It is almost becoming generally accepted that Attorney General Musa Mwenye was right to advise Cabinet to allow Vice President Dr. Guy Scott to take over power from Defence and Justice Minister Edger Lungu, who was Acting President (or discharging the functions of the Office of the President) at the time President Michael Chilufya Sata died. However, in the interest of Constitutionalism and posterity, we wish put it on record that we do not agree with the Attorney General’s interpretation of the Constitution. Before we go any further, let it be very clear that we are not motivated by any personal, racial or other issues. We respect Dr. Guy Scott and we think he can do well to lead this Country in the interim. However, we want the law to be followed. It is not what is convenient to us or anyone that should be used as the criteria to misinterpret the Constitution, especially on an issue of the Presidency. For the sake of this article we will use the term “Acting” to mean “discharging the functions of an office on behalf of the substantive or legitimate office bearer”. We will also restrict ourselves to the appointment and revocation of a person to discharge the functions of the President, and not the qualifications to hold that office. When can someone Act as President? There are three (3) possible scenarios where a person can Act as President, which are: When the President is out of the Country; When the President is incapable of performing his duties due to illness or mental infirmity; When the President is dead (which renders the office of the President vacant and elections follow within 90 days). These are outlined under Article 38 and 39 of the Constitution Who has power to appoint an acting President? The common scenario of when someone Acts as President is when the incumbent President is out of the Country, or he is ill. It is clear here that the President appoints someone to Act as President for the time he is out of the Country. Ordinarily, the first consideration should be the Vice President, unless he is absent or incapable of performing the functions of the President. This is provided for in the Constitution in Article 39 (1) as quoted below: 39(1) “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.” Another scenario is when the President is incapable of appointing another person to Act, either because he is too ill or has a mental problem. In this case, the Vice President should automatically Act as President. However, if the Vice President is absent, or ill, or incapable of Acting, another person can be chosen by Cabinet. This is provided for in Article 39(2) of the Constitution, as quoted below: 39(2) “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: Provided that any person performing the functions of the office of President under this clause shall not dissolve the National Assembly nor, except on the advice of the Cabinet, revoke any appointment made by the President. “ The third situation is similar to the former, except here, the President is dead and there is no possibility of him coming back, therefore, a Vacancy is created in the office of the President. Death usually comes unexpectedly, so there is no chance for the President to appoint another person, according to the conditions and process described in article 39(1), (note that it says in writing) In this case, Article 38(2) automatically kicks in. It says: (2) “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 the 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”. Note that this paragraph begins with, “Whenever the office of the President becomes vacant”, meaning, at any point that the office becomes vacant due to death or resignation. But what is important is for us to apply our minds to what the crafters of the Constitution had in mind when drafting this provision, it is common sense that death comes in suddenly, so the President cannot have time to appoint a person. Therefore automatically Article 38(2) is implied. Who can revoke the powers of the Acting President? Again, here, we would like to look at each scenario extrapolated above. In the first scenario, where the President appoints someone for a period of time in his absence, or when he is ill, it is clear such a person will hand over power to the President. Article 39(1)”…..Vice-President or such other person may discharge those functions until his authority is revoked by the President”. Note that this article does not specify whether it has to be the appointing President or another President, however, such a person MUST be a President. In the second scenario, where the President did not appoint a person to act, the law is very clear, in Article 39(3) as quoted below, as to what should happen: 3) 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. Essentially, this article is also saying that, the powers of an acting President can only be revoked by an elected President and not any other person, even in the case where the President is not the one that appointed the Acting President. There is nowhere in the Constitution where a person can hand over power to anyone else, apart from the President. Does Article 39 cover a Vacancy in the Office of the President? Article 39(3) says: “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”. Note that this article considers the possibility of a new President, other than the one who left office and appointed someone else to act due to illness or metal infirmity. But how can a new President come in, if there is no vacancy and an election? Article 38(1) gives guidance: 38(1) “If the office of the President becomes vacant by reason of his death or resignation or by reason of his ceasing to hold office by virtue of Article 36, 37 or 88, an election to the office of the President shall be held in accordance with Article 34 within ninety days from the date of the office becoming vacant.” It can, therefore, be concluded that Article 39(3) considers vacancy, which can occur due to various reasons including death. And if that happens, the Constitution says the person acting should hold on to power until the new President takes office. This article reconciles the augment of handing over power to a President in Article 39(1), which says that the powers of acting can only be revoked by a President, because if for any reason the appointing President does not come back (or die), you would go for elections. What is our present scenario? The current situation started unfolding on 20th October 2014, with President Michael Chilufya Sata going abroad for medical attention and he applied Article 39(2) by appointing Justice and Defence Minister Edger Lungu to act as President. Reflection: Guy Scott is the Vice President, the principle assistant of the President, who was supposed to be considered first by Sata, but he picked Edger Lungu instead. Was Guy Scott absent? No! Was he ill? Not to our knowledge. Was the Vice President incapable of discharging Presidential duties? Judging by the repeated action of Sata not to appoint him as Acting President ever, this could be possible. On 28th October 2014, President Sata died at King Edward VII Hospital in Beaumont, Central London. This meant that Edger Lungu had no President to revoke his appointment as provided for by the law in article ….. As earlier stated, an acting President’s powers can only be revoked by a President. Since President Sata relinquished the Presidency through death, a vacancy was created in the office of the President and Lungu had no option, but to wait until after a New President had taken office. Reflection: Is Dr. Guy Scott a President for him to revoke the Acting President’s powers? Where is it written in the Constitution that Cabinet can revoke the powers of the Acting President and choose another one to act? How did this shift of power happen in cabinet? Which members of cabinet were present in the meeting? Was Edger Lungu threatened to hand over power? What should we make of Edger Lungu’s subsequent remarks to the media that he would have held on to power, but for the sake of peace and stability he gave it up? Could the Attorney General be Compromised? The Attorney General misrepresented himself by saying that there is no provision for an Acting President to continue acting after the demise of the substantive President. He quoted Article 38(2) of the Constitution, when the correct provision is Article 39. To back his wrong interpretation of the Constitution, the Attorney General cited a “precedence” which was never there. He said when President Levy Mwanawasa, left the country for an AU summit in Egypy in 2008, he left Defence Minister George Mpombo to act as President instead of Rupiah Banda. The Attorney General is quoted as saying: “The nation will recall that when the late President Levy Patrick Mwanawasa, SC died, Hon. George Mpombo was acting president. After the death of President Mwanawasa, President Rupiah Banda, who was then vice-president, had to assume office in accordance with Article 38 (2), despite Hon Mpombo having been Acting President at the time of the death of the president.” However, this example is false as can be proved by an excerpt from the Parliamentary debate of Thursday, 16th June, 2011 which is available on the Parliament website (parliament.gov.zm/index.php?option=com_content&task=view&id=1468&Itemid=86). The story was also reported by Lusaka Times (lusakatimes/2011/06/17/mwanawasa-delegated-mpombo-state/). Justice Minister George Kunda told Parliament that George Mpombo never acted as President at the time of the death of President Mwanawasa. Conclusion We are of a strong view that the Constitution was misinterpreted by the Attorney General and he mislead cabinet. Our present scenario is different from context of Article 38(2), in the sense that, the President died after he had already given power to someone to act. The article that applies in the current scenario is Article 39, which starts with a President appointing someone to act 39(2), then the President dies and this requires the Acting President to continue until a new President is elected. This is according to Article 39(3), which says 39(3) “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.” The Constitution does not allow the Acting President to hand over power to a Vice President, so Edgar Lungu should not have done what he did. He acted irresponsibly, if he was not threatened. Reflection: Sata did not leave us as orphans. He gave us a caretaker President until we choose our New President. And this caretaker is most certainly not Dr. Guy Scott. The big question is who has given us Dr. Guy Scott as a caretaker? Are we living in the Cartel era?
Posted on: Mon, 03 Nov 2014 09:25:46 +0000