Amb. Dr. Elias Munshya

By Elias Munshya

The state has access to all the resources one could ever think of when drafting a constitution. In its employ is the crème de la crème of the best legislative drafters and lawyers. Further, Parliament has famous busy bodies dotting the government house walls. Also, parliamentarians are mature fathers and mothers who should be presumed to know what they are doing. For sure, it is preposterous that under this imbalance of power, courts of law should be siding with those in power when interpreting vague provisions in the very Constitution created, drafted and passed by the same parliamentarians.

At issue here is what Parliament passed in 2015. Shortly afterwards, in 2016, President Edgar Lungu signed into law Act number 1 and Act number 2 of 2016, establishing the new amendment of Zambia’s Constitution. One provision is at issue today – the so-called Grade 12 minimum requirement. According to Constitution 2016, one could qualify as a candidate for Councillor, MP, and President if they had “as a minimum academic qualification a Grade 12 school certificate or its equivalent”. These words should be clear and straightforward. They are not controversial at all. The minimum presumes that there is a maximum, and if I were to present a top qualification, I should be presumed to have the minimum, unless this presumption is rebutted. There should be no duty to prove I meet the minimum educational qualification if, indeed, I have the maximum educational qualification. To read this constitutional provision as stating that “the only qualification is the Grade 12 certificate” is wrong. It makes no sense. To put it simply – this is just not what the Constitution says. Had the Constitution intended to make the Grade 12 certificate the only qualification, it would have clearly and unambiguously stated so. All it stated was that a person needed to have a minimum academic qualification, a Grade 12 certificate: leaving the maximum open.

The way some Zambians now understand this Grade 12 requirement has led to a diversity of interpretations and, therefore, the ambiguity. And, of course, we all turned to the courts to see how they would look at this “ambiguity”. The first judge to have had a go at this question was Kabwe High Court Justice Dominic Sichinga in 2016. In a case brought by one Sibongile Zulu; Justice Sichinga held that Constitution 2016 did not say that one had to show a Grade 12 certificate, but rather that the requirement was a range of qualifications with the Grade 12 as the minimum, but tertiary, professional, and college education, being higher than the secondary school Grade qualification, was superior. Justice Sichinga ruled in favour of Zulu and ordered the Electoral Commission of Zambia to accept candidates with academic qualifications superior to the Grade 12 School Certificate.

The Sibongile Zulu v. AG (2016) case was governing law, well, until last week when the Constitutional Court decided to muddle the waters and confuse itself and all of us in the process. At issue, in my opinion, was the lack of adherence to constitutional principles by the court that is supposed to uphold the Constitution itself. First, the Constitutional Court should have recognised and appreciated the absurdity and ambiguous nature of this Grade 12 requirement, as interpreted by several players. Second, having noted this ambiguity, the court had the duty to then interpret this ambiguity in a more inclusive way than exclusive. If the Constitution’s drafters had wanted to make the Grade 12 the only qualification, they would have simply said so. They did not. And since they did not explicitly state that the G12 was the only qualification, it should not have been left to the Constitutional Court to impose on the Constitution what the drafters in plain language did not impose. In other words, constitutional statutes should be liberally interpreted to include as many people as possible. Given a choice between two interpretations, one that would restrict more people to run for office and one that would encourage more people to run for office – the constitutional court should have erred towards inclusion rather than exclusion. Inclusion is a far safer bet towards constitutionalism than exclusion – particularly when faced with a perceived absurdity in the language.

Third, even if we used the mischief method of interpretation. That method would still lead us to a more liberal interpretation than a restrictive one. Using the mischief method, one could argue that Parliament decided to have the Grade 12 requirement to have parliamentarians who could carry out meaningful debate in Parliament. This is the language that the majority uses in the Nkunika v. Nyirenda case. Indeed, people like Sibongile Zulu, who do not possess a Grade 12 certificate but have accessed higher college and professional education, could be as brilliant parliamentary debaters as Grade 12 certificate holders. There is no analytical study that has concluded that 21, or 35-year-old people who skip Grade 12 but have college education cannot be as intellectually astute as those who hold Grade 12 certificates. Suppose there is a mischief to be cured here. In that case, this mischief can be remedied by having a much more liberal approach to academic qualifications because of the perceived ambiguities rooted in Constitution 2016’s grade 12 requirement.

Fourth, we must deal with one more important thing. Even if I have dealt with the mischief rule above – I must add one more thing. The intention of Parliament is expressed in its written text. In other words, we must turn to the text itself first before we begin using psychic powers to discern what Parliament intended. Parliament intends to pass the laws that it writes and passes. We should not be burdened with the senseless duty of trying to read the minds of parliamentarians. If they noted that a minimum is qualification X – all those with qualifications higher than X should have no problem meeting the law’s requirement.

The next time the Constitutional Court is called upon to interpret our Constitution, I just hope it will strive to be much more constitutional than exclusive. A liberal interpretation of rights is a better bet.

Elias Munshya can be reached at elias@munshyalaw.com