ' . In order to answer the above question, we have to/ consider the ' tenure of office of the office of president. In this regard, trticle 106 (1) which we have quoted above, provides that the term of office for a President is five years which shall run concurrently with the tJrm of ., J76 (2299) Parliament, except that the term of office of President shall expire when the President-elect assumes office in accordance with Article 1051. We must state here that from the historical constitutional developments that we have given above, it is clear that in: the pre-2016 constitutional arrangements, there was no provision for a Vide President to come into office as a running mate to the President. Therl was thus no express provision made for the Vice President to automatically assume office to fill up the vacancy in the office of President and tJ complete the unexpired term of office of the predecessor. However, following the enactment of the Constitutrn of Zambia (Amendment) Act No. 2 of 2016, a new set of provisions relating to the term of office of President and to how a vacancy in the office of PJesident should be filled were ushered in. In this regard, Article 106 covJrs this aspect. Although we have already quoted Article 106 above, for co/nvenience and emphasis, we find it prudent to re-quote Article 106 (6) here., It provides as follows: - "106 (6) If the Vice-President assumes the office of Pre~ident, in accordance with clause (S)(a), or a person is elected to the office of President as a result of an election held in accordance with clause S(b), the Vice-Presiderit or the • J77 (2300) President-elect shall serve for the unexpired term of of office and be deemed, for the purposes clause (3)- (a) to have served a full term as President ifl at the date on which the President assumed office, at least three years remain before the date of the next general election; or (b) not to have served a term of office as PrJsident if, at the date on which the President assumed office, less than three years remain before the date of the next general election." Article 111 (5) and (6) contains similar provisions for the office of Vice President. Previously the limitation in eligibility for election to the office of I President, as provided in the repealed Article 35 (2), was ,remised on the fact that a person had been elected twice as President re/ardless of the period the person served as President, even when the person was required only to serve the remainder of the term of office of his or heJ predecessor. Under the current Constitutional regime, however, the holding of office as President is attached to the term of office as defin d in Article 106 (1) and (6) read together. While Article 106 (1) prlvides that the Presidential term of office is 5 years, Article 106 (6/) defines what r constitutes a full term. Any period of 3 years and above is a full term. A period less than 3 years is not a full term. J J78 I (2301) Article 106 (6) thus presents a novel situation, providin9 that a person will be deemed not to have served a full term of office as PrJsident if at the I time he or she assumes office, less than 3 years remain bef,ore the date of i the next general elections. The intention of the Legislature as shown from the import of Article 106 is that a person can serve on~ two rve year terms amounting to 10 years. However, with the enactment of Article 106 (6) two other scenarios now obtain. Under Article 106 (6) (a), it is possible that a person can serve for a period of less than 10 years, being! one term of at ! least 3 years and another term of 5 years and these will cbunt as two full terms. The converse is also true under Article 106 (6) (b) Lhere it is now possible for one to occupy the office of President for a perild which is less than a full term in addition to two full terms of office. ~eaning that a President can be in the office for a total of almost 13 yJars. We have I decided to add this for clarity. Therefore, it is clear from the above provisions that when the I Constitution is read holistically, we believe, the intention of the Legislature was that when a person takes over the unexpired terl of a previous I president, that person should be able to serve a substa!ntial part of the unexpired term in order for such a term to be considered aj a full term. J79 I I <2302> In view of the above position, the question is: Did the/framers of the ' Constitution in the transitional provisions under the 2016/ Constitutional amendments, make provision for what was to happen to the incumbent i President's term of office which straddled two constitutional regimes as to I how it should be treated? / I Perusal of both the Constitution of Zambia (Amendment) Act No. 1 of 2016 as well as the Constitution of Zambia (Amendment) Al No. 2 of 2016 has shown that these contain very limited provision(s) as lo what or how the remaining term of office of the immediate predecessorf tenure should be treated. Section 7 (1) of the Constitution of Zambia ( 1mendment) Act No. 1 of 2016 provides as follows: - "7. (1) The President shall continue to serve as President or the unexpired term of that office as specified by the co1nstitution in accordance with the Constitution." 1 The above provision clearly shows that although the Constitution of Zambia (Amendment) Act No. 1 of 2016 provided for the clntinuation of the President in the office of Pre~dent, it made no provisifn s for how the period served from January, 2015 to September, 2016 which straddled two constitutional regimes was to be treated in view of th~ change in the constitutional provisions from the limitation based on being 'twice elected' l J80 (2303) to 'holding office' for two terms. In this regard, we agree with Counsel for the Applicants that the Legislature did not address that laspect in the I transitional provisions. The question, therefore, is: Was it the intention of the framers of the Constitution to not provide for transitidnal provisions relating to this term? Counsel for the Applicants referred us to the learn'ed authors of I Bennion on Statutory Interpretation at section 96 where they state that:- "Where an Act contains substantive, amending or repealing enactments, it commonly also includes transitional provisions which regulate the coming into operation of those enactments and modify thJir effect during the period of transition. Where the Act fails to include sue~ provisions expressly, the court is required to draw such inferences as to the intended transitional arrangements as, in the light of the interpretative criteria, it considers Parliament to have intended." (emphasis added)· We were also referred to Craies on Legislation, paragrapH 10.1.26 where it is stated that:- ' l "It is commonly necessary when one legislative system ends and another begins to enact special rules in relation to factual cases that straddle the transition. Sometimes the old law is continued for transitiohal cases, and sometimes the new law is applied; in either event, modifibations may be necessary." And at paragraph 10.1.27 of the same publication, where it is stated that: "ln the absence of express transitional provision the co~rts will have to attempt to discern what Parliament must have intended in respect of matters arising partly before and partly after the commencement of a I -· J81 I (2304) I provision, or which arose before commencement but fall to be addressed after commencement This is not always easy." (emphasis aclded) The foregoing shows that where it is determined that an Act failed to J f include express transitional provisions, it is for the Coult to draw an l ! inference or to attempt to discern what the Legislature must have intended. The Supreme Court appUed this approach in the cases o Lumina and \ Mwiinga v The Attorney-General27 and Attorney-General and the Movement for Multi-Party Democracy v Lewanika and 4 ithers22 where the respective transitional provisions did not expressly Jrovide for the Members of Parliament who crossed the floor. In the Lewaf'ka" case, the Supreme Court put it as follows:- "It follows, therefore, that whenever the strict interpreta~ion of a statute gives rise to unreasonable and an unjust situation, it is our view that judges can and should use their good common sense to ~emedy it - that is by reading words in if necessary - so as to do what parliament would have done had they had the situation in mind." j Therefore, the question is: What could have been the intention of the Legislature on this aspect in relation to the transitional arrlngements for a presidential term straddling two constitutional regimes? Our firm view is that it could not have been the intention of the Legislature to not provide for the period that was served an6 that straddled J82 (2305) two constitutional regimes as to how it should be treated. This is so because, as stated above, a holistic consideration of the relevant provisions in this case will clearly show that the intention was/is to allow or enable a person who assumes the office of president to complete the unexpired period of the term of another president to serve a substantial part of the five year term of office in order for that term to counJ as a full term I pursuant to Article 106 (6) of the Constitution as amended. / I It follows that the sub-articles in Article 106 cannot be isolated from I each other in interpreting the article. As we have already st!ted above, an I I interpretation of a constitutional provision that isolates I.he provisions touching on the same subject is faulty. Therefore, to state ~hat Article 106 i (3) applies to the term that straddled two constitutional rebimes but that I Article 106 (6) does not, is to isolate Article 106 (3) from :the rest of the provisions in Article 106 which is untenable at law, and is Jt variance with I i the tenets of constitutional interpretation, as all the provisions on the tenure of office of the President must be read together. We are of /the considered l view that the provision regarding the full term must be applier to defining ' J83 (2306) what is meant by twice held office under Article 106 (3) in intetpreting the provisions of that Article. \ I It therefore, follows that in the current case, the term se~ved which I sits astride the pre and post 2016 constitutional amendments 1nd having I looked at the intention of the Legislature as we have done, and jhe holistic approach we have taken in interpreting Article 106 of the Constitution in its I entirety, our answer to the question that we have rephrased ls that the I Presidential term of office that ran from 251h January, 2015 to 13th I l September, 2016 and straddled two constitutional regimes C annot be I I considered as a full term. l I As regards the second question posed in the amended 1riginating Summons, which is whether the incumbent President is eligible for election I as president in the 2021 presidential election, our view is that, in light of the position that we have taken as regards the first question pos~d in the I amended Originating Summons, the second question has become otiose and we shall not consider it. I I I I J84 I I\ (2307) Since this matter raised serious constitutional issues, it is only fair that each party shall bear its own costs. \ I I H. Chibomba PRESIDENT CONSTITUTIONAL COURT ~ A. M. Sitali M. S. Mulenga \ JUDGE JUDGE CONSTITUTIONAL COURT CONSTITUTIONAL C0URT I Ea~ P. Mui nda JUDGE JUDGE CONSTITUTIONAL COURT CONSTITUTIONAL COURT I I I I M. M. Munalula ke JUDGE L coLRT CONSTITUTIONAL COURT

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Pule & Others v Attorney General & Others (4 of 2017) (7 December 2018) – ZambiaLII

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Pule & Others v Attorney General & Others (4 of 2017) (7 December 2018) – ZambiaLII

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