A Constitutional Crossroads: Zambia Faces Potential Presidential By-Election in 2025

A Constitutional Crossroads: Zambia Faces Potential Presidential By-Election in 2025.

By Dr. Chris Zumani Zimba

As Zambia approaches December 10, 2024, the nation stands at the precipice of a historic constitutional decision that could redefine its democratic landscape. The Constitutional Court is expected to deliver a judgment on the eligibility of former President Edgar Chagwa Lungu (ECL) to contest the 2021 presidential elections. The implications of this ruling could plunge Zambia into an unprecedented political and constitutional crisis, with the potential for a presidential by-election by March 2025.

Central to this debate is the argument that if ECL was ineligible to run in 2021, then the entire presidential election of that year is tainted. Article 52 of the Zambian Constitution mandates that only qualified candidates may contest presidential elections. If the court rules that ECL was disqualified, it calls into question the legitimacy of President Hakainde Hichilema’s (HH) victory and administration.

Legal scholars, including John Sangwa, argue that a disqualified candidate’s participation in an election renders the process fraudulent and the results null and void. Such a decision would affect both ECL and HH, leaving Zambia without a legitimate ruler—a situation Sangwa describes as rendering Zambia a “bastard state.”

Should the court declare ECL’s participation in 2021 unconstitutional, the consequences would be far-reaching:

1. Nullification of HH’s Presidency: HH and his Vice President would be required to vacate office, as their victory would be deemed illegitimate.

2. Restoration of the 2021 Status Quo: ECL and his running mate, Inonge Wina, would likely be reinstated temporarily to oversee a fresh election within 90 days, as required by the Constitution.

3. Reversal of Government Decisions: All appointments and decisions made by HH’s administration would be nullified, creating a vacuum across all levels of governance.

Political and Legal Turmoil

The potential fallout extends beyond the executive branch:

Financial Repercussions: HH, his appointees, and members of his administration may be ordered to refund all salaries and allowances earned since August 2021, following the precedent set in the 2020 Constitutional Court ruling against former PF ministers.

Judicial Credibility: If the court rules in favor of nullifying the 2021 election, it risks eroding public trust in Zambia’s judiciary and governance systems.

Electoral Chaos: A presidential by-election would disrupt Zambia’s stability, forcing the nation into a costly and divisive electoral process.

The Constitutional Court finds itself in a precarious position. A decision against ECL may satisfy UPND supporters but could unravel the legitimacy of HH’s presidency. Conversely, a decision in ECL’s favor risks reigniting political tensions and calls for accountability over alleged constitutional breaches in 2021.

A Double-Edged Sword

This situation is a legal and political double-edged sword, cutting deep into the credibility of both the PF and UPND. Regardless of the outcome, Zambia’s constitutional democracy faces a critical test. As a nation, we must brace for the repercussions of this landmark decision and advocate for transparency, fairness, and stability in the aftermath.

Dr. Chris Zumani Zimba is a political scientist and former advisor to President Edgar Lungu, offering an expert perspective on Zambia’s democratic challenges.

Below is the full article

A Double Edged Sword: 12 Signs of a possible Presidential Bye Election in March 2025 if Con-Court Departs from its earlier Decisions  on 10th December 2024

…..10th December is a Bad Day for both ECL and HH because if the court decides otherwise, both shall be politically affected. If Con-Court takes a UPND thirsted decision to rule that ECL was ineligible for 2021 and stand as such in 2026, it will naturally nullify 2021 election victory for HH and plunge Zambia into a historic constitutional crisis-Zambia shall automatically become “a Bustard State”. And l know that Bwanaventure Mutale, Makebi Zulu, Jonas Zimba, John Sangwa, Debby Kambwa Aongola, Benjamin Mwelwa,Nkula Botha , Emmanual Tembo, George Chisanga, Charles Changano, Caesar Simukonda,etc, have already prepared litigation papers to petition and challenge the court for the nullification of the 2021 presidential elections and hereby invoke a tragic bye election within 90 days….

By Dr. Chris Zumani Zimba

1. If the tree is poisonous, then it follows that the fruits thereof are just as poisonous as the tree itself. In seeking to arrive at a determination that President Lungu was ineligible to contest the 2021 polls, the court will in effect taint the validity of the entire 2021 presidential polls. The validity of the polls will be brought into question if the Con-court delivers a UPND desired and leaning decision on 10th December, 2024. How can the 2021 presidential election be constitutionally legal if Edgar Lungu, one of the key candidates is deemed to have been disqualified and is treated as someone who illegally contested for power? This new litigant, Chizombe of the UPND has asked the same court to nullify LUNGU’S participation in 2021 and future elections.

2. The court’s decision on 10th December, 2024 will have far-reaching consequences for both ECL and HH as well as Zambia’s democracy and constitutional order. In his legal arguments, Constitutional lawyer, John Sangwa insists that “the logic is basic but crucial to our understanding of the state of affairs. Should the court find Lungu ineligible, it would necessarily mean the 2021 election was unconstitutional and should be nullified”. Sangwa continues that “If an unqualified person took part in an election, that election is tainted and must be nullified,”. These are Sangwa’s arguments in his written submissions as amicus curiae in the eligibility case before the Constitutional court itself. And l fully agree with him!

3. If the court decides that Lungu was not eligible to contest in 2021, it means that HH contested with a disqualified candidate, won against a disqualified candidate and the entire 2021 presidential election stands disqualified as fraudulent, illegal, illegitimate and nullified as provided in Article 52 of the Zambian Constitution. If the Con-Court departs from its earlier decisions on this matter, it means that both ECL and HH will be affected and lose out. Once more, Zambia shall automatically become “a bustard state”-a country without a legitimate ruler.

4. When it comes to the case of LUNGU’S eligibility, there are not shortcuts or simple conclusions as the case stand politically too complex and legally complicated for everyone. The categorical imperative on this score is that a court’s finding today that Lungu was not eligible in 2021 bears the effect that the 2021 presidential elections abrogated Article 52 of the Constitution. In the said Article 52, the legal requirement and instruction is that only “qualified candidates are permitted to participate in a presidential election”. In reverse, ECZ would be found wanted and the entire 2021 presidential election nullified and thereby rendering HH instantly out of power.

5. What is the legal implications on HH’s presidency, his presidential running mate and ECZ team? To start with, HH’s running mate, the current Vice President shall equally find herself on the streets. If the 2021 presidential election is nullified, both HH and his running mate lose out politically and shall need to step aside. The next question is who shall act as president and vice president in there place during the transitional phase of 90 days? Unfortunately, it means Lungu and Innonge Wina must be restored to overseer a presidential bye election and hand over to the correct, legitimate and true successor. It also means restoring the ECZ team of 2021 to administer this presidential bye election of March 2025 as the current ECZ shall be illegitimate and unconstitutional. This shall become politically catastrophic for HH, his entire government and Zambia!

6. What are the legal consequences on HH’s presidential appointments ranging from cabinet ministers, state house aides, the speaker and her deputies, Permanent Secretaries, ambassadors, commissioners, parastatal CEOs, court judges, etc? In December 2020, the Constitutional Court made a landmark judgement against PF former Cabinet ministers, their deputies and provincial ministers when it ordered them to pay back all salaries and allowances for illegally continuing to stay in office for three months after parliament was dissolved ahead of the 2016 general elections. The court gave Hon. Ngosa Simbyakula and 63 others 30 days in which to pay back a total of K4, 266,664 as salaries and allowances for May, June and July 2016. After 10th December, 2024, we are very sure that history shall repeats itself if the court decides against Lungu!

7. Certainly, the 2020 Con-court judgement on PF former Cabinet ministers, their deputies and provincial ministers shall become automatically binding on HH’s presidential appointments ranging from cabinet ministers, state house aides, the speaker and her deputies, Permanent Secretaries, ambassadors, commissioners, parastatal CEOs, court judges, etc this year if the same court makes a UPND desired legal decision! In 2016, the Law Association of Zambia (LAZ) and UPND general secretary, Stephen Katuka had taken the PF former ministers to court and the case was decided in their favour by the Constitutional Court in 2020. This ruling is coming for HH and his appointees!

8. So, if UPND folks think that barring Lungu for 2026 will help them if the Con-court denounces his participation in 2021 elections, let them know that the entire 2021 presidential election will be rendered null and void while HH will automatically be disqualified and removed from office as our republican president. In like manner, all presidential appointments done by HH will be rendered null and void too across board including the appointments new Con-court judges themselves. This judgement shall be a double edged sword cutting out the political wings of ECL, HH and everyone appointed by HH himself! The lawyers for ECL are prepared for this historic legal battle and l hear all the papers are in place for a new legal battle and constitutional war!

9. Unfortunately and ironically for HH and team, everyone shall by law be expected to refund the state treasury all the salaries and allowances obtained since August 2021. This is the legal and political implications of what is coming ahead of them if Lungu is declared otherwise on 10th December. There is no doubt that HH himself, his Vice President and all his appointees shall find themselves in the same shoes of refunding all their salaries and allowances if the worst happens to Lungu this month. The Con-court set a precedent and the UPND government shall not escape this trap! The Constitutional ramification  are that, for Lungu to be maliciously stopped from gracing the ballot in 2026, such a measure will also inevitably trigger a constitutional crisis and government scandal for HH himself!

10. As we conclude, let us consolidate Makebi Zulu, Jonas Zimba and John Sangwa’s forceful submissions before the court: “The court must address its mind to both legal and public policy considerations in determining the question of eligibility. The consequences of a decision that serves as a weapon in the arms of an insecure political elite could be too ghastly for the confidence reposed in the judicial arm of government”.

11. Our learned citizens have further argued that “Whichever way you look at it, there is no exclusion of Lungu from presidential candidacy without birthing a crisis of legitimacy for the current President. There is every good reason to trash the Chizombe UPND induced petition”. Assuming the political elites in State House fear or dislike Lungu for 2026, ignoring these legal concerns and political considerations by compelling the courts to rule against ECL shall be suicide and chaotic for Zambia’s political stability and constitutional order!

12. In other words, On 10th December, 2024, if the court say that ECL was not suppose to run for power in 2021 because he was disqualified on account that he had already served two terms (2015 to 2016 and 2016 to 2021 itself), then Zambia shall automatically become “bustard  state”-a country without a legitimate ruler. Then, they will throw everything into chaos as our voters shall become “political orphans”. What will be the basis of sustaining HH’s 2021 presidential victory and current presidency as if we have no clear laws on such matters?  We have to all accept that the result shall be catastrophic for Zambia’s constitutional democracy and political stability. And Presidential bye elections shall be the only way out!

Dr Chris ZUMANI Zimba is a Political Scientist, Researcher, Author & Consultant specialized in Comparative Global Governance and Democratic Theories. He holds a PhD, MA, BA and Cert in Political Science. Zimba was President Lungu’s Political Advisor from December 2019 to August 2021. By philosophical approach, Dr. Zimba is a Pan Africanist as well as Afro-Christian by religion.
Email: [email protected]