Lungu’s government is illegal, here is why

Lungu’s government is illegal, here is why

By   Prof Michelo Hansungule

The constitution Chapter one of the Laws of Zambia makes adequate provision for the construction of an inclusive, fair and equitable state in which everyone should feel a clear sense of belonging regardless of who they are.  This feeling in the minds of citizens, that they belong, and not the dollars or Euros is the sine quo non for development. According to law, citizens stand on an equal footing versus each other and vertically in relation to the state.

This is why because there are plenty of uncivilised people around us particularly those in government who feel because they are for the time being running government they can use and abuse that power to discriminate against those they do not like, drafters of our constitution entrenched an important injunction in article 11 of the 1990 constitution which is still in force guaranteeing equality of all. Relevant parts of article 11 read:

‘………It is recognised and declared that every person in Zambia has been and shall continue to be entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed, sex or marital status, but subject to the limitations contained in this Part, to each and all of the following, namely: (a) life, liberty, security of the person and the protection of the law; (b) freedom of conscience, expression, assembly, movement and association; (c) protection of young persons from exploitation; (d) protection for the privacy of his home and other property and from deprivation of property without compensation…………..;

Particularly important to highlight here is reference to race of an individual which we are born with and should be proud of; place of origin like you, you come from Bweengwa or Dundumwezi which opposes government and espouses political opinion opposite to that championed by the ruling party and, therefore we will not treat you equally in relation to the distribution of the public good. The principal of equality has not been fully developed in Zambia with the result that government treats some of its citizens with a cavalier or disdainful attitude. When it comes to sharing public office, president Edgar Lungu’s government has completely left out some people because they come from certain ethnic groups. Similarly, Edgar Lungu has been illegally retiring from public service including the military in the ‘public interest’ only officers believed to come from certain ethnic groups.

Article 19 of the African Charter on Human and Peoples’ Rights which Zambia is signatory to, explicitly forbids state parties from discriminating against certain groups in the country. This expands the scope of article 11 of the Zambian constitution which typically protects individual citizens from unequal treatment. Article 23 of the constitution guarantees the principle of non-discrimination to all which builds upon article 11. Because we are all equal before the law, it follows that no one even if a state has a right to discriminate against another. As far as the constitution is concerned, we all proudly stand on the same footing. Imagine if this was not the case and we all have one mind on political issues which is what government of president Edgar Lungu wants of us, we are like sheep heading into one direction. What kind of humans are these, of one mind?  

Building upon this, the preamble to the 2016 constitution became even more outspoken about this. It categorically states:  

‘We the people of Zambia …….RECOGNISE AND UPHOLD the multi-ethnic, multi-racial, multi-religious and multi-cultural character of our Nation and our right to manage our affairs and resources sustainably in a devolved system of governance’.

Particularly of note here is reference to ‘multi-ethnic’…..character of our nation, think about this? This is the picture of this experiment called ‘Zambia,’ it is ‘multi-ethnic’, that is its character. This should reflect in cabinet, it should reflect at permanent secretary level who are the soul of government. It should reflect at other levels of government like directors along with other requisites like qualification, competence, experience, etc.

Now I challenge president Edgar Lungu to disprove my statement above and show me what is ‘multi-ethnic’ as commanded by the constitution about his current cabinet? What is ‘multi-ethnic’ about his permanent secretaries? I will retract this article and apologise through the same platform it will be published once I am proven wrong.  

According to Part 1 (1) of the Zambian constitution, the constitution is the supreme law of the Republic of Zambia. Based on this, it states in Part 1 (4) that :

‘An act or omission that contravenes this Constitution is illegal’.

In other words, if an act or omission, for example, by the president contravenes this constitution read as a whole, that act or omission is illegal. It doesn’t matter whether after that act or omission the president or his officials convene a press conference and swear those officials into office in front of cameras, the whole scheme is illegal. To underline this, Part 1 (3) states as follows:  

‘This Constitution shall bind all persons in Zambia, State organs and State institutions’.  

Regardless of how you define the president, if he is a person, he is bound by the constitution. If he is a state organ or a state institution, he similarly is bound by the constitution and must act consistent with it.

And to complete this injunction, we built a default mechanism which allows citizens who feel any person organ or institution has acted inconsistent with the constitution to go to the constitutional court and lodge a complaint. But we all know unfortunately that as a matter o fact we do not have a constitutional court. Due to the serious lapses of the judges in that court, the ‘court’ is still ‘stillborn’. But in terms of principle we built that default mechanism for that purpose.

Particularly on the exercise of the president’s powers in Part VII of the constitution from article 90 through to article 92 it states:

‘……..The President shall, in exercise of the executive authority of the State— (a) respect, uphold and safeguard this Constitution; (b) safeguard the sovereignty of the Republic; (c) promote democracy and enhance the unity of the Nation; (d) respect the diversity of the different communities of Zambia; (e) promote and protect the rights and freedoms of a person; and (f) uphold the rule of law (emphasis is mine).

In other words, once a person is elected into office he is not given blanket authority to govern according to their dreams. There are prior binding principles one must follow to govern the country and here they are above ‘respect, upholding and safeguarding the constitution, unity of the Nation, respecting the diversity of the communities of Zambia’, as the foundational principles to guide you every day every minute in the process of governing. Because the constitution is supreme and it binds all persons, institutions and organs these principles are not optional, they are mandatory. In other words through them Zambian people have decided to eat into your power Mr. president to the extent of these principle because they don’t trust you to ensure them without people directly dictating them on you.  

Article 92 introduces a compulsory norm when it states:

‘…….(1) The President shall perform, with dignity, leadership and integrity, the acts that are necessary and expedient for, or reasonably incidental to, the exercise of the executive authority.

Now, think about this? Is composing a cabinet which is not diverse in relation to the ethnic composition of the country an ‘act of dignity’ or an ‘act of leadership’? Retiring all senior military or public officers only from some ethnic groups an act of integrity which is reasonably necessary to the exercise of executive authority?

Last week, a writer Mr. Ngoma, published an embarrassing list of only senior officers in government whose roots are in Malawi. The Chief Justice, the Electoral Commissioners, head of the army, cabinet secretary and others all have roots traceable to Malawi or other countries than Zambia. Why should it be like this? And these officers, do they have any conscience?  They can’t see that it is too much and decline these illegal appointments on their own?

I am asking all those senior officers in government whether in Parliament, Executive at all levels and judiciary whose origins are from outside to appeal to their conscience and quit because it is unconstitutional for them to be where they are even for one minute.

This reminds me of ‘Chiluba’s law’ in article 34 (3) (b) of the 1990 constitution aimed at fixing Kaunda which required the president to come from parents of Zambian descendants. Though it was illegal because it aimed at fixing one man, the spirit behind it was valid.  

Therefore the constitution which laysdown and defines the powers of the president and of other institutions is the framework against which the president should exercise his powers. Of course the president can also look at other instruments, for example, the Bible or the Koran depending on his faith to guide him in the exercise of the powers of his office. Others look at witchdoctors before going into office every morning or even to their popular bar to give them that strength and power they believe in to solve the problems on their tables.

However, more than anything else, the constitution is the principal framework on institutions and the exercise of powers needed to drive those institutions. Now this is not just a function of lawyers perhaps because they studied law including constitutional law at the university. It was going to be easy if it was that simple. Unfortunately it is not as simple as it appears.

The other day, I saw president Lungu in the newspaper surrounded by several law books as he was about to sign the constitution into law. God gracious, this is not about knowing law or the constitution to surround yourself with several statutes in front of cameras to prove you are a lawyer or that you govern by law. Remember the saying ‘ the cover outside may not tell the whole story in the book’.

In fact, some of the lawyers don’t do constitutional law at the university but end up representing clients on constitutional law cases in practice. A constitution is something everyone must know because it is a constitution. This is why in some jurisdictions, study of constitutional law is mandatory by all citizens whether in natural sciences, humanities or just ordinary members of the general public.

Every Zambian should equip themselves with a copy of the constitution and government should translate the constitution in all local languages for Zambians to empower themselves with its provisions. Zambians should not leave governance to government. It is a duty of every Zambian to say ‘NO’ to misgovernance and insist on good governance in accordance with the constitution.

Governing in default of the constitution is illegal. The exercise of state powers utravires the constitution renders the business of governing and its outcome illegal. In our constitution, the principles to lead towards good governance are clearly and eloquently laid down in the text of the main law of the country.  

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