Attorney-General defends Constitutional court ruling declaring Lungu ineligible for future elections

Attorney General, Mulilo Kabesha, has defended the Constitutional Court’s decision that declared former President Edgar Lungu ineligible to contest future elections, arguing that the ruling did not violate the Constitution.

In a response filed before the Constitutional Court, the State insisted that the December 10, 2024, ruling was in line with constitutional provisions and could not be invalidated by past precedents cited by petitioners.

The petition challenging the ruling was filed by Patriots for Economic Progress (PEP) president Sean Tembo, who is acting as spokesperson for the Tonse Alliance.

The Alliance contended that the court erred by declaring Lungu ineligible before he had filed his nomination papers, allegedly breaching Article 52(4) of the Constitution.

However, the Attorney General, through the AG’s Chambers, countered that Article 52(4) was not applicable in the case of Michelo Chizombe v Edgar Lungu and Others.

Instead, the court relied on Articles 128(1) and (3), which grant it original and final jurisdiction over constitutional interpretation matters.

An affidavit sworn by Acting Chief State Advocate Comfort Mulenga argued that the Constitutional Court acted within its powers and based its ruling on a sound reading of the law.

Mulenga dismissed Tembo’s claims that the judgment was made per incuriam (without due regard for the law), and stated that the petitioners had not demonstrated any constitutional breach.

The AG’s office further argued that previous rulings in Christopher Shakafuswa & Isaac Mwanza v AG & ECZ and Legal Resources Foundation v ECL & AG were not binding, as they did not interpret Sections 2 and 7 of the Constitution Amendment Act No. 2 of 2016 regarding presidential eligibility.

The State also disputed Tembo’s reliance on Article 267(3)(b) and (c), clarifying that these clauses deal with holding office, not eligibility to contest elections. The AG pointed instead to Articles 106(3) and 100 as the relevant provisions.

Tembo’s petition argues that the Constitutional Court’s ruling preempted the nomination process and ignored Article 52(1), which states that eligibility questions should arise only after a nomination has been submitted.

He also cited landmark cases such as Daniel Pule v Attorney General and Sishuwa Sishuwa & Chapter One Foundation v ECZ, which he claims support a broader interpretive approach to presidential tenure.

The petition seeks a reversal of the ruling and clarification on whether the constitutional phrase “a person elected to the office of President” applies to Lungu under Articles 106(1), (3), and (6), when read together with Article 267(3)(b) and (c).

The State has asked the court to dismiss the petition with costs, arguing that the petitioner is not entitled to the reliefs sought.

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