By E. Munshya, LLB, LLM, MBA.
There is just no way of insulating ourselves from the brutality of language. No matter how much care we take, there will always be some level of absurdity and ambiguousness in the language of legislation. Even simple words cannot escape from the burden of misunderstanding. Nothing challenges our obsession with gleaning the meaning of words than when they are used in the constitution and its surrogates. Currently, the debate in Zambia seems to centre on what is the correct interpretation of the Grade 12 clause in the constitution. For certain, the constitution in its ordinary expression provides that for one to be a candidate for political leadership they must have as a “minimum academic qualification a Grade 12 Certificate or its equivalent”. This begs the question, what do these simple words mean? If we cannot quite understand or resolve what these simple words mean, to what extent should we rely on the intention of parliament to resolve what these words mean? Did parliament intend the Grade 12 to be “the” qualification? Or is Grade 12 just the minimum qualification of the many qualifications that a person can present when running for office? To answer some of these questions we must address a general theory of parliamentary intent.
The written word is the only valid storage of legislation. Parliament must write its law if the law is to be valid and applicable. Our common law tradition would be impossible without the written text. That being the case, it is primarily from the written text that we should first resort to in order to glean the intention of parliament. Parliament cannot intend that which it has not written. Unless it writes, debates of parliament are only wishful thinking.
Here is an illustration of parliamentary intent. Let us suppose that parliament intends to ban three days of the week: Monday, Tuesday, and Wednesday. In scenario 1, after much debate, parliament writes a law styled as follows: “The following days of the week are banned from the calendar: May, June, and July”. In scenario 2, parliament writes and passes a law styled as follows: “The following days of the week are banned from the calendar: Thursday, Friday, and Saturday.” How can the theory of parliamentary intent help us? In the first scenario, it is clear from the natural reading of the text that the legislation talks about banning days and yet goes on to ban months instead. Reading that legislation in its natural sense cannot work because obviously, there is a mistake in that sentence. In scenario 2, however, it really does not matter that parliament intended to ban Monday, Tuesday, and Wednesday, if what it writes is that it has banned Thursday, Friday, and Saturday, then it is clear from the natural reading of the text, that there is no ambiguity and the language clearly states that the law has banned Thursday, Friday, and Saturday. Legislation must be interpreted first within the confines of the natural meaning of the written text.
Some are arguing that only Grade 12s should stand for office because that is what parliament intended. Parliamentary intent can only be gleaned from what it writes unless what it has written cannot be ascertained from the natural reading of the text (scenario 1 above). If it is true that parliament really wanted only Grade 12s to stand for office, there was nothing stopping it from stipulating precisely that only Grade 12s must run for office. Parliament could have stated that “the only academic qualification for office is a Grade 12 Certificate”. But it did not state that. Parliament instead chose to use the following words, “minimum Grade 12 or its equivalent”. The natural meaning of this text is that Grade 12 is only but one of the qualifications and not the only qualification. The Examinations Council of Zambia has jumped on the issue to volunteer itself to begin “certifying” Grade 12 certificates as if the Grade 12 was the only qualification. The natural meaning of the constitutional text leaves open the possibility of using diplomas, degrees, and several other tertiary qualifications.
All laws should be read and interpreted with a presumption that parliament intended what it wrote and not what it did not write. It is a simple rule. The issue of whether a person could have a degree without a G12 seems to confuse many including the Examinations Council of Zambia itself. In the real world, Zambia included, students can and are admitted to tertiary diplomas, bachelor’s degrees and masters’ degrees even if they do not produce a Grade 12 certificate. Currently, neither the Zambia Qualifications Authority nor the Higher Education Authority stipulates G12 certificates as the entry qualification into higher education. There is no minimum educational qualification for entry into university in Zambia. Mature students can demonstrate that they would be able to handle university level education and are routinely admitted based on several other criteria that may not include a Grade 12 certificate. It is disingenuous for us to suppose that only a Grade 12 qualification can lead to a university education. Certainly, had parliament so intended it would have unambiguously made the Grade 12 certificate the only academic qualification for office. The words “minimum” and “equivalent” certainly demonstrate that the intention of parliament as gleaned from its written text had something else in mind. I am very hopeful that once the constitutional court has had a shot at this issue, it will rule against the Examinations Council of Zambia’s senseless rampage for certified Grade 12 certificates, as the only academic qualification.
Suggested citation: Munshya, E. (2016). Towards a theory of parliamentary intent in view of Zambia’s Grade 12 requirements. Elias Munshya Blog (www.eliasmunshya.org) (May 1, 2016)