Removal of BoZ governor illegal, null and void, says Law professor

Removal of BoZ governor illegal, null and void, says Law professor

 

By Professor Muchelo

Hansungule

In summarily dismissing Dr. Denny Kalyalya and replacing him with controversial figure Christopher Mvunga, president Edgar Lungu is in effect appointing himself as Governor of the Central Bank. Very sad respected economist Dr. Kalyalya has to go packing this way like a general worker with no tenure yet this is a central bank we are playing with. In other countries the currency will have plummeted to below zero levels on rumuours the Governor was history.

Quite unsurprising, media is feverish with news of this unusual development. One of the opposition political parties the Socialist party has issued a long statement condemning the unceremonious removal of Dr. Danny Kalyalya and his replacement by the president of Christopher Mvunga.

Titled ‘know your new BOZ Governor’, the statement chronicles some of Dr. Kalyalya’s achievements at the helm of the central monetary authority concluding that he has been elbowed out because he refused to print money for president Edgar Lungu to use to buy himself the third term at polls next year. Attached to the statement is a video of the new Governor clearly drunk and trying to sing praises of former president Rupiah Banda.
Another Zambian going by the name CDE Emmanuel Mwansa has also circulated a statement to the social media in which he tries to describe the extremely indecent misbehaviour of Christopher Mvunga while on board South African Airways from Johannesburg to Lusaka.

Then deputy minister, Mvunga is said to have so badly behaved both to the Crew and to other passengers that the airline contemplated forcibly removing him from the aircraft. The chap appears to have been drunk and not in control of himself.

I personally don’t know this man and it is not necessary for me to know him. However this is a public office and that is my interest. Bank of Zambia Governor is a constitutional office. Part XV11 Article 213 of Act No. 2 of 2016 of the Constitution of Zambia establishes the Bank of Zambia. This gives constitutional force to the central monetary authority in the country and therefore makes the central bank a constitutional office beyond politics. Therefore article 213 not only guarantees the existence of the Bank but also protects it from any outside or external influence such as from political forces. Article 213 contrasts the Bank from commercial banks which exist under general law as private entities. On the other hand the Bank as a creature of the constitution is owned by the public generally and its chief executive officer – the Governor – is a public servant.

Article 214 sets out the power to appoint the Governor. It states:
(1) There shall be a Governor of the Bank of Zambia who shall be appointed by the President, subject to ratification by the National Assembly,
Interestingly, there is no clause on the dismissal or removal of the Governor from office by the president in the constitution. Rather, the next clause requires the Governor to be a citizen of Zambia. Further, the constitution provides that the Governor shall be ‘…….a person who has specialised training and experience in economics, finance, accounting, banking, law or other field relevant to banking, as prescribed;
So, why would the constitution omit to specify that the president who appoints the Governor shall also remove the Governor? Why is it silent on the removal of the Governor from office?

First this is in the nature of a senior position such as this. By keeping silent on removal, the constitution is only being true to the practice wherein authorities are expected to ensure guaranteed tenure for the office of Governor which accords with sensitivity due to this office. In other words it is expected that contracts concluded with the Governor on his employment will be allowed to end naturally and not by an act of a third party this in order not to harm or cause Covid-19 to the markets and thereby destroy the economy.

Second, is the issue of law. Since the Governor’s appointment is not by the president alone but with involvement of parliament through the ratification process, it follows that his removal will go through the same route. In other words, parliament will have to be convened to consider the question of removal from office of Governor of the Bank. This will require motivations before relevant parliamentary authority before parliament takes a decision. This would be the basic meaning of the word ‘tenure’ attached to the office of Governor of the central Bank.
President Edgar Lungu who apparently is a replica of Christopher Mvunga in terms of misbehaviour when he too is drunk has not followed the constitution in the removal from office of the Governor Dr. Danny Kalyalya. Consequently the purported removal is null and void and markets should ignore it.

In video: Denny Kalyalya speaking on ZNBC a few days before being fired as Bank of Zambia governor. He has been replaced by Mr kabotolo

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