By Brigadier General Godfrey Miyanda
I commend President Lungu for breaking his silence on serious and contentious national issues, especially that he has finally expressed his legal opinion by citing provisions in the law. This is how it should be for it will compel others to address the issues and not resort to insults in response.
That said I contend that the President’s reasons for extending the tenure of the former ministers is patently flawed on account of improper considerations. It is wrong to allege that his statement on this matter of public importance is final. In this regard finality rests with our Courts, in this instance the Constitutional Court, which regrettably is NOT functional yet.
To say that the office of the minister does not fall vacant because of Article 116 (3) (e) is to misconstrue the import of the word ‘dissolution’ as well as failing to interpret the whole Article 116. Article 116 (1) states thus “The President shall appoint a prescribed number of Members of Parliament as Ministers.” Firstly, I contend that this provision is prospective, that is it refers to future appointments. If Parliament had intended it to be retrospective or retroactive it would have stated so expressly. Thus Article 116 (3) which the President relied on should be read with Article 116 (1) for completeness of the argument. Secondly, the word “dissolution” must be read with Article 88 (1) as amended which reads thus “The term of Parliament shall be five years commencing from the date that the Members of Parliament are sworn into office after a general election and ending on the date that Parliament is dissolved”. In other words this is a contract of sorts for all MPs elected in the 2011 general election and any others who come to Parliament following a bye-election or presidential nomination to Parliament after that general election. Note that this provision is also prospective, rather than retroactive.
To reinforce my argument I quote Article 88 (6) (a) of CAP 1 (the previous constitution under which all the ministers were serving) which states thus “Subject to clause 9 the National Assembly shall, unless no sooner dissolved, continue for five years from the date of its first sitting after the commencement of this Constitution and then stand dissolved.” Even in this case the five years begins to run following the 2011 general elections.
Thus in terms of constitutional obligations by the State towards its workers known as Members of Parliament, the State should pay them their dues only up to the date of dissolution, which is Wednesday 11th May 2016 from 23.50 hours. Any salary and/or other benefit paid after that date should be deemed as theft of public funds. It is misleading for the President to allege that the Ministers have to hand over their responsibilities. There is nothing for Ministers to hand over because they have no executive function but are mere policy advisors of the President; they cannot hand over any policies because the new government will come with new policies. During the ninety lame duck days remaining to 11th August of the government of President Lungu, no new policies may be initiated. What work will the Cabinet be performing other than campaigning?
Last but not least, there is a moral reason why these former ministers should stop their schemes forthwith. It is immoral for these former workers to be drawing salaries for three months after their term of duty has expired. I believe that they have been paid or are about to be paid what is due to them. The President is excepted because Article 35 (4) provides that “a person assuming the office of the President in accordance with this Constitution shall continue in office until the person elected at the next election to the office of President assumes office, unless (a) he resigns his office; (b) he ceases to hold office by virtue of Article 36 or 37, or (c) the National Assembly is dissolved”. It will be discriminatory if other workers in Zambia demand similar treatment but their demand is rejected! Constitutionally, and even under the common law, the President’s threat to act against citizens who want to carry out a citizen’s arrest is intimidation and contradicts his Oath of Office; every citizen is obliged to help to restore and enforce law and order. It is in order for patriotic Zambians to arrest these former government workers if they persist in masquerading as government employees and abusing public resources.
I advise the affected former ministers to politely thank their party president but decline to continue pretending to work when their scheme is to continue campaigning using government resources. President Lungu will not protect them when the day of reckoning comes.