President Edgar Lungu is Not Eligible to Stand in 2021: Here is why

By Elias Munshya & Michael Chishala

“A person who has twice held office as President,” states Article 106(3) of Zambia’s Constitution 2016, “is not eligible for election as President.” However, Article 106 (6) further explains that a Vice-President, or another person who assumes the presidency due to a by-election, will not be deemed to have held office if they have served as President for less than 3 years before the date of the next general election.

The question Zambians are facing right now is whether President Edgar Chagwa Lungu qualifies to stand in 2021. President Edgar Lungu was first sworn into office in January 2015 after winning a presidential by-election to replace a dead incumbent Mr. Michael Chilufya Sata. Lungu was re-elected in August 2016 after general elections. In 2015 when he first ran for office, Zambia was under Constitution 1996. However, in January 2016, Zambia adopted an amended constitution with the provisions explained above. The question is how would this apply to President Lungu.

President Lungu and his supporters claim that Constitution 2016 allows him to stand again in 2021. However, as stated above, Article 106(3) cannot be any clearer: “A person who has twice held office as President is not eligible for election as President.”

We submit that President Lungu has “twice held office”. The first was in January 2015, and the second was in September 2016, after the August 2016 elections. Article 106(2) states as follows: “A President shall hold office from the date the President-elect is sworn into office and ending on the date the next President-elect is sworn into office.”

On 25th January 2015, Mr Lungu was sworn-in as President. He “held office” until the next swearing-in ceremony on 13th September 2016 when as “next President-elect”, he was sworn in for a second time. Thus, He is currently “holding office” for the second time until the next swearing in ceremony in 2021.

Some Lungu supporters claim that his first term does not count because of Article 106(6) which states that for the purposes of Article 106(3), a term of office is only counted if it is at least three years long. Since Mr Lungu’s first term was less than three years, they say we must discount it. This argument fails on two counts.

  1. The “three-year rule” only came in effect in 2016 and you cannot apply the law to previous events unless it is explicitly stated in the law itself. For example, before 2016, there was no provision for 50%+1 to determine the election winner. If we applied the law retroactively, it would mean Mr Lungu never won the 2015 elections since he never went over half the votes cast. Another example is the Grade 12 certificate requirement. The fact that it is now required for a candidate to stand as president does not mean the previous elections that were held without G12 certificates are invalid.
  2. The three-year rule fails because if we apply it to President Lungu, he does not even qualify because it can only be applied to a Vice-President who was elected as a Running Mate and then took over after a vacancy in the President’s office. Mr Lungu was never a Vice-President. Article 106(6) refers to Article 106(5)(a) and (b) when mentioning the three-year rule and President Lungu never took office under either of the two situations mentioned in Article 106(5).

If we followed, Article 106(5), only Dr. Guy Scott, who is now eligible to stand as Zambian President, would possibly qualify. As a side issue though, it is interesting to note that Dr. Scott actually never “held office” since he was never sworn-in as President, even though he performed the Executive functions of the President’s office. Similarly, during the three months after the death of President Levy Mwanawasa, Dr. Rupiah Banda never “held office”.

Another argument by Lungu supporters is that the Constitution 2016 reset the clock and everything is started afresh, including counting of terms of office previously held. This fails because there is no provision in the Constitution 2016 that says that previous terms of office under the earlier Constitution are not counted. The critical phrase in the Constitution is “twice held office”.

The definition of “holding office” has not changed since the 1991 Constitution to date. Constitution 1996 in Article 34(9) and (10) stated as follows:

A person elected as President under this Article shall be sworn in and assume office immediately but not later than twenty-four hours from the time of declaring the election. The person who has held office of President shall immediately hand over the office of President to the person elected as President and shall complete the procedural and administrative handing over process within fourteen days from the date the person elected as President is sworn in.

Thus, it is very clear that being sworn-in is what constitutes the beginning of “holding office” with respect to Article 106(3) in the 2016 Constitution and this also applied previously. Mr Lungu has been sworn-in twice and as per Article 106(3), he will have “twice held office” by 2021.

The logical end of the arguments advanced by President Lungu’s third term supporters would mean that if the late President Fredrick Chiluba were alive today, then even he could contest again. The argument could extend further to Dr. Kenneth Kaunda as well. If everything has started on a clean slate there is no stopping Kaunda or Chiluba. Further, if this third term argument held, then Dr. Rupiah Banda might claim two more terms, since he too served for less than the proverbial 3 years. We doubt if the Lungu argument makes any sense at all.

We also note that in January 2016, there were two acts of Parliament that ushered in Constitution 2016. Constitution Act No. 1 provided for the transition between the two Constitutional eras (Constitution 1991 and Constitution 2016) while Constitution Act No. 2 contains the actual text of the 2016 amendments to the Constitution. To provide for the transition, Act No. 1 stated that, “the President shall continue to serve as President for the unexpired term of that office as specified by the Constitution in accordance with the Constitution.” This provision confirms our view that the 2016 Constitution (assented to on 5th January 2016) recognizes the first term of office held by Mr Lungu that was already running from January 2015.

We understand that President Lungu and his supporters are talking of taking this matter to the Constitutional Court. We believe that step is unnecessary in view of the circumstances. We do hope to continue participating in this dialogue.

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Suggested Citation: Munshya E. and M. Chishala (2017). “President Edgar Lungu is Not Eligible to Stand in 2021: Here is why”. Elias Munshya Blog. (www.eliasmunshya.org).

About the Co-Authors:

  • Michael Chishala (michaelchishala.com) is an entrepreneur and web developer based in Lusaka, Zambia. Trained as an engineer at the University of Manchester in England, his multifaceted interests include: philosophy, economics, politics, theoretical physics, architecture, music, and the arts.
  • Elias Munshya (eliasmunshya.org) is a Zambian based in Calgary, Alberta where he practices civil litigation, administrative and human rights law. He holds graduate degrees in theology, counselling, law and business administration.
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Elias Munshya

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Michael Chishala

The Law Association of Zambia: My proposals for reform

By E. Munshya, LLM, MBA, MDIV.

Change must come to the Law Association of Zambia (LAZ). LAZ in its current form lacks the institutional strength needed to serve Zambians. However, the debates about the future of the Association seems to be so polarised that it is sometimes confusing to tell what exactly is going on. The genuine calls for the reformation and reorganization of the Law Association of Zambia seems now to have been hijacked by supporters of the ruling Patriotic Front such that it becomes difficult to distinguish between reforms that are needed to enhance the profession and reforms being advocated by the ruling party to control the legal profession.  I doubt whether the PF cadres mean well about the future of LAZ. It appears to me the ruling PF and its cadres are not interested in a reformed LAZ that serves the needs of Zambians, but are much more interested in a LAZ that is more amiable to the desires of the ruling party politicians. To make it very clear, those of us who are asking for the reformation of the Association are doing so on very different grounds than the ruling party cadres. We will be doing a great disservice to this debate if we lumped those advocating for change into one political mould.

My proposals are as follows. Currently, the Law Association of Zambia primarily derives its existence from three sources:

  1. It derives its power from the Legal Practitioners Act (LPA), an act that explains the regulation of lawyers in Zambia.
  2. LAZ derives its powers from the Law Association of Zambia Act, which explains the objects of LAZ and how it is to be managed.
  3. The common law and tradition inherited from the British.

Curiously, both the LPA and LAZ Act combine two elements into one entity: regulation and fraternity. LAZ serves as the regulator of lawyers called to the Zambian bar, and it is also a fraternal association for lawyers and other allied individuals. It is this character of the Law Association that is problematic right from the start. My proposal is to de-link regulation from fraternity so that LAZ the regulator becomes distinct from LAZ the fraternal association. My proposal has got nothing to do with the current direction of the LAZ council or its leader, and has everything to do with maintaining a regulator whose sole purpose will be to train, admit, and licence lawyers for the national good while leaving the advocacy and fraternal goals to a different association.

Elias Munshya New

E. Munshya

LAZ already has the infrastructure for change. For example, several LAZ committees which carry out the regulatory function can very easily be delinked from the main association and together form the regulatory body for lawyers. This committee includes the Legal Practitioners Committee and the Disciplinary Committee. To that we can add the educational committee, by whatever name called. This new body, we can for example, call the Law Society of Zambia (LSZ) would be tasked with education, training, admission to the bar and discipline of Zambian legal practitioners. The LSA can also be given the mandate to licence other allied professionals such as paralegals. The Law Association of Zambia (LAZ) can then continue as an association of free minded lawyers sharing information and participating in democratic advocacy and governance by intervening in noble causes such as the Oasis Forum or the Grand Coalition.

The LSZ as a regulator will not be making running commentary on politics. Its role will be to licence lawyers and ensure that lawyers respect the rule of law and serve the public interest. The role of advocacy and political commentary can be left to an association. The LSA will be self-governing. That is, it will maintain the common-law tradition of a legal profession that regulates itself without political interference. The LSA can also become an independent arbiter for disputes that must deal with the profession.

How then can we achieve these reforms?

  1. My proposal is that parliament is the right place to start. There must be political will to amend both the LPA and LAZ Act. However, in making such statutory changes, parliament and the executive must consult with lawyers.
  2. Lawyers must know that it is in their best interest to have a regulator that is not soiled by political advocacy. While there is nothing wrong with political advocacy, there is everything wrong if a regulator gets involved in political advocacy.

You do not need a regulator arguing in court about how electoral petitions must be handled! Leave that to lawyers and the courts or to an association of like-minded people and leave the regulator out of political squabbles, even if the squabbles have to do with the law.

Some citizens have gone to court to seek help from the courts to heal the Law Association of Zambia. With due respect to those citizens who have done so, I doubt if the courts of law are the right fora to resolve such problems. Courts cannot heal that which must be cured by legislative action. If the current Justice Minister can do anything to enhance the legal profession in Zambia, he should consider pushing in reform that delinks regulation from fraternity in the way the legal profession is regulated under both the LAZ Act and the LPA. This debate must continue and I hope to continue contributing to it in the coming weeks and months.

Amos Chanda, Judges and the Challenge of Reforming the Law Association of Zambia

E. Munshya, LLM, MBA, M.DIV.

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Amos Chanda – State House Spokesperson

Words alleged to have come out of Mr. Amos Chanda’s mouth concerning the judiciary were concerning. In fact, they were dangerous. I cannot belabour any further on the points raised by the Law Association of Zambia (LAZ). President Lungu has defended his spokesman. He is saying that we all misunderstood Mr. Chanda. I hope that is true. But we cannot all be mistaken in what we heard Mr. Chanda say. It is a concern that the spokesperson for the president should be having a wide-ranging media interview that trots from one topic to another during the time that his principal is away visiting a foreign country. In our democracy, the president’s spokesperson is not supposed to be spewing government policy and giving political statements that outline the Executive’s priorities. Zambians did not elect Mr. Chanda. Zambians elected Mr. Lungu. At most, Mr. Chanda is a senior civil servant implementing policies of elected politicians. This is the anomaly we have seen recently where after each cabinet meeting, it is Mr. Chanda who briefs the press about the resolutions of cabinet. President Lungu should put a stop to this so there is a clear demarcation between the civil service and its supervisors, the elected politicians. In the Zambian system of government, the spokesperson for the Executive branch is not Mr. Chanda but Ms. Kampamba Mulenga, the minister of information. She is the one who informs the public of government’s political agenda and priorities. And that is how it is supposed to be so that the people can freely debate political policy and hold politicians to account.

Mr. Chanda’s comments that judges risk “Kenya-styled” reforms are quite ill-informed. First, Zambia is not Kenya and we have a very different judicial and constitutional history. Second, Mr. Chanda does not seem to make sense to the extent that he makes it sound like the executive is a very small player in the current structure of the judiciary. Of all the presidents Zambia has had since 1964, only two presidents have had tremendous imprint on the structure of the judiciary: President Kaunda and President Edgar Lungu. In 2 years, President Lungu has by far transformed the structure of the judiciary more than any president. It is under his rule that we have had an expanded judiciary with several new courts including the Constitutional Court and the Court Appeal. All this myriad of judges was appointed by President Lungu embossing his image for many years to come. To suggest that the judiciary could be changed under the Kenya-styled themes is being disingenuous to the tremendous influence of Mr. Chanda’s own boss on the current structure of our judiciary. Point at the new courts and all the new judges and it leads to one appointing authority: Edgar Chagwa Lungu doing in 2 years what took Kaunda 27 years.

On the rulings of the judges, Mr. Chanda may have some legitimate concerns. But Mr. Chanda should channel concerns in a way that respects our processes and not by throwing a tantrum on television (tantrum is an exaggeration; Chanda is very soft spoken). Clearly, the Munali decision from Justice Musona does not look strong at law and common sense. It does not look convincing. But the only way to reverse it is by lodging an appeal and convince the constitutional court judges. It should not be by intimidation. The Lusaka Central petition decision is quite another matter and without delving any further so as not to sub-judice the case, it is a difficult case to overturn on appeal. Let us wait and see. When a high court judge makes a mistake of law or fact, parties have the right to appeal. That is how we resolve legal problems. We do not resolve legal problems through veiled threats. I have tremendous faith in our constitutional court that it will fairly look at Munali and Lusaka Central once the appeals come before it.

13524379_10154251631640528_1091952662934062325_nHaving dealt with Mr. Chanda, we need to turn to the next challenging issue. The role of the Law Association of Zambia when it makes statements that supporters of the ruling party find unfair. I believe LAZ, as a regulator, must not be taking sides in political battles. Just as we are demanding that Mr. Chanda should be politically neutral, we also should demand that the regulator of legal practitioners in Zambia be politically neutral. The regulator cannot take overt stands on the law that seem to contradict and divide the people it regulates. The solution, therefore, is to split LAZ into two independent branches: one for regulation and the other for a fraternal association of like-minded lawyers. Currently, there is always confusion when LAZ takes a position whether it is in its capacity as a regulator or as an association of free-spirited lawyers. The calls that Mr. Chanda be well behaved as a spokesperson of the president, is the identical call for LAZ to make some effort to advocate before government that LAZ gets split to avoid confusion. LAZ is right in condemning Mr. Chanda, as an association. But it has no business taking such political stands as a regulatory body. If Mr. Chanda were to go to court or to sue the LAZ President for defamation (if she was wrong on what Mr. Chanda said), it would still be a LAZ regulated lawyer who would appear in court for Mr. Chanda against LAZ. This would be a potential conflict.

There is more to say about the challenges for LAZ reform. I hope to look at it in detail in future. But for now, we are concerned with Mr. Chanda just as much as we are concerned with the continued politicization of the entity that is supposed to regulate legal practitioners in Zambia.

Luo Falls in Munali: My analysis of Justice Musona’s ruling in Mwamba v Nkandu Luo (2016)

By E. Munshya, LLM, MBA, MDIV.

Elias Munshya New

Elias Munshya (of the Alberta Bar)

Justice E. L. Musona on Tuesday, November 22, 2016 delivered his ruling in the Munali Constituency parliamentary petition. It is a 56-page judgment imbued with story. Good story is what makes a good case. In fact, stories win cases. A trial is a story. Gathering of evidence involves story telling. Unless you learn to tell a story, you cannot win in court. Going through the judgment, you can see how the petitioner Doreen Sefuke Mwamba told her story and arranged her evidence. It was quite an emotional story too and quite compelling. It also involved some hilarious features like when one of the petition witnesses testified that they saw PF cadres give soft drinks to police men, allegedly laced with some substance that caused the police officers to fall into a deep sleep immediately after taking the drinks. It is while the police slept, testified the witness, that PF cadres helped themselves to stuffing the ballot boxes-packing and unpacking them. Every story needs such twists and turns. And in the Mwamba v. Luo and others, you have the story, you have everything. Perhaps the saddest part of the evidence was when candidate Mwamba testified that she feared for her life as she and other members of the UPND were being beaten on top of the campaign double decker bus in Mtendere. PF cadres were shouting among themselves and encouraging each other to do what Ms. Mwamba understood was going to be rape. No candidate in Zambia needs to live in this kind of fear. Our country can do better and must do better. Rape or the threat of rape has no place in our country’s political discourse.

Justice Musona has captured the spirit of democracy in his ruling. I find it quite thrilling. He has categorically put it very eloquently that the Electoral Commission of Zambia has the duty to ensure that it complies with the law. Particularly, Mr. Justice Musona took issues with the Form Gen. 12 which in many polling stations had not been signed by polling agents. He then added this important statement on page J43:

“In a democratic society like Zambia, no area can be a NO-GO-ZONE to other political parties. Each political party is free to campaign in any area without hindrance from any rival political parties”.

This statement is a direct indictment on all of us and I hope that the Electoral Commission of Zambia will heed Mr. Justice Musona’s thoughts here and allow for elections that are truly free and fair for all political players. Justice Musona did not spare the state either. He indicted the police as having been complacent in the Munali unfair election stating “the state also did not show what action the State police took regarding that merciless attack by PF supporters on UPND supporters. State police, therefore, like the Electoral Commission of Zambia, have let down the people of Munali constituency”. It cannot get any uglier than this. We had better pay heed to Justice Musona’s rebuke.

I understand that Professor Luo is appealing Justice Musona’s ruling. For all the good things this decision is to Zambian electoral jurisprudence, I believe an appeal would be in order. Justice Musona is quite right about the violence characteristic of the Munali constituency. He is right in his concern with the general lapse of the Electoral Commission of Zambia, but I find it difficult to accept the idea that the petitioner discharged its burden sufficiently on the charges. The greatest weakness in Mr. Justice Musona’s legal reasoning has to do with the nexus between the illegal acts and the impact on the majority of the electorate in Munali. I am finding it difficult to find the connection. For now, the matter may be appealed, or maybe it has been appealed already and we wait to hear what the constitution court will say about it.

Whereas Mr. Justice Musona is right about the standard of proof required in electoral petitions, I do not see how he uses this standard considering the evidence before him. For example, how does he connect the acts of the violent cadres on the double decker bus with the candidate or her agent? The law does not punish the candidate for the acts of violence perpetrated by cadres, candidates are held accountable for the acts the candidates do or acts that are done with their knowledge or approval or approval of their electoral agents. I think that may be the question the appellant court must answer.

For now, we notice the good with Justice Musona’s judgment, but we also face the challenge of how he came to the decision. No matter how the Constitutional Court looks at, we will all have to agree with Justice Musona that, “Each political party is free to campaign in any area without hindrance from any rival political parties.”

The ruling can be downloaded here:mwamba-v-luo-and-others-2016

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Elias Munshya is a civil litigator and administrative law practitioner in Alberta, Canada.

Amending the Zambian constitution should not be done in the dark

By E. Munshya, LLM, MBA, MDIV (of the Alberta Bar)

13524379_10154251631640528_1091952662934062325_nThe 2016 amendments of the 1991 constitution of Zambia need revision. I would be the last person to dispute that fact. From language that is ambiguous to plainly ridiculous provisions, Constitution 2016 need to be reformed. Wanting to change the constitution is one thing, however, and the process used is quite another. President Lungu and his Patriotic Front must come clean and let the people of Zambia know which provisions of the constitution are up for revision. This cannot be done in the dark. The Zambian parliament must not move to amend the constitution in a deceitful or cantankerous manner. Should parliamentarians try to do this and amend the constitution in the dark, they will hear from the million angry voices of our people. It is the people that are the true guardians of democracy and all institutions of this great nation are reposed and deposited in the people themselves. It would be ridiculous for parliament to attempt to amend the constitution without some form of public disclosure and discourse. No matter how inconvenient, discourse must be had on the way forward.

The other thing that the PF must do is to speak to the UPND and other opposition parties so that they can come up with some form of consensus about amending some provisions. President Lungu should not lead the country as if it comprises only his dununa reverse supporters. Zambia is a republic with diverse opinions and formations. The chief executive of this nation must try to find a way to bring all sorts of people to the table. If Ba Hichilema and Bo GBM will not meet with the president, at least Mr. Lungu should make effort to speak to opposition parliamentarians to forge a compromise on this issue of reforming our constitution. Going it alone is ridiculously arrogant and the ruling party must guard itself in that way.

We must commend some opposition parliamentarians who are already holding the PF ruling party to account in parliament concerning these amendments. They must keep up the good work.

The Zambian constitution should not be easily amended. A constitution that can be changed and amended overnight is not worth the paper it is written on. By trying to rush through constitutional amendments, the PF are undermining a very important principle of constitutional vitality: the fact that the constitution cannot and should not be routinely amended. It does not matter that the PF have a majority in parliament. A majority in parliament is no reason enough to bulldoze their way with constitutional amendments. My suggestions above will ensure that the PF takes the time to reflect with the people of Zambia directly and to involve all parliamentarians in amending the constitution that truly needs some amendments.

Which provisions then need reform?

  1. The PF want to bring back deputy ministers. This is unacceptable. We already have 30 ministers and 10 additional provincial ministers, there is no need for any more ministers. Zambia is supposed to be exercising some level of shrewdness and not go on a huge spending spree on more deputy ministers. If His Excellency Lungu comes across this article, I ask him not to give in to the temptation of over bloating cabinet and ministers. We have enough ministers.
  2. PF is also trying to amend the 50+1 provision. There is some sense in doing that. But this provision must not be amended without some discourse with all stakeholders.
  3. Parliament also needs to look at the Constitutional Court and give it statutory jurisdiction over the Bill of Rights. If it has to wait for the referendum, parliament can simply give high court jurisdiction to constitutional court judges as well so that they can have the jurisdiction over the Bill of Rights.
  4. Parliament needs to look at the ambiguous provisions of what happens during presidential petitions.
  5. Another area that might need reform is local government. So far we are getting conflicting interpretation about the executive status of mayors. Parliament needs to look at this very closely.

The most important of the suggestions I have provided above is that the PF and President Lungu must begin some form of dialogue. In discourse we trust and must trust as a true democracy.

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Organising the Law: Towards a theory of legal presumptions in the common law

By E. Munshya, LLB, LLM, MBA, M.DIV.

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Of the Alberta Bar

The law, like life itself, is not an exact science. Or perhaps we could say, the law is both a science and an art, with the art part being much more pronounced. Since time immemorial, the desire for the truth, the whole truth and nothing but the truth has consumed the common law legal tradition throughout the world. However, for the law to arrive at the truth, it must work under some well-founded presumptions. A presumption is a truth assumed by the law, unless it is rebutted by other facts to a requisite standard of proof. Legal presumptions are necessary so that the law is predictable. Without legal presumptions, the common law legal tradition would be much more complex and hazardous than it already is. The law uses presumptions to arrive at truth, for truth is impossible without basic foundations upon which truth could be built. Presumptions are the building blocks of truth. Legal presumptions are the troughs that guide the rivers of justice. Legal presumptions do help organise the law and the society in which it functions. Without legal presumptions, we will be like beasts unguided by the restraints of law. Presumptions are not the truth per se, but a guide towards the truth. There are too many presumptions at law and they would not fit this article today. But let me hasten to mention a few.

The first presumption is the that of innocence. In criminal law, an accused person is presumed innocent until proven guilty by a competent and impartial tribunal. The law here does not state that an accused is innocent, but rather that they are “presumed” innocent. The law creates and imputes upon all people, including the accused, a blanket of innocence. It is from innocence that a case can then be built against the accused until they are convicted. Bizarrely, even when you catch a thief piddling into your house at midnight, the law still presumes that they are innocent until a competent and impartial tribunal rules otherwise.

400px-Coat_of_Arms_of_ZambiaThe second presumption is that a court intends to stay within its jurisdiction. In the Zambian system of justice, we have several courts. Broadly, these courts can be divided into courts with common law powers (courts which are courts because they are courts!), statutory courts (deriving almost all of their powers from statute or the constitution), customary courts (courts under customary laws), and statutory tribunals (such as a tax or revenue tribunal). Navigating through the maze of jurisdiction is one of the finest distinction of legal practice. Recent events in Zambia show us how ambiguous and confusing the question of jurisdiction can get. After the August 11 2016 elections, we learnt a lesson or two about which court has primary jurisdiction over the Bill of Rights. Both Mr. Hichilema and Mr. Mwamba have taken their jurisdictional argument from the Constitutional Court to the High Court. We are watching closely how those matters will be resolved. But for now, as an organisational tool, there is a presumption that a court hearing a matter intends to stay within its jurisdiction. If for example, a tax tribunal entertained a matter it has no jurisdiction over, a higher court reviewing the acts of the tribunal will have to overrule that tribunal on the basis that it had no powers so to act. When a higher court rules on that question it will be effecting this important presumption: a court is presumed to stay within its jurisdiction.

The third presumption is that of gifts and donations. The law presumes that people do not intend to give gifts but to buy a bargain. If someone gives you K10,000.00 and says to you, “here is the money for you to buy a car or to buy a house”, the law presumes that the money you are given is not a gift, but is given to you in exchange for something or a bargain. A person who gives another person something is presumed to be wanting something from that other person in return. The receiver of the gift must in turn rebut that presumption if it is called into question. This theory is far much broader though, and I hope in trying to simplify it, I am not sacrificing the broader complexities of the gifts, the giver, and the given.

A fourth presumption is that of intention and consequences. Here is how it is stated: a person is presumed to intend the consequences of their actions. If you act in a certain way, the law presumes that you intended the consequences of that action. That presumption may be open to a rebuttal, but at least at the very basic and organisational level, you are presumed to intend the consequences deriving from your actions. A few months ago, a Zambian at an airport in South Africa, rather naively and jokingly told a nosy customs agent that he was entering South Africa with a bomb in his luggage. The airport went into lockdown and the Zambian was arrested. If your actions cause panic, the law will presume that you intended to cause panic even if a joke is what is was on your mind!

A fifth presumption is that of family. A child born out of a married couple living together is presumed to be the natural child of the husband. The law does not leave this matter to further proof. This is how bizarre it can get. Let us assume for a very strange reason an African, black married couple have a child that looks biracial, the law presumes that the man married to the mother is the natural father, even if he could as well not factually be the father. Practical facts and legal facts could be at odds sometimes. The law does not ask questions unless that presumption is certainly rebutted by positive evidence. A husband cannot refuse paternity of a child simply because a child looks like the neighbour! Unless rebutted, the law presumes that “you are the father”.

There are many other presumptions: a presumption of death: a person who disappears for specific number of years is presumed dead. There is also the presumption of birth: a child found wandering on Zambian soil without relatives is presumed to have been born in Zambia, even if factually they could as well have been born in Lilongwe or Lubumbashi. There is also the presumption of power: a person with statutory powers is presumed to intend to stay within that power. I will end here for now.

_________________________________________________________________ The Author is a Zambian thought leader and pentecostal minister practicing civil litigation, estate law, and administrative law at West End Legal Centre, in Calgary, Alberta, Canada. In addition to seminary education, Elias holds an LLB from England, an LLM from Northwestern University in Chicago, and an MBA in Law from Wales.

Zambia’s Constitutional Court Must Assume Concurrent Jurisdiction over the Bill of Rights: Here is why

By E. Munshya, LLM, MBA, MDIV

Where should Zambians go to enforce the Bill of Rights? Should it be the Constitutional Court (ConCourt)? Or the High Court? Or can Zambians go to both? Why can’t both the High Court and the Constitutional Court have concurrent jurisdiction? The rulings coming from the ConCourt seems to suggest that they do not want to have anything to do with the Bill of Rights. They are reading the current constitution too strictly. Honestly, we cannot have a divided jurisdiction where someone who has a constitutional question that engages the Bill of Rights will have to go to the High Court instead of receiving help from one court. I believe though that the ConCourt should assume jurisdiction over the Bill of Rights. It is the right thing to do.

The Zambian Bill of Rights is part of our constitution. It is the entrenched part of the constitution. Constitutional entrenchment is some kind of legal fiction, basically, stating that of all the constitutional provisions, the Bill of Rights is more deeply buried and much more difficult to amend. Whereas parliament can amend all the other parts of the constitution, a referendum is needed to change or amend the Bill of Rights. A referendum is needed so that there is direct input of the electorate into the entrenchment of the Bill of Rights. The Bill of Rights assures citizens of fundamental human rights such as the freedom of assembly, association and conscience. It also safeguards several fundamental rights such as the right to be heard and the protection from unreasonable search and seizure.

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E. Munshya

When at the beginning of the year 2016, President Edgar Lungu signed the 2016 amendments to the 1991 Constitution into law, he could not sign the new Bill of Rights into law as it needed the referendum. Well, on August 11, 2016 when the referendum was held, the new Bill of Rights was rejected as it did not meet the required threshold. This led to the failure of the referendum question. A new Bill of Rights was not entrenched leading to a situation where we have a new constitution (I am using “new” here even if it is just an amendment), with an old Bill of Rights. While Zambia has an amended constitution in almost all areas, one area that has remained unchanged is its Bill of Rights. Constitution 2016, however, established the Constitutional Court to be the highest court over constitutional matters. In some respects, such as a presidential petition, the ConCourt has original and final jurisdiction.

The proposed Bill of Rights, which was rejected on August 11, 2016, provided that the Constitutional Court would have jurisdiction over the Bill of Rights. However, after the failure of the referendum, the current Bill of Rights provides that those aggrieved may enforce the Bill of Rights only in the High Court. It is absurd to have a Constitutional Court that has no jurisdiction over the Bill of Rights. We must find a way to resolve this absurdity. I propose the following.

First, Zambia could hold another referendum and put a simpler question to the electorate. Instead of amending the whole Bill of Rights, it could be possible to simply ask the electorate to vote on giving the ConCourt jurisdiction over the Bill of Rights. This step would be quite expensive and after the recent elections, our people are quite tired of campaigns and voting. This route might prove difficult.

The second proposal is to ask that parliament passes an un-entrenched provision in the current constitution giving the Constitutional Court some jurisdiction over the Bill of Rights concurrent with the High Court. This should not be controversial as parliament does enjoy some level of sovereignty as the law maker and law giver in our democracy. While the entrenched provisions of our Bill of Rights are clear that parliament cannot unilaterally amend the Bill of Rights, the law should recognise parliament’s ability to help our courts enforce the Bill of Rights. By giving the ConCourt jurisdiction over the Bill of Rights, parliament is enforcing the law and showing strong fidelity to the rule of law.

The third proposal is directed at the Constitutional Court itself. The Court should peel away at its recent rulings and reclaim jurisdiction over the Bill of Rights. It is absurd that we should have a Constitutional Court which is refusing jurisdiction over helping citizens enforce their fundamental rights. The Bill of Rights is part of the Constitution, and the ConCourt has jurisdiction over the entire constitution. This entire constitution, I must submit, includes the Bill of Rights in spite of what the Bill of Rights says about jurisdiction. What happened during the presidential petition where Mr. Hichilema and Mr. Mwamba had to engage the High Court to enforce their rights under the Bill of Rights should have been avoided had the ConCourt accepted jurisdiction over the question. What is even more bizarre though is High Court Judge Chitabo’s ruling that he too could not accept jurisdiction over Mr. Hichilema’s fundamental rights as his case had already been handled by a court higher than his! Judge Chitabo played ping-pong and the Constitutional Court must stop this High Court-ConCourt ping-pong by assuming and accepting some jurisdiction over the Bill of Rights.

The fourth proposal is that if none of the three proposals above work, then the President should appoint the current ConCourt judges to the Lusaka High Court as well. In that case, they will be able to have both High Court and Constitutional Court jurisdiction. If we continue under the legal fiction that the Bill of Rights should be enforced in the High Court only, the ConCourt judges can circumvent that limitation by sitting as High Court judges. In that situation we will have a win-win situation. Those with Bill of Rights grievances can still go to the High Court, but those with constitutional issues that trigger the Bill of Rights can still be heard by ConCourt judges who also have concurrent High Court jurisdiction by virtue of parliamentary appointment.

Constitutional Court judges are best suited to handle the Bill of Rights. They should forthwith assume jurisdiction without fail.

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A Zambian holding three law degrees from England and Chicago, USA, Elias Munshya is a  seminary trained pentecostal minister practicing law in Alberta, Canada.