By Dr. O’Brien Kaaba and Professor Melvin Mbao
December 24, 2024
The Constitutional
Court on 10 December, 2024, delivered its much anticipated case challenging
President Lungu’s eligibility to contest presidential elections. This matter
gripped public attention since it was filed in October 2023 and has been
subject of speculation, suspicion and misinformation. Indeed, the eligibility
of former President Lungu to run for office has been subject of debate since
about 2018 and three other cases prior to this reached the Constitutional
Court. In this matter, Michelo Chizombe filed a petition challenging the eligibility
of former President, Edgar Lungu, to contest future elections. Although there
were many reliefs sought, the petitioner essentially sought the Constitutional
Court’s interpretation and determination if Lungu qualified to stand for
presidential elections in future and if not, if the ineligibility operated in the
2021 general elections in which Lungu stood as an incumbent presidential
candidate but lost. In this commentary, we argue that the Court made the
correct decision and we demonstrate that as a terminal Court, it has power to
depart from its own precedents. We, however, disagree with the Court’s finding
that Lungu was eligible to stand in 2021.
The case has a
unique background. President Michael Sata died in office in October 2014. As
required by the law then, an election was held within 90 days of the occurrence
of the vacancy. Lungu was elected as president and assumed office in January
2015. At the time Lungu assumed office, article 35 of the Constitution limited
a presidential term as follows: “(1) Subject to clauses (2) and (4) every
President shall hold office for a period of five years; (2) Notwithstanding
anything to the contrary contained in this constitution or any other law, a person
who has twice been elected as president shall not be eligible for re-election
to that office.” (emphasis the authors’)
The import of this
provision is that, although ordinarily a presidential term is five years, if
one served a shorter period for whatever reason, that was considered a full
term. What matters is that person went
through an election and was elected to office. Having been elected twice was a
bar to contest further elections.
However, about a
year after assuming office, President Lungu assented to the Constitution of
Zambia (Amendment) Act No. 2 of 2016 which extensively amended the Constitution
and repealed and replaced article 35. Article 106(3) in the new constitutional
framework stated that “a person who had twice held office as President is not
eligible for election as President.” Article
106 also revised the conceptualization of the term of office where the
president came into office mid-term and also abolished the holding of mid-term
elections as the vice president would now automatically assume office for the
unexpired term of office. When a vice president assumes office in this manner,
s/he is deemed “to have served a full term as president if, at the date on
which the President assumed office, at least three years remain before the date
of the next general election.” If the remaining period is less than three years
before the next general election, then the President is deemed not to have
served a term of office as President.
Considering that
Lungu was elected as president and served in that capacity from 2015 to 2016,
and was re-elected for another term from 2016 to 2021, it is clear that he had
been elected into office twice. The dispute, therefore, was largely about the
applicable law to his situation. If it was the repealed article 35 then he
would obviously not qualify to contest any further elections once his term
expired in 2021. But if it was the new article 106(6), and since his first term
was less than three years, then he would have been deemed not to have served a
term of office as president. As a result, he would still be entitled to contest
elections post-2021.
The Constitutional
Court held that Lungu was ineligible to contest future presidential elections.
This was based on the Court’s finding that Lungu’s first term was governed by
article 35, as read with section 7 of the Constitution of Zambia Act No 1 of
2016, which is the saving clause governing the transition between the pre-2016
and post-2016 constitutional amendment. Having taken this position, the Court
reasoned that article 106, which deemed a period of less than three years as
not a term of office, as inapplicable to Lungu as it could not be applied
retroactively. By so holding, the Court vacated three of its precedents
relating to the same question of Lungu’s eligibility to stand in future
elections.
In relation to whether
Lungu was qualified to sand in 2021, the Court held that his candidature in
2021 was based on its decision in the case of Legal Resources Foundation
Limited and 2 Others v Edgar Chagwa Lungu and Attorney General, CCZ Selected
Judgment No 27 of 2021.
The case raises
two important legal issues, which we wish to explore further below. The first
is the power of an apex court, such as the Constitutional Court to depart from
its precedents. The second is about the eligibility of Lungu in the 2021
elections in which he stood and lost. This raises an important constitutional
question since the Court found that Lungu was ineligible to contest future
elections.
Regarding the
power to depart from its precedents, the Court surveyed jurisprudence from five
other common law jurisdictions and concluded that it had inherent power to
depart from its own precedents. However, it noted that this should only be in
exceptional and compelling circumstances. The compelling circumstances in this
case were the fact that the Court previously failed (for unstated reasons) to consider
sections 2 and 7 of the Constitution of Zambia Act No 1 of 2016 as read with
article 35 of the Constitution. Thus, the Court dismissed arguments that it had
no power to depart from its decisions as fundamentally flawed.
We agree with the
position taken by the Court on this point and assert that as a terminal or apex
Court, it has power to depart from its precedents. There is no provision in the Constitution
that prohibits the Court from departing from its precedents. We are not aware
of any apex Court in the Commonwealth jurisdictions which is prohibited from
vacating its precedents under specific circumstances. The very conceptualization of the
constitution as a living document entails that Court interpretation cannot be
frozen in time as the Courts have to respond to developments in society to keep
the law relevant, meaningful and effective. As the Indian Supreme Court stated,
the Supreme Court as an apex Court responsible for developing the law “is not
bound to accept an interpretation which retards the progress or impedes social
integration.”
While precedents
are important for certainty (and predictability) in law and avoidance of the
impression that courts make decisions arbitrarily, certainty is not the only
goal of responsive adjudication and in certain circumstances may have to yield
to other compelling values of responsive adjudication. This explains why the House
of Lords in England abandoned the view that it was bound by its precedents. For
some 100 years the House of Lords (now renamed Supreme Court) considered itself
bound by its precedents. This was changed by the Practice Statement
(Judicial Precedent) [1966] 1WLR 1234 where the Court considered the “use of precedent as an indispensable
foundation upon which to decide what is the law and its application to
individual cases” as it provides “at least some degree of certainty upon which
individuals can rely in the conduct of their affairs.” However, the Court went
further to state the basis for the need to depart from its precedents: “Their
Lordships nevertheless recognise that too rigid adherence to precedent may lead
to injustice in a particular case and also unduly restrict the proper
development of the law. They propose, therefore, to modify their present
practice and, while treating former decisions of this House as normally
binding, to depart from a previous decision when it appears right to do so.”
Examples of cases of the House of Lords departing from its
precedents are many but for illustration here are three. In British Railways
Board v Herrington [1972] 1 All ER 749 the House of Lords had to deal with
its various precedents that there was only a very limited duty of care in
negligence owed to children who trespassed onto property. In this case the
Court departed from all these precedents to impose a positive duty of care in
keeping the railway line fences repaired. In Miliangos v George Frank
(Textiles) Ltd [1975] 3 All ER 801, the House of Lords departed from its
precedents to the effect that all awards in an English court had to be made in
sterling. The final House of Lords case example is that of R v Shivpuri [1986]
2 All ER 334. In an earlier case (Anderton v Ryan [1986] 2 All ER 355),
the House of Lords had decided that a defendant was not liable for an attempt where he
mistakenly believed himself to be carrying out an illegal act that was in fact impossible
or innocent if completed. In this case, the House of Lords vacated this
precedent and held that a mistaken belief by the defendant that he was
committing an illegal act that was in fact innocent can render him liable for
attempt even if the act was not in fact illegal.
Beyond the English precedents,
recently the Supreme Court of the United States of America (USA) shocked the
entire world with its decision in Dobbs v Jackson Women’s Health
Organization, 597 US _
(2022).
The majority in Dobbs overruled the famous Supreme Court judgment in Roe v Wade, 410 US 113
(1973),
and completely reversed course on the constitutional right to an abortion for
women.
The Canadian Supreme Court also takes
the same approach that it can depart from its precedents under narrow
circumstances. In 2022, the Supreme Court issued two major cases to this
effect. In R v Sullivan, 2022 SCC 19
(CanLII), the Supreme Court indicated that it could depart from its precedents
in narrow circumstances. Then in R v Kirkpatrick, 2022 SCC 33 (CanLII), the Supreme Court
elaborated three circumstances under which it could depart from its precedents
as follows: “1.The Court rendering the
decision failed to have regard to a binding authority or relevant statute (“per
incuriam”); 2. The decision has proven unworkable (“unworkability”);
or 3. The decision’s rationale has been eroded by significant societal or legal
change (“foundational erosion”).”
These cases illustrate that the
position taken by the Zambian Constitutional Court that it has inherent
jurisdiction to depart from its precedents in narrow circumstances is, to our
knowledge, the standard followed by terminal courts in common law jurisdictions across the world.
We now turn to the eligibility of former
President Lungu in 2021. The question relates to a past event in that Lungu
already stood and the election passed. The Constitutional Court held that
Lungu’s stood in 2021 on the strength of its decision in the Legal Resources
case. By this, the Court meant that he was eligible to stand in 2021. We
disagree with the thinking of the Constitutional Court on this score. Apart
from creating the absurdity that someone was eligible in 2021 but not in
subsequent election while his legal status is still the same, we believe the
holding violates the supremacy clause of the Constitution.
The Supremacy clause of the
Constitution is framed as follows: “This Constitution
is the supreme law of the Republic of Zambia and any other written law,
customary law and customary practice that is inconsistent with its provisions
is void to the extent of the inconsistency.”
The import of this provision is that any law or practice
that is inconsistent with the constitution is void ab initio. In
a constitutional democracy such as Zambia, the supremacy of the constitution
means that laws or conduct inconsistent with the constitution are invalid and
that a court must declare them to be so. Since the Constitutional Court held that Lungu was barred on
account of article 35, which was the applicable law even in 2021, it follows
that Lungu was ineligible even in 2021.
However, this position does not entail that there would
have been any disruptive impact on the 2021 election, as was argued in the
amicus brief by learned State Counsel
Sangwa. Indeed, this position was widely shared by many and formed part of the
misleading narratives as the public was fed social media narratives that
holding that Lungu was ineligible would automatically render the 2021 election
invalid and trigger a general election. This position is not only misleading
but demonstrates a narrow understanding of constitutional law.
First, it was not Lungu who won the 2021 election. There
is nowhere the constitution contemplates that the ineligibility of a losing
candidate would affect the election. The ineligibility of a losing candidate
does not and should not affect the outcome of an election. Holding otherwise
would constitute a constitutional absurdity as the constitution would arm wrong
doers with power to disrupt outcomes and no electoral outcome would be safe or
conclusive. However, assuming we are wrong on this score, the holding that
Lungu was still ineligible in 2021 when he stood would still not affect the
outcome of the election as constitutional remedies in such a case are forward
looking. This is known as the prospective annulment doctrine. It works like
this. Sometimes constitutional cases are brought to court many years since the
issue complained of occurred. Many things may have changed and the legal status
of many people and institutions changed. And in many instances the hand of the
clock cannot be brought back to redo what should have been the correct
constitutional conduct. In the current case, for example, the 2021 election
cannot be re-enacted in 2026. It is an impossibility. But because constitutional complaints cannot
be time barred (arising from the supremacy of the constitution), in such cases,
the courts can hold that the unconstitutional conduct is invalid from the time
it fell afoul of the constitution, but that the consequence of this finding
would be forward looking. That is, the order of invalidity would not apply
retroactively but prospectively. In the current case, the Court could have
found Lungu ineligible in 2021 but held that the order of invalidity (ineligibility)
would be forward looking.
Taking this approach helps the court to uphold the
supremacy of the constitution without the disruptive consequences in an
impossible situation and ensure that in future the concerned unconstitutional
practice does not occur. Prospective annulment enables the courts to balance
the “disruptive effects of an order of
retrospective invalidity against the need to give effective relief to the
applicant and similarly situated people.”
There is ample
comparative jurisprudence on this score. The South African Constitutional Court
in the cases of The State v Bhulwana Case No. CCT12/95 and The State
v Sipho Zakele Ntsele case No 25/97, for example, having found some
criminal laws to be unconstitutional, declined to apply the order of invalidity
retroactively as it would be disruptive and emphasized the need to balance the
need to provide effective remedies and avoid disruptive consequences of an
order of invalidity. Similarly, the East Africa Court of Justice in the East African Law Society v Attorney
General of the Republic of Kenya which challenged the legality of the heads
of state to amend the treaty without public participation as was required, held
that the amendment was a violation of the spirit and intendment of the East Africa
Community Treaty as well as the established practice of consulting people. Despite
this finding, the Court did not go ahead to annul the treaty amendment but held
that since not all the amendments were incompatible with the Treaty objectives,
invoked the doctrine of prospective annulment, whereby its decision will only
have prospective application.
Although this approach has not been elaborated
thoroughly by Zambian courts, we believe it has nevertheless been applied in
Zambia. In the case of John Banda v The People (1998), the High Court
declared the sentence of corporal punishment in the Penal Code unconstitutional
as it violated article 15 of the Constitution. Considering that article 15 was
in the Constitution since the promulgation of the constitution at independence
in 1964, it would follow that corporal punishment was unconstitutional from the
time article 15 came into force. However, an order of invalidity, if applied
retroactively, would have meant applying the decision of the Court to thousands
of similarly situated people even in the past as many were sentenced to suffer
corporal punishment based on an unconstitutional provision. The decision of the
Court could not undo the fate of those who already suffered the sentence of
corporal punishment. The judgment of the Court, however, did not apply
retroactively.
Our
argument on this point, however, should not be taken to mean that courts should
not redress past constitutional violations. The doctrine of prospective
annulment has well-developed safeguards, which are beyond the scope of this
short commentary to elaborate.
In
conclusion, we agree with the decision of the Court that it has inherent
jurisdiction to depart from its precedents. As an apex Court, the
Constitutional Court has responsibility to develop the law. As an enforcer of
constitutional norms, the Constitutional Court cannot effectively discharge its
mandate without taking an interpretive approach that allows it to treat the
Constitution as a living document that needs to be kept relevant to the
vicissitudes of the country’s experiences. However, we disagree with the
Court’s treatment of the finding that Lungu’s candidature was valid in 2021. If
something is in violation of the constitution, it is null and void. However,
that does not necessarily entail that an order of invalidity should apply
retroactively. It falls on the Constitutional Court to articulate and develop
the law on constitutional remedies further and enrich constitutional
jurisprudence.
ABOUT THE AUTHORS
Dr. O’Brien Kaaba teaches constitutional law at the University of Zambia and is a senior research fellow at Saipar.
Professor Melvin Mbao is Emeritus Professor of Public Law and Legal Theory at the University of the North West in South Africa. Both write in their individual capacities.