Countrymen and women,
Following the issues raised by Brigadier General Godfrey Miyanda regarding Vice President’s Guy Scott’s ineligibility for both Presidency and Vice Presidency, I also want to add that Article 34 dealing with the parentage clause has not been amended and as such it would be irregular that he would qualify just on the basis of the judgement in the Frederick Chiluba case. As the law stands, by fact, Dr. Scott is disqualified by the parentage clause.
I also want to add another dimension and contest that Hon. Edgar Lungu is still the Acting President of Zambia and can only cease to perform functions of the Presidency once the speaker has informed him of the President’s return or indeed to an elected President. It does not provide anywhere that Hon Lungu can handover to another Acting President but to a substantive one.
Zambians know that when the late President Michael Sata left the country for the United Kingdom, the nation was informed that he was going for medical check-ups. The implication of this would be that President Sata left the country under Article 39 (1) of the Constitution of the Republic of Zambia which deals with Discharge of functions of President during absence, illness etc.
Under this provision, the Acting President can only hand over the instruments of power upon the return of the President, or upon the election of a substantive President. It does not provide for anywhere that the instruments of power shall be handled to another Acting President and I challenge the Attorney General to provide a legal opinion on this matter. By practice, the letter of appointment to Act provides for a section giving the President the said powers or indeed where he is deriving that authority. But more importantly in this case, the President should indicate under which law he is appointing the Acting President.
Article 39 (1) (2) (3) reads as follows:
- (1) 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, authorize the Vice-President, or where the Vice-President is absent from Zambia or is incapable of discharging the functions of the office of President, any other person, to discharge such 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.
(2) If the President is incapable by reason of physical or mental infirmity of discharging the functions of his office and the infirmity is of such a nature that the President is unable to authorize another person under this Article to perform those functions-
(a) the Vice-President; or
(b) during any period when the Vice-President is absent from Zambia or is himself, by reason of physical or mental infirmity, unable to perform the functions of his office, such member of the Cabinet as the Cabinet shall elect; shall perform the functions of the office of the President: 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.
(3) Any person performing the functions of the office of President by virtue of clause (2) shall cease to perform those functions if he is notified by the Speaker that the President is about to resume those functions or if another person is elected as, and assumes the office of, President.
As a layman, I seek to ask the following questions:
- If the President appointed Minister of Defense and Justice, and PF Secretary General Hon Edgar Lungu to act under Article 39 (1), on what basis did the Attorney General advice Cabinet that Dr. Guy Scott is the rightful person to Act?
- Why did the Attorney General only rely on Article 38 which deals with vacancy in the office of the Presidency without addressing himself to Article 39 (1) under which Hon. Lungu should have been appointed since the President left the country for medical purposes?
- Why is it that President Sata never allowed Vice President Guy Scott to act as President if not for the reasons that he was incapable to perform functions of the office of President? Why should he act now that he is dead?
- Was President Sata on the wrong side of the law when he asked others to act even when the Vice President was verily available in the country?
I urge Cabinet to inform the nation on the status of this matter otherwise Zambians should consider what transpired today to be a coup which should force the Attorney General to step down and Guy Scott giving back the instruments of power to the rightful holder until a substantive President is elected. The courts must come in to provide interpretations of the law. If the President appointed Hon. Lungu to act under Article 39, I contest that Edgar Lungu still remains the Acting President until a substantive President is elected within 90 days.
Misheck Shulumanda, Zambia