26/03/2025
ECL's eligibility case back in Court!
FORMER President Edgar Lungu’s debate over his eligibility to contest future elections is back in court.
The Tonse Alliance, through spokesperson Sean Tembo, has argued that the recent judgement declaring Mr Lungu ineligible to contest the 2026 and future elections was arrived at per incuriam(lack of due regard to the law or the facts).
They argue that the December 2024 decision barring Mr Lungu from contesting future elections contravened Article 52(4) of the constitution because the decision was made when the former President had not filed any nomination papers at the time.
Mr Tembo said this is so because Article 52(4) of the constitution requires that such a determination relating a person’s eligibility to contest an election should be challenged after a person files his nomination papers in future elections.
“The decision by the Constitutional Court under cause 2023/CCZ/0021 to declare Mr Edgar Changwa Lungu(ECL) ineligible to participate in future elections before he could lodge his nomination papers in accordance with article 52(1) of the constitution, is a contravention of article 52(4) of the constitution, which requires that such a determination be done after a person files his nomination papers in future elections,’ Mr Tembo submits.
He adds that the said decision barring Mr Lungu was made per incuriam on the basis that, in determining the question of whether the provisions of Article 106(6) applied to Mr Lungu, who was then the person occupying the office of the President, the court never took into account the provisions of Article 267(3)(b)(c) of the Constitution.
Mr Tembo said a reference to a person holding an office of the President should have been read with any modification necessary to make it applicable in the circumstances to Mr Lungu, who was holding office at that particular time, which amendments came into law on January 5,2016.
He further argues that the Con-Court never took into account the precedent in the Daniel P**e matter and the Legal Resources Foundation case under cause 2021/CCZ/0025 and Sishuwa Sishuwa and Chapter one Foundation Limited case under cause no.2021/CCZ/0027 wherein the court had ,in all cases, holistically considered the provisions of Section 2,6 and 7 of the constitution of Zambia amendment,2016
Mr Tembo now wants the court to interpret whether in terms of Article 267(3)(b)(c) as read together with article 106(1)(3)(6) , a reference to a person elected to the office of President was reference to Mr Lungu, a person who was holding the office of President at that particular time and whether provisions of article 106(1)(3)(6) were to be read with the modification necessary to make them applicable in the the circumstances.
Once that is determined, the politician wants a declaration and order that the ConCourt's determination on December 10,2024, regarding the eligibility of Mr Lungu to contest future elections, prior to the formal submission of his nomination, contravenes article 52(4) as read with article 100 of the Constitution.
He further seeks a declaration that an interpretation on whether,in terms of articles 267(3)(b) and 267(3)(c) ,read together with article 106(1)(3) ,and 106(1)(6) of the constitution of Zambia,the reference to a 'person elected to the office of president ' includes Mr Lungu ,who was the incumbent President at the material time and article 106(1)(3) and 106(1)(6) ,when interpreted with the necessary modifications,applies to circumstances in the office of the President as they existed on Jan 5 ,2016.
Credit: Mwebantu
