I wish to comment on recent statements made by Patriotic Front President Michael Sata, Attorney-General Mumba Malila and Law Association of Zambia President Elijah Banda regarding the term of office of the Republican president who is going to be elected on October 30, 2008.
According to Mr. Sata, there should be no presidential elections in 2011 because whoever will be elected president in this month-end’s election is supposed to rule for five years. Messrs Malila and Banda, like Justice Minister George Kunda, have insisted that the Republican president who will be elected on October 30, 2008 should serve until 2011, to complete the remainder of the time the late President Mwanawasa would have been in office.
These conflicting statements reflect a possible misinterpretation (by Mr. Sata or the other three individuals) of Articles 34, 35, 36, 37, 38, and 88 of the 1996 Republican constitution. Otherwise there could be a flaw in the Articles involved.
In proceeding with my comment on this matter, I wish to pose the following question: What would have happened if the President had died 5 or so months before the next tripartite elections in 2011? Would a presidential by-election have been held within 90 days as provided for in the 1996 Republican constitution? Would it not be impractical to hold a presidential election after a new Republican president has held office for only 2 or so months?
There seems to be a problem in the interpretation of the Articles involved in this case, particularly with respect to “general elections” and the “dissolution of parliament.” Article 88 (7), for example, states that: “Whenever the National Assembly is dissolved under this article, there shall be Presidential elections and elections to the National Assembly and the first session of the new Parliament shall commence within three months from the date of the dissolution.”
This Article does not say that a Republican president can only be elected whenever Parliament is dissolved. Neither does it say that a President elected after a by-election has to face another presidential contest before serving a full 5-year term provided for in Article 35 (1) of the 1996 Republican constitution. It also does not say that Presidential, Parliamentary and local-government elections have to be held concurrently. The Article, however, seems to assume that there is no death, incapacitation, resignation, or impeachment of the incumbent president.
Article 35 (1) of the 1996 Republican constitution, on the other hand, states that: (1) subject to clause (2) and (4) every president shall hold office for a period of five years. Clause 2 relates to the two term limitation on the Presidency, while Clause 4 reads as follows: a person assuming the office of the President in accordance with this Constitution shall — unless (a) he resigns his office, (b) he ceases to hold office by virtue of Article 36 or 37, or (c) the National Assembly is dissolved — continue in office until the person elected at the next election to the office of President assumes office. [Articles 36 and 37 of the Constitution deal with the removal of the President for incapacity and impeachment, respectively.]
Apparently, Article 35 also does not suggest that whoever will be elected as President during the Presidential elections should hold office only for the remainder of the period before the next general elections.
So, the assumption one can make from the relevant Articles in the 1996 Republican constitution is that Parliamentary and local-government elections would be held in 2011, and a Presidential election, on the other hand, would be held in 2013. This is perhaps the point Mr. Sata is making.
It is unbelievable that Zambia, a 44-year-old country, would be grappling with problems associated with leadership succession.
I hope I am not one of the few Zambians who are having trouble in interpreting the Articles in the 1996 Republican constitution relating to this matter. But it surely explains partly the reason for having an elective vice-presidency to provide leadership when there is a death, incapacitation, resignation, or impeachment of the President until the next general elections.
Finally, I wish to implore Zambians to agitate for inclusion of the following in the new Republican constitution currently being considered by the National Constitutional Conference (NCC) in order to circumvent the costs associated with presidential, parliamentary or any other by-elections in future:
- A constitutional clause requiring each and every candidate for the Republican presidency to have a running mate, who would provide leadership until the next scheduled general elections in the event of incapacitation, resignation, impeachment, or death of the President.
- A constitutional clause providing for a political party that loses a Member of Parliament or any other elected government official due to death or incapacitation to appoint a replacement to serve the remainder of the incumbent’s term.
- A constitutional clause providing for a Member of Parliament or any other elected government official who loses a seat through a nullification of his or her election by a court of law to be replaced by a candidate from another political party or an independent candidate who secured the 2nd highest number of votes to serve the remainder his or her term.
- A constitutional clause providing for a parliamentary or any other elective seat that becomes vacant due to an incumbent’s expulsion from his or her political party, or due to his or her decision to voluntarily leave his or her party, to be filled through an appointment of another member of the political party by the party’s national executive committee to serve the remainder of the term.
- A constitutional clause providing for a Member of Parliament or any other elected government official whose political party ceases to exist due the dissolution or de-registration of his or her political party to become an independent elected official and serve the remainder his or her term.
- By-elections should be held only in the case of unopposed office bearers; or in the case of non-availability of persons with the 2nd highest number of votes due to death or incapacitation of the persons with the highest number of votes, or due to a tie in the number of votes obtained by persons with the 2nd highest number of votes, or due to any other reasons.
Besides, Articles 46(2) and 47(3) of the Republican constitution, which restrict an incumbent Republican president to making ministerial appointments only from members of Parliament, need to be replaced so as to provide for Cabinet-level appointments from the Zambian society at large. This can afford an incumbent President a larger pool of people from which he or she can constitute a Cabinet, as well as provide for greater separation of the legislative and executive branches of government. [Thanks to Murray for suggestions to improving the wording in this paragraph.]
Appointment of Cabinet Ministers from non-Members of Parliament can also afford presidential aspirants enough time to identify potential ministerial appointees well before tripartite elections rather than waiting for Parliamentary elections to be concluded.
Henry Kyambalesa (Guest Blogger)
Agenda for Change