By Dr Robert Mtonga
Without a doubt, Zambia is yet again in a constitutional crisis created by the sitting Government’s “clarification” that Cabinet Ministers, a creation of the Zambian Parliament, should remain in place after the institution that gave birth to them has been dissolved to pave way for general elections slated for 11th August 2016.
The PF is basing its argument on the following specific article which I quote in part thus:
Constitution of Zambia (Amendment) [No. 2 of 2016 21)
116. (1) The President shall appoint a prescribed number
of Members of Parliament as Ministers.
(3) The office of Minister becomes vacant if—
(a) the Minister is removed from office by the President;
(b) the Minister resigns, by notice in writing to the President;
(c) in the case of a nominated Member of Parliament, the
nomination is revoked;
(d) the Minister dies;
(e) another person assumes the office of President; or
(f) the Minister has a mental or physical disability that makes
the Minister incapable
The PF government is looking at 116(1) and 3(e)) arguing vehemently that there is nothing in this article which says Cabinet Ministers are to vacate their offices.
On the face of it, is seems so.
However, when one looks at what the Draft (People-driven, Technical committee drafted/compiled) out which the aforementioned article came by way of amendment, a different picture emerges! Take a look or is it a read?!
The (DRAFT) Constitution of Zambia (as compiled by the Technical Committee, August 2013) :
114. (1) The President shall appoint a prescribed number of persons, who are not Members of Parliament but who qualify to be Members of Parliament, as
Ministers, subject to ratification by the National Assembly.
(3) The office of Minister becomes vacant if-
(a) the Minister is removed from office by
(b) the Minister resigns, by notice in
writing to the President;
(c) the Minister is included as a member
under a party list provided for in Article
(d) the Minister dies;
(e) another person assumes the office of
(f) the Minister has a mental or physical
disability that makes the Minister
incapable of performing the functions
of that office
I ask the readers to look at 114(1) and 3(e) closely. One sees that the drafter where anticipating a scenario where Cabinet Ministers were to be appointed from PERSONS WHO ARE NOT MEMBERS OF PARLIAMENT!
It is to this group that articles 114(3e) refers! These persons need not vacate their offices after dissolution of parliament given that they are NOT MEMBERS of Parliament. This stands to reason, does it not?
Since it is an indisputable fact that Article 116(1) of the Constitution of Zambia (Amendment) [No. 2 of 2016 21) is a product of a partial amendment of article 114 (1)of the Draft constitution, the spirit and object of Draft Constitution guiding light and therefore all too crucial in interpreting and arriving at the cause of what is in conflict at present.
In a word, the amendment should have taken into account the target subjects! The partial amendment simply replaced the key words “persons NOT MEMBERS OF PARLIAMENT”[114(1)], with MEMBERS OF PARLIAMENT[116(1) ]and left everything else intact.
If anyone is still in doubt Article 72(1) of the Constitution of Zambia (Amendment) [No. 2 of 2016 is a great clarifier thus:
72. (1) A Member of Parliament shall, except the Speaker and
the First Deputy Speaker, vacate the seat in the National Assembly
upon a dissolution of Parliament.
Therefore if this street analysis is true, then Cabinet Ministers have ceased to occupy their offices with the dissolution of parliament.
This is a view my layman’s view as I neither a lawyer nor a son of one.