Seriously Kalaki: Was Kabimba Illegally Appointed? There is a widespread suspicion, and even evidential claims from unnamed sources, that Michael Sata was either semi-conscious or unconscious when he was rushed out of Zambia on the night of 20th June, and therefore that he cannot possibly have signed the letter to hand over power to Kabimba as acting president. According to Article 39(2) of the Constitution, if the president were incapable of signing the letter of authorization, then the only way Kabimba can act as president is to be elected by cabinet. For reasons that we need not go into now, the present cabinet would be extremely unlikely to do so. Now what is Kabimba’s answer to all this? He merely says that the claims that he was not legally appointed are ‘mere speculation’. The Cabinet Secretary Msiska responds to a press query by saying he ‘can neither confirm nor deny’ the existence of Kabimba’s letter of authority. This raises the question, already raised by Mike Mulongoti, of why he should not confirm the existence of the letter since he is required to have a copy of it. Furthermore, this request to see the letter is made in a situation where there is legitimate concern about the circumstances and legitimacy of an appointment that is of the utmost constitutional importance. If the accusation of illegal appointment is ‘mere speculation’, why is it that such speculation is so widely considered credible? There are several reasons. Firstly, Sata was rushed out of Zambia at night, strongly suggestive – despite government claims to the contrary – of a medical crisis in the form of a physical collapse. In such circumstances it would seem to be very unlikely that the president would be mentally capable of considering questions of handover or suitability of choice, or physically capable of signing the letter authorizing it. Secondly, many people are now very skeptical about any government information concerning the president’s health. The public has been consistently told by Scott that the president is fit and healthy, notwithstanding that the general public has been able to watch, over the past months, the president becoming more thin and shrunken, his behaviour more bizarre and his speech more incoherent. In addition, government explanations of why the president flew to Israel have been inconsistent, with different ministers variously explaining that he was taking a complete rest, or that he was on a working holiday, and even that he was on an official state visit for bilateral talks with the president of Israel. Since at least two of these explanations must be untrue, why not all three? There is also skepticism about government information on the president’s health because of the wider pattern of misinformation given to the public on such topics as the invisible draft constitution, the invisible job creation and the invisible Access to Information Bill. The government’s general pattern of either suppressing information or issuing misinformation has led to much public questioning about ‘what is really going on?’ Whereas Scott may complain about rumor and speculation on the Watchdog, people are left with nothing but rumor mongering and speculation when they can’t get the truth from Scott or other government officials. Moreover, information leaked to the Watchdog from unnamed sources within government often proves more accurate, in the fullness of time, than anything coming out of the mouth of Scott. And there are far more serious reasons for suspecting the legality of Kabimba’s appointment. Here suspicion arises from the influence of the so-called ‘cartel’ – M’membe, Nchito, Kabimba and Scott – over the president. This cartel, acting as Sata’s kitchen cabinet, is widely believed to have influenced the president to pursue policies and make appointments that further the cartel’s political and business ambitions. The cartel is also known to be backing Kabimba as the successor to Sata. These considerations lead to the following question: when the opportunity arose in the middle of the night, did the cartel seize the opportunity to have Kabimba installed as acting president? But if they did it without the president’s signed authorization, this would have been – as Mulongoti correctly observes – unconstitutional and treasonable. It can only be interpreted as the the first stage in coup by palace insiders. If this is the scenario, then perhaps the cartel foresees itself in charge of the next stage of transition in the form of a fairly long acting presidency, enabling Kabimba to consolidate his hold on power in the party and government, to campaign for his party to elect him as the next presidential candidate, and also to (illegally) begin his campaign in an expected presidential by-election. In this scenario, we would be facing a creeping palace coup culminating in the installation of Kabimba as president. But if this is the plan, then there are serious grounds to suppose that the cartel might have seriously miscalculated. The first and most likely development would be that the opposition would seek a determination in parliament or in court requiring Kabimba to show his letter of authority from the president. However, with the unconstitutional erosion of the independence of the judiciary and of parliament during the period of PF government, such an attempt at determining the matter might be interminably delayed or otherwise aborted. Alternatively, the cabinet could invoke Article 36 and ask the Chief Justice to appoint a medical board to assess the capability of the substantive president to discharge his functions as president. Upon the appointment of such a board it is mandatory that the vice-president becomes acting president, or if he is incapable, then the cabinet would have to elect an acting president from amongst their number. Either way, Kabimba would have to step down. However, if Sata were to die during the period of Kabimba’s period of acting, then Article 38 of the constitution requires that Kabimba’s acting appointment must be revoked, and instead either the vice-president has to act, or in the event of his incapacity, the cabinet is required to appoint an acting president. (See also my previous article on ‘Sata’s Successor’). To abrogate the requirement or Articles 36 and 38 would require further serious constitutional breaches of due process in the transfer of presidential power. But can Kabimba, as acting president, pre-empt cabinet action against him by replacing his opponents in the cabinet with his allies and thereby achieve a majority to support him? The answer is no. According to Article 39 of the constitution, an acting president cannot revoke any appointment made by the president without cabinet approval. Neither can he precipitate a general election by dissolving the National Assembly. And there might be worse dangers facing an illegally appointed acting president. There is also the danger that the army would not stand idly by and watch the usurping of presidential power. If the present situation is the beginning of a creeping coup, the army might take the view that the country would be better off with an army coup rather than an internal palace coup. We have seen, in many other countries, examples of the army taking over ‘to restore constitutional rule’. What usually happens subsequently, of course, is something very different. So if the cartel has engineered the illegal appointment of an acting president, they have stepped entirely outside anything they have attempted so far, and they have stepped into extremely dangerous uncharted waters where they are very unlikely to further their ambitions, but instead very likely to end their ambitions forever. Therefore if Mr Kabimba is in possession of a letter of authorization signed by the president, the best thing he can do is to immediately show this letter to the good people of Zambia in order to end doubt about the legality of his appointment. And if he is not in possession of such a letter, the best thing he can do is to stand down before worse befalls him. Source: Seriously Kalaki zambiareports/2014/07/03/seriously-kalaki-kabimba-illegally-appointed/
Posted on: Thu, 03 Jul 2014 18:47:11 +0000
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