THE CONDUCT OF THE CABINET TO APPOINT DR GUY SCOT TO ACT AS PRESIDENT WAS UNCONSTITUTIONAL AND THEREFORE A NULLITY By Stephen Mumbi In order to settle the matter whether or not Dr. Guy Scott qualified to act as President of the Republic of Zambia, and whether Cabinet was in order to revoke the appointment of Hon Edger Lungu as Acting President and whether or not the Attorney General rendered proper legal advice on this mater, the following must be established: (i) Whether His Excellency the Late President Mr. Michael Sata was in order to appoint Dr. Guy Scott Vice President when Dr. Scott was disqualified by article 34(4) from holding and or from performing the functions of President (ii) Whether the constitution allows a President to appoint any other person to act as president apart from the Vice President; (iii) Reasons of appointing any other person other than the Vice President to act as President; (iv) Procedure within the constitution for appointing an Acting President and (v) conversely procedure for the revocation of such an appointment in terms of time and authority ; (vi) Whether or not the Late President, His Excellence Mr. Michael Sata was on firm ground when he never at any one give time appointed Dr Scot to act as Republican President and; (vii) Whether the Honourable Attorney General rendered proper advice to Cabinet to the extent that Cabinet believed that they had the power to revoke the appointment of Hon Lungu in favour of Dr Scot to act as President for the 90 days transitional period. Article 45 of the Republican Constitution provides for the appointment of the Vice President by the President. The only qualification for a person to be appointed Vice President under this article is that, the person so appointed should be a member of the National Assembly The Vice-President shall be appointed by the President from amongst the members of the National Assembly It is therefore settled matter that the President can appoint any one as Vice President as long as they are a member of the National Assembly’ What should be determined then is whether everyone appointed as Vice President can automatically assume and perform the functions of President in the absence, including the passing of a sitting President. Article 34(3) sets out the qualifications for a person to hold office and to perform the functions President in Zambia thus; (3) A person shall be qualified to be a candidate for election as President if- (a) he is a Zambian citizen; (b) both his parents are Zambians by birth or descent; (c) he has attained the age of thirty-five years; Care should be taken not to limit interpretation of the phrase “qualified to be a candidate for election as President” to define a candidate only for purposes of determinig whether or not candidate should participate in an election as an activity by which a person (candidate) is put into the office President, but the phrase “qualified to be a candidate for election as President” should also be understood in the context of eligibility to hold office of President and to perform the functions of office of the President at any one given time. This is best understood through article 39(1) Article 39(1) defines the other process by which a person (candidate) can be put into office of President and perform functions of the President. This is through Presidential appointment but equally without neglecting the issue of eligibility as set out under article 34. Whenever the President is absent from Zambia or considers it desirable so to do by reason of illness or for any other cause, he may by direction in writing, authorise the Vice-President, or where the Vice-President is absent from Zambia or is incapable of discharging the functions of the office of President, any other person, to discharge such functions of the office of President as he may specify, and the Vice-President or such other person may discharge those functions until his authority is revoked by the President. This article gives reasons for the President not to appoint a person as Acting President, notwithstanding that such a person holds the position of Vice President. The Vice President may not be appointed Acting President. (a) When the Vice President is abroad and (b) When he has no capacity to perform functions of the President. Whereas the first reason is self explanatory, the second reason must be given meaning in terms of what is meant by the phrase “incapable of running the functions of the President” A person is believed to be incapable of doing something if that person is either unable, powerless, incompetent, inept, does not possess the sufficient expertise and or when that person is unqualified. It is common cause, that at any given time, according to the Zambian Constitution, a person qualified (capable) to hold office and perform the functions of President in Zambia should be a Zambian citizen, borne of both parents who are Zambians by birth or descent and should have had attained the age of thirty-five years at the time of such election as provided for under article 34(3) From the foregoing, it is established that where the Vice President does not meet the conditions set out in article 34(3) he is not capable of discharging the functions of the President and that the President is mandated to evoke the option under article 39(1) to appoint any other person. Where the President opts to appoint any other person Acting President because the Vice President is incapable of holding office and discharging the functions of President, The same article 39(1) sets out the procedure for appointing and revoking the appointment of an Acting President. According to the article, the appointment of an Acting President is in writing and meant for a specific period of time. It further provides that it is only the President that revokes the authority of the Acting President. However, in the event of death, as the case is now, article 39(3) only mandates the Speaker to revoke the authority of the Acting President. Any person performing the functions of the office of President by virtue of clause (2) shall cease to perform those functions if he is notified by the Speaker that the President is about to resume those functions or if another person is elected as, and assumes the office of, President. Clause (2) states If the President is incapable by reason of physical or mental infirmity of discharging the functions of his office and the infirmity is of such a nature that the President is unable to authorise another person under this Article to perform those functions- (a) the Vice-President; or (b) during any period when the Vice-President is absent from Zambia or is himself, by reason of physical or mental infirmity, unable to perform the functions of his office, such member of the Cabinet as the Cabinet shall elect; shall perform the functions of the office of the President What is interesting in this article is that even where the Vice President qualified to hold office and perform functions of the President but by some reason set out under 39(1), the President appointed another Acting President, the Vice President would not take over and Act as President if the President died without revoking authority from the other appointed person. This therefore means that an Acting President continues to hold office until a new President is elected if his appointment was not revoked by the President who appointed him. It is established here then that authority to revoke the appointment of an Acting President after expiry of the appointed time lie with the President and in the event of death of the President, as the case is now lie with the Speaker through a notice to the Acting President after a new President has been elected From what has been established above: 1. The Late President His Excellence Mr. Michael Sata did not breach any provisions of the Constitution for appointing Dr. Guy Scott Vice President of the Republic of Zambia and the President was on firm ground when he did not appoint Dr. Guy Scott to act as President because Dr. Scott did not and does not possess the requisite competence to discharge the functions of the President. Article 34(4) of the Constitution disqualifies him to be elected both by ballot and appointment to hold the office and to perform the functions of the President 2. The advice rendered by the Attorney to Cabinet over this matter was incorrect and a therefore a nullity. Cabinet does not possess the requisite authority to revoke the appointment of an Acting President made by the President. The Constitution under article 39(2), only mandates the President and the Speaker to revoke the appointment of an Acting President. Cabinet was therefore misguided and rode on a fallacy to the extent that it erroneously revoked the appointment of Hon Lungu as Acting President and appointed Dr Scott. 3. On the contrary, the Minister of Defense and Justice and Secretary General of the Patriotic Front(PF) Hon. Edger Lungu, in accordance with the said article [ 39(2)] was and is still the rightful person to hold and perform functions of the President until a new President is elected. The Late President authorized Hon Lungu to act as President and only he (the late President), according to the article could have had revoked this authority had he returned home. Under the current circumstance, however, because the President died without revoking Hon Lungu’s appointment, the only other competent office to revoke Hon Lungu’s Acting appointment is the office of the Honourable Speaker, through a notification after a new President is elected. 4. The act of Cabinet is still a serious breach of the constitution and therefore a nullity at law. It is therefore only prudent that, for purposes of upholding the Constitution, the erroneous decision by Cabinet that revoked Hon Lungu’s appointment as Acting President be rescinded forthwith and the appointment of Dr Guy Scott Acting President of the Republic of Zambia be revoked. STEPHEN CHISHIMBA MUMBI mumbisc@gmail
Posted on: Sat, 08 Nov 2014 16:53:26 +0000
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