E. Munshya, LLB., LLM, M.Div., MBA
To borrow from the late Justice Antonin Scalia, Zambia has a written constitution which “says what it says and does not say what it does not say”. Barring some concepts that are deeply tied to constitutionalism, the Zambian constitution should be interpreted from the intention of its written text.
It is not surprising that in our constitution making process, we tend to intend to include clauses into the constitution so as to bar certain elements in our society that we do not like. In 1996, Chiluba, Miyanda and Sata used that constitution to try and block people like Kaunda whom the MMD top brass perceived to be of Malawian parentage. However, intention when making the constitution is one thing and the meaning it is assigned after adoption is quite another. If the intent of the MMD in 1996 was to block Kaunda, the language used in the amendment of that constitution was so vague as to render the “parentage clause” useless particularly as far as people like Kaunda whose parents were far older than the nation of Zambia (which was only created in 1964). Again, a literal interpretation of the constitution won the day over the intention of the framers of the constitution who thought that they were excluding Kaunda and his Malawian relatives. Indeed, Chiluba himself got ensnared by the amendments when he was sued by Mr. Mbikusita-Lewanika. Lewanika alleged that Chiluba was of Congolese parentage and that he was disqualified from the presidency. The Supreme Court held that the parentage clause was essentially useless in its Lewanika ruling.
In 2016, we face a similar but much more sinister issue: Grade 12 requirement. I have written about it in the past. Some of the big wigs in the Patriotic Front may have pushed through the Grade 12 requirement as a way to fix some political players they perceive to lack a Grade 12 education. Unfortunately, the text of the constitution of Zambia does not say what they think or intended it would say. The constitution of Zambia says that for a person to qualify as a candidate in the elections, they must have a minimum grade 12 certificate or its equivalent. Several words are important, “minimum”, “Grade 12 certificate”, “or”, its “equivalent”. The constitution does not say that Grade 12 is “the” qualification. First and foremost, Grade 12 certificate is not the qualification. All those promoting Grade 12 certificates as the qualification are wrong. It is just one of the qualifications, but it is not the only qualification.
Second, this Grade 12 certificate is the minimum. What this means is simple: we have a minimum and then we have a maximum. The constitution has not prescribed the maximum; it has only prescribed the minimum. This should be simple to understand, anyone who has a tertiary education has a qualification that is superior to secondary education. Tertiary certificate holders do not need to show a Grade 12 certificate because Grade 12 is the minimum, but anyone who has the maximum may not need to show the minimum. The constitution does not say people must have Grade 12 in addition to other qualifications. The constitution could have said that, but it does not. The constitution has left it open: Grade 12 is not the qualification; it is only but one of the qualifications. It is a minimum qualification.
Third, the constitution then uses the word “equivalent”. I submit that it is only a court of law that can authoritatively determine what is equivalent in this matter. The Electoral Commission of Zambia and the Examinations Council of Zambia lack competence to determine what is equivalent to Grade 12 as far as meeting this constitutional requirement is concerned. I must make it very clear to both ECZs, that they should be very reasonable in the way they approach this issue. They should not come up with facetious descriptions that exclude our citizens from participating in the sacred sacrament of elections. The way I understand it, the constitution has left the possibility for a candidate in Milenge, as an example, to argue before the constitutional court that a Grade 7 education attained in Milenge which had no secondary school until 2005 must be adjudged as equivalent to a Grade 12 education obtained by the privileged of Lusaka. There cannot be similar standards of education in a country which has rural areas with no access to secondary education! Equivalency is key.
Apparently, the Patriotic Front legal advisor has sent out an advisory to prospective candidates to have their Grade 12 certificates verified by the Examinations Council of Zambia. According to Mr. Tutwa Ngulube, the Electoral Commission of Zambia will only accept certificates that are verified by the Examinations Council of Zambia. I cannot verify whether the elections body is actually asking for verification of G12 certificates, however, I am surprised by what Mr. Ngulube is saying. Clearly, Mr. Ngulube is putting words into the constitution to make it say what it does not say. Again, a Grade 12 certificate issued by Examinations Council of Zambia is not the qualification, it is only one of the qualifications that range from anything equivalent to Grade 12 to anything higher than secondary education. Since Mr. Ngulube acts for the ruling party, his pronouncements might be mistaken for government policy. We all need to ignore this gentleman and wait for ECZ to give us clear directions. Let me emphasize, ECZ must give effect to the constitution and not dream up its own qualifications.
If Mr. Ngulube is so concerned, why is he not asking that candidates also verify their Green National Registration Cards with Home Affairs? If he can’t demand for verified NRCs where on earth does he get the guts to ask for verified Grade 12 certificates? I think, I have got the answer: some in the Patriotic Front want to use the Grade 12 requirements to fix each other. Fortunately for us, the constitution has no room for petty squabbles involving gossip, umulomo no bufi about whether Chishimba Kambwili has a Grade 12 certificate or not. The man has a degree and that alone would satisfy the requirements of this constitution, without having to provide a certified copy of a Grade 12 certificate.
Citation: Munshya, E. (2016). Grade 12 Certificate Is Not the Only Qualification, Stop Demanding It. Elias Munshya Blog (www.eliasmunshya.org) (March 3, 2016).
Am a follower of your post ….I like the way you explain Legal matters simple terms and very clear sir…….keep it up.
the grade 12 clause state and i cote ” a person qualifies to be elected as a councillor or MP if that person is not less than 19 years of age and has obtained a minimum academic qualification of a Grade 12 certificate or its equivalent.” this simply means one only qualifies with a minimum of grade 12 certificate and not a minimum of a diploma or a minimum of a degree. for sure there are people with diplomas and degrees yet without a grade 12 certificate. these do not qualify because the constitution demands the minimum of a grade 12 certificate not a diploma or degree.
That is the problem of shallow constitutions. If you have one O level , you will awarded a certificate, so ho many O levels are required?
I am a keen follower of your posts. You enlighten some of us, especially the way you analyse legal matters! Keep it up!
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Bishop Kufuna, natotela kanabesa.