Why is Edgar Lungu going to court?
On 9 December 2023, Michelo Chizombe filed a petition (a formal written request to the court) against Edgar Chagwa Lungu, the Electoral Commission of Zambia, and the Attorney General as first, second, and third respondents (the parties answerable to the claims brought to court), respectively. The petitioner (the person who took the matter to court)—Chizombe—is challenging Lungu’s participation in the 2021 elections as the Patriotic Front party presidential candidate and his eligibility to participate in future presidential elections. Chizombe believes that Lungu had served two terms of office, having been sworn in the first time, in 2014, and again in 2016.
Chizombe wants the court to declare that:
1. The Electoral Commission of Zambia’s inclusion of Lungu on the 2021 ballot was unconstitutional;
2. Lungu’s participation in the August 2021 election was unconstitutional
3. Lungu is not eligible to contest a presidential election under the current Constitution as read with the repealed 1991 Constitution as amended;
4. That the entire Article 106 of the Constitution as amended by Act No. 2 of 2016 did not apply to Lungu’s presidential term between 25 January 2015 to 13 September 2016; and
5. Lungu Is not eligible to seek presidential office for a third term.
Haven’t these issues been decided before?
Before this petition, three similar petitions have been brought before the court and decided on:
- Daniel Pule and Others v The Attorney General and Others (2018): The Presidential term of office that ran from 25th January, 2015 to 13th September, 2016 and straddled two constitutional regimes considered as a full term.
- Bampi Aubrey Kapalasa and Another v The Attorney General (2021): The presidential term of office that ran from 25th January, 2015 to 13th September, 2016 and straddled two constitutional regimes cannot be considered as a full term.
- Legal Resources Foundation Limited and 2 Others v Edgar Chagwa Lungu and Attorney General (2021): We hold that the Presidential term served by the 1st Respondent [Edgar Chagwa Lungu] from 25th January, 2016 to 13th September, 2016 when considered in light of the framers of the Constitution and on the holistic approach we took in interpreting Article 106 of the Constitution in its entirety in the Dan Pule case, cannot be considered as a full term for purposes of Article 106(3). Consequently, we find that Article 106(3) of the Constitution does not bar the 1st Respondent from contesting the forthcoming presidential election scheduled for 12th August, 2021.
What has Lungu said about this?
He thinks the question of whether or not he is eligible to contest future elections has already been decided multiple times and should, therefore, not be entertained further by the court. He also says that the court does not have further official authority to hear the matter since it had already previously ruled on this.
What really is the issue that the people who keep going to court want?
The heart of the matter is that when Edgar Lungu came into office the Constitution that was in force said that any person who had held office twice or had been elected twice could not stand again. In 2016, the Constitution was amended, and a term of office is now defined as a period of three years or longer. It does not, however, state what should happen in the case of someone who comes into office between the two Constitutions like Lungu, who was elected into office for the first time in 2015 under the old Constitution but the new Constitution came into effect during his second term. Some people argue that the new provision of serving a substantial part of the term (three years or more) does not apply to Lungu while he and others say that it does.
Why does Lungu want to remove some judges from hearing this case?
He believes that he would not get a fair trial if Justice Mulela Margaret Munalula, Justice Arnold Shilima, and Justice Maria Mapani Kawimbe were part of the judges hearing and deciding his case may be biased because they are close to President Hakainde Hichilema. Judge Munalula had ruled against him in a similar previous matter.
Who appointed the judges?
When he was president, Edgar Lungu appointed and swore in several judges including Justice Munalula as a judge of the Constitutional Court on 23 March 2016. Justice Kawimbe was appointed on 3 April 2016. Judge Shilimi was appointed by President Hichilema on 13 February 2023.
What is next in the process?
Today, the court will decide whether the three judges should recuse (excuse) themselves from being part of the bench that hears and decides this case.
