By Professors Melvin Mbao, Michelo Hansungule, Chaloka Beyani and Cephas Lumina
Zambia is widely recognized as one of the most peaceful and stable countries in the world. However, recent events threaten to undermine the peace and stability that the country has enjoyed for the last fifty years. In particular, self-serving interpretations of the constitutional provisions concerning whether Acting President Guy Scott qualifies to act as President or is eligible to stand for election to the office of President have occasioned a great deal of uncertainty with the potential to stoke up conflict. It is important that we do not allow our country to go down the path of conflict and political instability that has characterized many other African countries and which we, Zambians, have been fortunate to avoid. In this context, we would like to offer our considered legal opinion on the correct interpretation of the constitutional provisions relating to interim succession to the presidency following the recent passing of President Michael Sata. At this point, we will confine our views to the more immediate question of the eligibility of Dr Scott to act as President.
It appears that the source of the uncertainty is the so-called “parentage clause” – Article 34(3)(b) of the Constitution – which stipulates that both parents of a candidate for election as President must be Zambians by birth or descent. This is among the qualifications for election to the office of President.
It has been claimed by some that Vice-President Scott has assumed the Acting Presidency illegally and that it is in fact Defence and Justice Minister, Edgar Lungu, who ought to be Acting President until presidential by-elections are held with the prescribed ninety days. This reasoning is based on the claim that Mr Lungu was given the authority to act as President by the late President and that such authority has not been revoked, as well as the view that Dr Scott does not qualify to stand for election to the office of President of Zambia in terms of the “parentage clause.” However, an examination of the relevant constitutional provisions indicates that this interpretation is fundamentally flawed.
In our view, the provision of the Constitution that is pertinent to the situation with which the country is confronted is Article 38 (“Vacancy in office of President”) and not Article 39 (“Discharge of functions of President during absence, illness etc”) in terms of which Mr Lungu was given authority to act as President during President Sata’s absence. Furthermore, Article 34 has no bearing on Mr Scott’s eligibility to act as President following the death of President Sata.
Paragraph (2) of Article 38 provides:
“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 the President until a person elected as President in accordance with Article 34 assumes office.”
In terms of the above provision, a vacancy in the office of President occurs through the death or resignation of the incumbent, or by reason of his or her ceasing to hold office in circumstances specified in Article 36 (removal on grounds of physical or mental incapacity following determination by a medical board and certification by the Chief Justice), Article 37 (impeachment by the National Assembly for violation of the Constitution) or Article 88 (dissolution of Parliament). In the current circumstances, a vacancy has arisen because of the death of the President.
We understand that prior to his departure for treatment abroad, President Sata authorised Mr Lungu to act as President in his (President Sata’s absence). In terms of the applicable constitutional provision – Article 39 – such authority was valid until revoked by the President (the appointing authority). Article 39 (1) provides:
“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 as he may specify, and the Vice-President or such other person may discharge those functions until his authority is revoked by the President.”
Obviously, given the death of President Sata the authority given to Mr Lungu to act as President cannot be revoked by the appointing authority in terms of Article 39. Indeed, as Professor Muna Ndulo has correctly pointed out, the death of President Sata has rendered Article 39 inapplicable to the situation in which the country finds itself. In other words, we are dealing with a “vacancy in the office of President” occasioned by the death of the President and not a mere inability of the President to discharge his functions due to “absence, illness or any other cause”. In these circumstances, Article 38 clearly becomes applicable and Mr Lungu’s authority to act as President falls away by virtue of the provisions of Article 38.
Article 39 of the Constitution further states that “any person performing the functions of the office of the 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.” It should be noted that dissolution of the National Assembly is ordinarily one of the triggers for a presidential election. Clearly, as Acting President in terms of Article 39, Mr Lungu would not have had the power to dissolve Parliament and call for elections to the office of President following the death of President Sata – a situation that would lead to great constitutional uncertainty given the need to fill the vacancy in the office of the President in accordance with the Constitution.
Some have sought, nevertheless, to argue for the disqualification of Vice-President Scott to act as President until presidential elections are held in terms of Article 38 on the basis that he does not qualify to be President in terms of Article 34. Unfortunately, this view has been reinforced by the fact that Dr Scott has never been authorised to act as President since the Patriotic Front came to power. While we do not propose to offer an opinion on the “parentage clause” at this stage, we are of the view that there is nothing in the Constitution that prevents Dr Scott acting as President in terms of Article 38, or indeed, ordinarily, under Article 39.
The “parentage clause” does not apply to the office of Vice-President nor is it a requirement for one to act as President. It is a requirement only in relation to candidates for election to the (substantive) office of President as stipulated in Article 34 of the Constitution and certainly not a requirement for one to “perform the functions of the office of President” as contemplated in Articles 38 and 39.
In our collective estimation, the Attorney-General provided the correct and appropriate advice regarding the applicable constitutional provision. We therefore fully support his advice as well as the opinion rendered by Professor Ndulo.
The difficult time that the country is going through at present requires that we all respect the Constitution and avoid questionable interpretations of the Constitution that are not only politically expedient and self-serving but also potentially pose a threat to the peace and stability that we have been fortunate to enjoy for the past fifty years.
The authors are all Zambian citizens and write in their personal capacities.
Melvin Mbao is a Professor of Public Law and Legal Philosophy and Executive Dean of the Faculty of Law, North-West University, South Africa.
Michelo Hansungule is a Professor of Human Rights Law at the Centre for Human Rights, University of Pretoria and a Member of the International Commission of Jurists.
Chaloka Beyani is a Professor of International Law, London School of Economics and the United Nations Special Rapporteur on the Human Rights of Internally Displaced Populations.
Cephas Lumina is a Research Professor of Public Law, University of Fort Hare, South Africa; an Extra-Ordinary Professor of Human Rights Law, Centre for Human Rights, University of Pretoria; an Advocate of the High Court of Zambia; and former United Nations Expert on foreign debt and human rights.