The Law Association of Zambia (LAZ) says there is no provision in the constitution that requires an appointed Attorney General or Solicitor General to take Oath after ratification by parliament.
But the same LAZ says by convention, the attorney general should take oath of office for his appointment to be valid and complete.
A convention is an accepted way in which things are done. It is not written down in law but tend to be old, established practice. It is the way something has always been done and departure from it requires justification. For example, by law, the Queen of UK can appoint anyone to be prime minister after elections. But by convention, the leader of the party that wins the majority of MPs in the house of commons becomes prime minister and the Queen has to follow convention and endorse.
The statement by LAZ is to some extent misleading because the constitution of Zambia does not outlaw conventions.
But what is important to remember in Zambia is that there is no justification to depart from the requirement to swear in the attorney general, the only problem is that president Sata, is too sick and therefore unable to stand and make people swear.
LAZ Vice President Linda Kasonde said the only requirement that the constitution provides is that the appointment has to be ratified by parliament.
Ms. Kasonde however stated in a statement released to media in Lusaka yesterday that both offices are constitutional offices and therefore are public offices.
She said this means that the two offices are accountable to the public and should preserve the sanctity of the constitution.
Ms Kasonde added that it was also important to note that the Oath of a person who sits in Cabinet is vital and mandatory because Cabinet, in the conduct of its business, is guided by three principles.
Ms. Kasonde said the principals include collective responsibility, confidentiality and declaration of interest.
She said evidently, an oath is necessary if Cabinet functions are to be discharged in light of the three principles.
She however stated that even though the Constitution of Zambia does not provide for the taking of Oath when the Attorney General and Solicitor General are appointed, by convention it is mandatory for such appointed persons to take oath for the appointment to be valid and complete.
Ms. Kasonde explained that according to Section 8 of the official Oaths Act, if a person has taken an Oath for a particular office and subsequently appointed to another office, such a person need not take another Oath if the Oath he is required to take for the new office is the same as the one taken for the previous office.
She said in this regard, since the Oath taken by an Attorney General and a Solicitor General are the same, adding that if the current appointed Attorney General took an oath of office as Solicitor General, he need not take another Oath for the position of Attorney General.
She said that being the case, the current appointed Attorney General does hold the substantive office validly and can subsequently exercise his duties as such.
Ms. Kasonde however stated that on the other hand, a newly appointed Solicitor General needs to take an Oath of office before he starts discharging the functions that office if he has not taken a similar oath previously.