EVERYTHING HAS A TIME (EDITIORIAL COMMENT FOR SATURDAY 1ST NOVEMBER 2014) Patriotic Front cadres, led by Lusaka district chairman Yelisa Khondowe, on Thursday protested around the city’s central business district over Dr Guy Scott becoming the acting President of the Republic of Zambia. “As youths in Lusaka, we urge Cabinet to inform the nation on the status of the matter, otherwise Zambians should consider what has happened as a coup d’état, which should force the Attorney General to step down and Guy Scott should surrender the instruments of power to the rightful holder honourable Edgar Lungu until the substantive president is appointed,” said Khondowe. These Patriotic Front cadres can be excused for their ignorance of the law even if it is said that ignorance of the law is no defence. Sometimes justice has to take the route of compassion. Truly, if there was a provision in the Constitution dictating that Edgar should be the acting President, it would be treason for anyone to stop him from doing so. As the Attorney General has correctly explained in a statement released to the public yesterday, the transfer of power to Dr Scott to act as President is in accordance with the provisions of the Constitution. Article 38(2) states clearly that “whenever the Office of the President becomes vacant, the Vice-President or in the absence of the Vice-President or if the Vice-President is unable, by reason of physical or mental infirmity, to discharge the functions of his office, a member of Cabinet elected by the Cabinet, shall perform the functions of the office of President until a person elected as President in accordance with article 34 assumes office.” This country had only one Vice-President at the time of president Michael Sata’s death. Edgar was not occupying the office of Vice-President at the time of the president’s death. The person who was occupying that office is Dr Scott. And so, Dr Scott, according to the provisions of the Constitution, becomes our acting President. And this is not a matter that can be resolved on the street by cadre protests. It is not even a matter that can be decided on the basis of numbers in Cabinet, the central committee of the Patriotic Front or by other supporters. It is not a matter for mass mobilisation. If anyone has any doubt about the interpretation of the Constitution on this matter, the best they can do is not to go on the street and mobilise youths of low literacy to start making wild statements about matters they do not understand, but to turn to the courts for interpretation. Those youths of low literacy they are mobilising have no capacity to interpret constitutional provisions pertaining to this matter. We know they and their masters, those who have sent them to go on the streets, are for one reason or another not happy about Dr Scott acting as President. They are entitled to that. But what they are not entitled to is to create anarchy over that. Constitutional provisions are not changed or interpreted to suit our interests when times or things change. Moreover, this is not the first time such a thing is happening in this country. As the Attorney General has correctly reminded us, when Levy Mwanawasa died, George Mpombo, who was his defence minister, was the then acting president. But Rupiah Banda, who was the vice-president of the Republic, had to act as president in accordance with the Constitution. Mpombo did not resist handing over power to Rupiah even if they were not in good terms or he detested him. It was simply a question of the Constitution being respected. What is disheartening is that Edgar knows the correct position of the law and how power should flow, but he is doing nothing to stop those cadres, those supporters of his from making demands for him to act as President in violation of the Constitution. Edgar, as secretary general of the Patriotic Front, seems to be condoning or abetting such irresponsible behaviour and unlawful demands. Why? Equally, the constitution of the Patriotic Front is very clear on the issue of succession. Article 53 of the Patriotic Front constitution states: “(1) In the event of the President of the Party resigning, or being removed from Office of The President of the Party, he shall cease to be President of the Party and the Secretary General shall act as President of the Party until the new President is elected in accordance with provisions of Article 48 of this Constitution. (2) In case of absence of both the President and the Secretary-General of the Party, the President of the Party shall choose one from amongst the members of the Central Committee to perform the functions of the President of the Party until such a time as the President or Secretary General of the Party shall resume his duties.” And this has to be read with article 54(1), which states: “(1) The Vice President shall have the following powers, duties and functions: a) to be the principal assistant to the President of the Party; b) to exercise all such functions as may be delegated to him by the President; c) to act for the President in his absence; d) to exercise the functions of President in case of death or removal from office in terms of Article 53.” Here again, it is the vice-president of the Patriotic Front who exercises the functions of the president in case of death and not the party secretary general. And unlike under the Republican Constitution where the exercise of power by the acting President is limited in so many ways, under the Patriotic Front constitution, the exercise of such functions by the vice-president of the party is not limited. This means that whatever the deceased president could do or undo, the vice-president, who has now taken over, can also do or undo. This means that all the powers that president Sata had as party president can now be fully exercised by Dr Scott in a similar way. Again, this may not please others in the party. But that’s what the constitution of the Patriotic Front states. And the rule of law requires the respect of these provisions of the constitutions of the party and of the Republic. Any departure from that is playing into the hands of anarchy. We can only urge tolerance, patience and respect. Everything has got a time. There is no need to force matters to be what they are not.
Posted on: Sat, 01 Nov 2014 12:00:01 +0000
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