Reading the Constitution and understanding it are two different things

Filed under: Special Comments |

Dr Munyonzwe Hamalengwa

By Dr. Munyonzwe Hamalengwa

Despite the existence of a broadly known precedent of how to draft a clearly understandable document, humankind decided to deviate from this potent document in draftsmanship to murky waters of drafting constitutions that are self-contradictory, with qualifiers, nuances, equivocations and in determinations.  There can be no better drafted document to use as a precedent in constitutional drafting than the Ten Commandments. “Thou Shout Not Kill”. “Thou Shout Not Commit Adultery”. “They Shout Not Bear False Witness”. There can be no debate about what each and all of these commandments say. There cannot be no Machiavellian mischief as to what is meant here. It now behooves  on the person who killed or committed adultery or bore false witness to proffer a defence as to why they committed a prohibited act. Was it self-defence, or denied sex at home in case of adultery or because they honestly believed in the truth of their evidence as they understand it at the time of the happening, in case of false testimony. 

Now in the case of the impugned article of the Zambian Constitution regarding third term for a sitting President, there are so many qualifyers, possibilities, allowances, equivocations and so on making such an important article subject to easy and deliberate interpretations, understandings and or misinterpretations by both Machiavellians and well-meaning people. If the Ten Commandments were used as a model, this article would simply have stated: “Any person who has been elected twice to the office of the President, shall not be eligible to be elected for the 3rd consecutive term”. End of the matter. Not even Machiavelli can manipulate this. Cicero, the presumed greatest orator of all time could not argue this out of existence either. It is so clear.

Someone can’t say I have read the constitution and I believe I can run again a third time. However, in the present constitution, reading the constitution and understanding it are two different things. The President had once said he had read the constitution on ministers remaining in office during elections and that he was right. The Constitutional Court said he was wrong. The President is thus not the best authority of the meaning of the constitutional clause pertaining to the 3rd term. There is also self-interest.

But this debate should await until the current more important issues are resolved, namely the disputed election and secondly whether the government is implementing its major electoral platforms while the legitimacy of the claim to power is being contested if any. It is so contemptuous of the Zambian people and rule of law to start talking of 2021. What happens to delivering to the people of Zambia between 2016 and 2021 instead of politicking and wasting peoples energies by diversionary tactics. As Mr. Chishimba Kambwili has correctly and eloquently, reasoned, lets deliver to the people of Zambia. As I am writing, agricultural inputs have not been delivered to many parts of Zambia. I know this because I have a maize field in eastern Monze and I am waiting for agricultural inputs and we are going into the third week of January. No government in the history of Zambia has so much neglected agricultural as this government. And agriculture can rescue this country from poverty! Gosh.

Dr. Munyonzwe Hamalengwa teaches Criminal Law and Jurisprudence at Zambian Open University in Lusaka

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3 Responses to Reading the Constitution and understanding it are two different things

  1. A well written article. Zambia should get its priorities right. The 2016 Elections were disputed and a Petition on this is alive in Court.Lets resolve the Election Dispute first and we have at least 5 years to interpret the Constitution regarding 2021 Election Eligibility. Its now 4 months after the Petition was filed in Court and up to bow it has not been heard.This Petition is a serious distraction from current problems bedeviling our economy. The Petition should be heard and finalised so that Zambians know who truly won the 2016 Elections. HH thinks he is the Winner of the Election and now it is up to Lungu to prove in Court that he indeed fairly and genuinely won this Election. Once Lungu has done this and he is declared the Winner by the Court, then Zambians will have no reason to doubt his legitimacy as President of Zambia and the Nation can then reconcile,heal and move forward.

    Chanda
    January 12, 2017 at 8:43 am
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  2. The emminent Constitutional amemdments should include this ambigous part of the Constitution re the Presidential Term of Office and Partial Proportional Representation; State/Provincial Assemblies; Cabinet Outside Parliament, et cetera.

    Zambia begs to be a federal state!

    Maano
    January 12, 2017 at 1:25 pm
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  3. There is no doubt that this debate of President Lungu’s eligibility to contest the elections in 2021 is premature and really not of priority in the wider scheme of things. However, one might question – could it be deliberate that this debate has been started so early? What can we make of President Lungu’s haste in advising those against him to go to the ConCourt?

    I have said before that in high profile political cases, the Judiciary tends to be so intimidated that they may just rule that Lungu is eligible to stand. I think it’s quite possible that President Lungu raised that matter (challenge in ConCourt) to bait the opposition into actually taking the challenge to court this early knowing full well that he might have already secured a ruling in his favour.

    I wouldn’t trust the Zambian judiciary with such a case; it’s actually sad that finality rests with the ConCourt. It’s too high pressure for our judges. I also feel that for them to rule against Lungu this early in his term when he will have an entire 4 years to ‘met out retribution’ is highly unlikely.

    I think it would be better for this matter to go before the ConCourt in the year 2021. The judges will more likely give an objective ruling knowing that if they rule against Lungu, it will be a checkmate and he will have no time to met out revenge. If they do not rule at all as they do at times, and Mr Lungu does not stand, that in itself will have shown the public their position on the matter.

    My two cents

    Advance 1
    January 12, 2017 at 1:31 pm
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