Press Statement on the Acting Presidency and the Forthcoming Presidential By-Election

On the Acting Presidency

The Law Association of Zambia (LAZ) issued a Press Statement on this subject on 29th October 2014, in which we stated that the Vice-President assumed the functions of the Office of the President by operation of the law, pursuant to Article 38 of the Constitution. We note that this issue is now the subject of Court proceedings before the High Court of Zambia. LAZ hereby advises the general public that we are contemplating joining the legal proceedings on this issue as amicus curiae (friend of the Court).

On the Qualifications for Presidential Candidates

The Law Association of Zambia has received several queries from the press and the general public on the issue of the qualification for a candidate to stand for the Office of Republican President. Article 34 of the Constitution provides that a presidential candidate must have the following qualifications:

  1. be a Zambian citizen,
  2. have parents who are Zambian by birth or descent,
  3. have attained the age of thirty-five years,
  4. be a member of or be sponsored by a political party,
  5. be qualified to be elected as a member of the National Assembly; and
  6. have been domiciled in Zambia for at least twenty years.

Some controversy has arisen as to whether persons whose parents were born before Zambia gained independence could be considered to be Zambian. The Supreme Court of Zambia has given guidance on this issue in the 1996 case of Akashambatwa Mbikusita Lewanika and Others v Fredrick Jacob Titus Chiluba in which the Petitioners challenged the eligibility of former President Fredrick Chiluba on the claim that his father was not Zambian and that therefore he did not qualify to stand for the Office of President of the Republic of Zambia as provided in Article 34 of the Constitution. In that case the Supreme Court ruled that under Section 3 the 1964 [Independence] Constitution the following automatically qualified to become  Zambian citizens at Independence:

  1. Every person born in the Protectorate of Northern Rhodesia and who was a British Protected Person
  2. Every person who was born outside of the former Protectorate of Northern Rhodesia who was a British Protected person as at 23rd October 1964 and whose father became or would have become a Zambian citizen had they had not died before Independence  Day 1964.

The Supreme Court further guided there was a further class of people who did not automatically become Zambians on Independence Day 1964 but who were eligible to become Zambian citizens only upon application or registration:

  1. Any person who on 23rd October 1964 was a citizen of the United Kingdom and Colonies who became a British citizen by virtue of having been naturalized and registered in the former Protectorate of Northern Rhodesia under the British Nationality Act of 1948 could register to become a Zambian citizen.
  2. Any woman who –

i) was married to a man who after 23rd October 1964 become a Zambian citizen

ii) was married to a man who become entitled to be registered as a citizen of Zambia but who was divorced  or widowed before her husband could exercise her right to be registered. Was entitled to apply to be registered as a Zambian citizen.

On what constituted Zambian parents by birth or descent at the time of independence on 24th October 1964, the Supreme Court ruled that as Zambian citizenship or nationality only commenced on 24th October 1964. The Court ”the constitutional provision regarding parents or anyone born prior to independence who are or were Zambian by birth or descent can meaningfully only be construed as a reference to those who [automatically] became Zambians on 24th October 1964” or who would automatically have become Zambians had they not died before independence day 1964. Therefore, from the foregoing interpretation of the law by the Supreme Court, our considered view is that only persons whose parents automatically qualified to be Zambian citizens at the time of independence in 1964 are qualified to stand as candidates to the office of President. However, the pronouncement by the Supreme Court is of general application…whether a presidential candidate’s parents qualified to be Zambian citizens at Independence Day 1964 has to be assessed on a case-by-case basis according to the facts and evidence as to where the presidential candidate’s parents actually came from which may ultimately, in the case of a dispute, have to be determined by a court of law. We are hopeful that the Returning Officer in this regard will be able to accept nominations from persons who meet the criteria as by the law provided.

On the Demand for a People -Driven Constitution

The Law Association of Zambia joins the calls by civil society and other stakeholders for the candidates of the 2015 presidential by-election to make the need for the enactment of a people-driven on election issue.

Our experiences as a Nation, following the demise of President Michael Chilufya Sata is merely one example of the need for reform of the current constitution and how the needs and aspirations of the Zambian people could be better met.

Not only is LAZ calling for the enactment of a new people-driven constitution but specifically one enacted through a legally protected process that will ultimately lead to the adoption of the new constitution through a referendum and enactment by the National Assembly without revision before the 2016 general elections.

On Peace and Security in the Nation Up To the Presidential By-Election.

The Law Association of Zambia calls on all Zambians to remain calm during the upcoming presidential by-election. The Association further urges political parties to maintain discipline within their ranks to ensure a peaceful by-election.

The process of selecting presidential candidates by political parties should be done in an orderly and peaceful manner. Political parties are private clubs whose rules and procedures are best handled by members themselves.

However, it is the expectation of LAZ that this process will be smooth and orderly and will not spill over to adversely effect the lives of the Zambian people. LAZ also calls upon the law enforcement agencies to maintain law and order in the country without fear or favour and without regard to social or political affiliation of persons that will be found to have breached the law.

LAZ wishes those that shall participate in the upcoming election Gods guidance. May God bless our beloved Nation.

I thank you.

K M G Chisanga

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