Article 36; Removal of President on Grounds of Incapacity

By Alfred A. K. Ndhlovu

Since June 20, 2014, there has been wild speculation and rumours about the whereabouts of President Michael C Sata. Many people do not know what has happened to him. He appears to be in seclusion where only a few people know. It is not only severe illness which can keep an elected president out of sight. There are many other things that can account for an elected president’s absence from his people. The truth, however, is with those who are close to him such as Cabinet ministers, family and, perhaps, doctors. In as far as keeping the nation informed about Mr Sata’s whereabouts, the family should keep away! Only Cabinet has the singular responsibility to inform the nation.

Mr Michael Sata became president of Zambia on September 23, 2011 following general elections. He beat his rivals narrowly in the first past the post electoral system. This is why he should be a man of the people who elected him. In a democratic dispensation that we are striving to build in this country, an elected president is deemed to have been elected by all the people. He becomes president of all Zambians. In fact, he swears to serve all Zambians without fear or favour before God. This is why Cabinet, and not family, are supposed to fully account about his whereabouts in a proper and dignified manner. What has happened to president Sata since June, 2014 leaves much to be desired. It is actually a shame to say the least.

Mr Sata suffered a stroke in March 2008. He was flown to the Republic of South Africa for specialist treatment. He remarkably recovered from that traumatic illness. Thanks to the doctors who did a tremendous job to bring the future president of Zambia to life again. After he had come back from hospital in RSA, I visited him at his then private house in Rhodes Park. We had a chat. I encouraged and prayed for him. He was visibly fit and on the mend to full recovery. Mr Sata has been hitherto what one would call a chain smoker of both ordinary cigarattes and cigars. His Doctors in RSA had wisely advised him to stop smoking and moderate on Amarula on rocks. It is on record that Mr Sata profusely thanked late president Mwanawasa for having authorized his evacuation to RSA for medical treatment.

Later the same year, 2008, Mr Sata participated in a presidential by-election which was won by Mr Rupiah Bwezani Banda who succeeded late president Levy Mwanawasa. Election campaigns are very demanding on the part of campaigners, particularly presidential candidates who have to travel throughout the over 750,000 square kilometres of Zambia’s land mass and addressing rallies. It is really strenuous to say the least. Mr Sata came second and there was no visible exhaustion or illness shown after he lost the election.

The reason why the people of Zambia want to see the president regularly is to be assured that he is really working for them. The people want to hear him talk on several national issues alone. He cannot delegate this to the vice president or indeed anybody else. He has to appoint different people to serve the country in various senior positions. This also cannot be delegated. Those he appoints and serve on oath need him to swear them before they can take charge of their portfolios. The president also personally receives letters of credence from foreign diplomats, Ambassadors and High Commissioners. As head of state, president Sata chairs several institutions which meet regularly to consider important national matters including security. Such a figure, therefore, should not go into oblivion without proper explanation to the people of Zambia. If it is illness, a comprehensive statement must be made in time so that the people know the truth about the state of his health.

President Sata was born in 1937. This is the same year when his predecessor, Mr. Rupiah Bwezani Banda, was born. President Sata appears to be aging faster than RB. This is normal. When a person reaches the 70s in age, there are several things that come into play; forgetfulness, fatigue, weakness of body, inactivity, and of course even growing grey hair, bald head, loss of some teeth, eyesight, etc. Once some of these things come up to a person who is president of a vibrant country like Zambia, such a person cannot serve diligently. He deserves to leave the high office of president and retire peacefully. Mr Sata was created just as most other mortals in terms of longevity of his life. Aging cannot be reversed nor cured because it is not a conventional disease.

Zambians must read the Republican Constitution and other laws of the land which give guidance on what to do when a head of state or other leaders either fall sick or get incapacitated due to old age. We are a democracy and laws are used to govern the country. President Sata should not be treated as a sick chief pending death. In our democracy, a president must be as fit as a fiddle to govern the country. When president Sata appeared in public on Labour Day, he looked visibly emaciated and weak! Former presidents Kaunda and Banda who were present looked healthier and fit. Why should president Stata’s colleagues pretend that president Sata is fine, well and working. You may hide illness but death will certainly be known. How will they explain that eventuality!

Article 36 of the Republican Constitution reads as follows and I quote:

“36; Removal of President on grounds of incapacity.

(1) If it is resolved by a majority of all the members of the Cabinet that the question of the physical or mental capacity of the President to discharge the functions of his office ought to be investigated, and they so inform the Chief Justice, then the Chief Justice shall appoint a board consisting of not less than three persons selected by him from among persons who are qualified as medical practitioners under the law of Zambia or under the law of any other country in the Commonwealth, and the board shall inquire into the matter and report to the Chief Justice on whether or not the President is, by reason of any infirmity of body or mind, incapable of discharging the functions of his office.

(2) If the board reports that the President is incapable of discharging the functions of his office, the Chief Justice shall certify in writing accordingly and shall table such certificate, with the report of the board before the National Assembly who shall on a motion, passed, by two thirds majority:-

(a) ratify the decision of the board, and thereupon the President shall cease to hold office; or

(b) reject the decision of the board and cause a further inquiry into whether or not the President is incapable of discharging the functions of his office and shall thereafter decide on such question by a two-thirds majority vote, which decision shall be final.

(3) Where the Cabinet resolves that the question of the physical and mental capacity of the President to discharge the functions of his office should be investigated, the President shall, until another person assumes the office of President or the board appointed under clause (1) reports that the President is not incapable of discharging the functions of his office, whichever is the earlier, cease to perform the functions of his office and those functions shall be performed by:-

(a) the Vice-President; or

(b) 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, by such member of the Cabinet as the Cabinet shall elect.

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.

(4) A motion for the purposes of clause (1) may be proposed at any meeting of the Cabinet.” End of quote.

This is the clause in the, currently, functional Constitution that Cabinet members and Parliament should be pondering vis-a-vis president Sata’s condition. President Sata is unwell and may be in that state a little longer. Zambians are not ready to be governed from a sick bed.

As readers will observe, the clause has several lacunae. The current Cabinet is full of followers instead of leaders. All owe it to the sick man to be there. Additionally, they all want to be president even when some know that they are not, actually, material for the presidency.

The Vice-President does not qualify because he is a “tidye nawo”. Zambia will look and even be deemed to be very confused to have a “tidye nawo” as president of the Republic. I know that he is lobbying for that! Any way, he will have to prove that both his parents were born in Zambia and which villages they hailed from in terms of Article 34 (3) (b); “both his parents are Zambians by birth or descent.”

Let Zambian people ignore falsehood and pretence. We will all die in a different manner. Illness is the messenger of death. Zambia lives and will live forever. There is nothing cruel about removing president Sata from office any time soon. Removal is a permissible constitutional matter.



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