By NDUBI MVULA –
THE general elections are now scheduled constitutionally by date, making it the first time for Zambians to have this very important event enshrined in the Republican Constitution.
Previously, the date remained the preserve of the incumbent Republican President who had the prerogative of announcing as and when he felt that his political party was ready to be challenged.
However, the assenting to the Amended Constitution by President Edgar Lungu on January 5, 2016 has relaxed such restrictions and privileges such that the general public now is made aware of not only their franchise but when they are supposed to exercise it.
Also of great importance and cardinal consideration in the Amended Constitution of 2016 is the continued upholding of the clause that restricts elective candidates from being re-appointed to elective positions during the life of the National Assembly.
However, Clause 55 of the current Amended Constitution under sub-title, Losing Candidate Not Eligible for Certain Appointment stipulates thus; “A candidate who loses an election as a President, Vice-president, Member of Parliament or Councillor is not eligible during the term of that National Assembly or Council for appointment
However, an electoral expert MacDonald Chipenzi says the return of clause 55 is appropriate though it was there in the previous Constitution but feels that its provisions will not be abused.
Mr Chipenzi who is former  Foundation for Democratic Process (FODEP) executive director, says the clause is not new as it existed in the 1991 Constitution but was amended in 1996 but that it raised serious issues when late president Levy Mwanawasa appointed Nevers Mumba as vice-president after he lost presidential elections.
He said the action contravened the constitutional provisions thereby attracting confusion in Parliament but that Dr Mwanawasa managed to handle the situation legally.
“There was a lot of confusion in Parliament and outside but Dr Mwanawasa played around it with some legal jargons. When a person loses an election it means people don’t want such a person. So bringing such people back is like imposing a rejected person on the electorate, which is not good,” he says.
Mr Chipenzi says the law is very clear as it only covers positions that are elective but was quick to point out that anyone who loses an election, if their services are needed, they can be appointed to non-elective positions such as in diplomatic service or civil service.
“The barring of re-appointing losing candidates to elective positions is good because it brings back sanity to the electoral system as well as the system of governance because it creates a sense of normalcy,” he says.
Mr Chipenzi says the beauty of the Article 55 in the Amended Constitution is that there are no more Deputy Ministers adding that the situation now narrows the eligibility and space for losing candidates.
“Now we will only have Cabinet Ministers who will be assisted by Permanent Secretaries and Directors in various ministries. We hope that the civil service will not suffer the aspect of being bloated with losing candidates who may find their way into the sector since there is no constitutional restriction,” he observes.
Mr Chipenzi’s views and observation links to an incident that almost led to Parliament citing Dr Mwanawasa for possible impeachment.
It was in May 2003,  when President Mwanawasa did what many a think tank felt bordered on an infringement of the Republican Constitution when he appointed a losing opposition leader into his government.
Prominent among the leaders that expressed concern was veteran politician Vernon Mwaanga who observed then that the move threatened the strength of the former ruling political party the MMD.
“The appointment of Reverend Nevers Mumba has definitely weakened the MMD further, and the repercussions could be too much for Mr Mwanwawasa to face. This is because mainstream MMD members who have been in the party since inception, I believe will not sit by and watch their party taken over by members of the opposition at such a high level,” Dr Mwaanga said.
And Former Legal Affairs Minister Rodger Chongwe did express his concerns and observed that Dr Mwanawasa’s decision to appoint Dr Mumba was unconstitutional.
“Article 68.3 of the Zambian Constitution makes it illegal for a person who stood in a general election and lost to take up a cabinet or vice-president position. Reverend Mumba is one such person, so he does not qualify under the law,” Dr Chongwe then said.
However, during the swearing-in ceremony of Dr Mumba as vice-president, Dr Mwanawasa stated that he had consulted widely on his decision.
“I consider constitutional issues seriously because I consulted the Solicitor-General and Attorney General, as well as the Legal Affairs Minister George Kunda for Mumba’s picking.  Those who feel uncomfortable with his appointment can commence legal proceedings against me or the State,” said President Mwanawasa.
And that is how Dr Mumba survived the constitutional wrangle as the wrath of those in Parliament and some non-governmental organisations could not hold water.
However, Kebby Musokotwane feels that the idea should be that if people reject a candidate it should stand as such and not brought behind the back door because the people’s wish need to be respected as enshrined in the constitution.
“Whoever they are that have been rejected by the people, that’s where it ends,” he says.
Last year, President of the United States of America shared his constitutional understanding that no one person is above the law and not even the President, adding that when a leader tries to change the rules in the middle of his reign it brings about instability in a nation.
He shared his views during the recent African Union in Addis Ababa, Ethiopia when he addressed the Heads of State.
“Under our constitution I cannot run again, I actually think I am a pretty good president and if I ran I can win but I can’t. The law is the law. No one person is above the law, not even the President. I don’t understand why people want to stay so long especially when they have got a lot of money,” President Obama said.
President Obama’s views may seem to be targeting some Presidents who have the habit of wanting to prolong their stay in power but to a large extent it touches on an elective position where even those that lose an election should not insist on being considered as the best since the people would have decided otherwise.
A Lusaka resident Owen Mayapi feels President Obama’s address somewhat sums up what is contained in Clause 55 saying no one man has the wisdom and character beyond the liking of the people.
And Given Mwaanga says  Clause 55 is very good, adding that people can still contribute to the development of Zambia not only through political position or appointment but in other sectors.
“Once a person is rejected in an election, one can still contribute in a professional way. The only problem we have is that people want to seek  power either for personal gain or to settle scores.
There are few who go for genuine contributions to develop the country,” he observes.