P 221101Z AUG 08
FM AMEMBASSY LUSAKA
TO SECSTATE WASHDC PRIORITY 6169
INFO SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE PRIORITY
AMEMBASSY LONDON PRIORITY 
AMEMBASSY PARIS PRIORITY

UNCLAS LUSAKA 000850 
 
 
DEPT FOR AF/FO, AF/S, AF/PD; LONDON AND PARIS FOR AFRICA 
WATCHERS 
 
E.O. 12958: N/A 
TAGS: PGOV ZA
SUBJECT: GRZ PROVIDES SOME ANSWERS ON LEGAL ASPECTS OF 
UPCOMING PRESIDENTIAL ELECTION; DATE TBD 
 
REF: A. LUSAKA 838 
     ¶B. LUSAKA 827 
     ¶C. LUSAKA 825 
 
 
¶1.  Summary.  The Zambian government (GRZ) will respect the 
constitutionally-mandated 90-day timeline for a presidential 
election and will announce the date of the polls after 
consultations between the Treasury and the Electoral 
Commission of Zambia, Justice Minister George Kunda announced 
on August 21.  Due to a complex web of constitutional 
provisions, voters will choose a president who will de factor 
serve out the remainder of deceased President Mwanawasa's 
term, which was set to expire in 2011.  The Electoral 
Commission of Zambia will be hard pressed to meet the tight 
deadline and may be forced to make some compromises in terms 
of voter rolls and other logistical arrangements.  End 
summary. 
 
¶2.  Justice Minister George Kunda appeared on national 
television on August 21 to announce the GRZ's interpretation 
of the legal structures relating to the upcoming presidential 
elections necessitated by the death of President Mwanawasa. 
Kunda affirmed that the GRZ will strictly adhere to the 
Constitutionally-mandated timeline of elections within 90 
days of the office becoming vacant, and said that the 
government would announce the date of the elections following 
consultation between the Treasury and the Electoral Council 
of Zambia. 
 
¶3.  Kunda directly confronted the issue of whether the winner 
of the upcoming election will serve out the existing term of 
the deceased president, which would mean serving until 2011, 
or if the clock will start again on a full five-year term. 
The Constitution is not clear on this matter, and in last 
night's address Kunda ran through the reasons why the 
upcoming election will only be for a three-year term to 
expire in 2011. 
 
¶4.  According to Article 38 of the Constitution, when the 
office of the President becomes vacant for whatever reason, 
"an election to the office of President shall be 
held...within ninety days from the date of the office 
becoming vacant."  Nowhere does it specify whether the 
election is for a full term or for the remainder of the 
previous incumbent, however.  Mwanawasa was elected to his 
second, and Constitutionally-mandated final, term in 
September 2006, meaning his term was set to expire in 2011. 
 
¶5.  Even without directly addressing the issue of the new 
president's tenure, however, the Constitution does contain a 
series of provisions that, taken together, make a five-year 
term impossible in this case.  Article 88, section 6 of the 
Constitution indicates that the National Assembly can be 
dissolved in three ways: at any time by the President, on 
two-thirds majority resolution of the members, and when its 
five-year term elapses.  Article 88, section 7 goes on to 
explain that whenever the National Assembly is dissolved, 
both parliamentary and presidential elections must occur. 
These provisions ensure that presidential and parliamentary 
terms are concurrent and create a strong disincentive for an 
incoming president to dissolve parliament early. 
 
¶6.  Lest Acting President Rupiah Banda be tempted to dissolve 
the National Assembly now in order to force Parliamentary 
elections this year, Article 38, section 3 bars him from 
doing so.  As a last safeguard, Article 38, section 2 
provides that "a person who has twice been elected as 
President shall not be eligible for re-election to that 
office."  Whoever is elected president next therefore has a 
strong incentive to keep his peace and serve out the 
remainder of Mwanawasa's term, in order to be eligible to run 
for another five-year term in 2011. 
 
¶7.  The Electoral Commission of Zambia has begun to meet with 
the Treasury and with donors to talk about funding for the 
upcoming election, but is unlike to announce an election date 
until after the 21-day mourning period ends on September 8. 
Secretary of the Treasury Chibiliti announced the GRZ sould 
fund the election from the existing 2008 budget by 
sacrificing unspecified discretionary funding.  Initial 
indications are that ECZ intends to use the 2006 voter rolls 
to conduct the election, particularly as the GRZ has failed 
in its legal responsibility to maintain current rolls and it 
would be almost impossible to update the rolls before the 
election.  The 2006 rolls, which contained approximately 3.9 
million voters, were the source of many complaints due to 
high levels of errors.  These rolls will not reflect deaths 
that have taken place since they were closed in September 
2006, and will not include those who have turned 18 since 
that time, or relocated to new voting districts. 
 
¶8.  Comment.  Kunda's intervention was timely and necessary 
to quell debates about the tenure of the incoming president, 
and his assurance that the GRZ will honor the Constitution's 
90-day timeline for an election was reassuring from the point 
of view of good governance.  Questions regarding the election 
are only going to multiply in the coming weeks, however.  The 
GRZ has a grace period until the end of the mourning period 
on September 8, but after that and with only 69 days 
remaining, an election date will need to be announced and 
preparations will have to be made at an un-Zambian breakneck 
speed.  The use of 2006 voter rolls is the first of many 
controversial decisions, and without the firm hand of a 
sitting President, there are possibilities for electoral 
mischief.  End comment. 
 
 
KOPLOVSKY