By Chanda Chisala
Article 38 (2) of the Constitution of Zambia says:
“Whenever the office of the President becomes vacant, the Vice-President or, in the absence of the Vice-President or if the Vice President is unable, by reason of physical or mental infirmity, to discharge the functions of his office, a member of the Cabinet elected by the Cabinet shall perform the functions of the office of the President until a person elected as President in accordance with Article 34 assumes office.”
The debates about Guy Scott’s eligibility to act as president have haunted Africa’s only Caucasian vice-president from the time he was appointed as the late Mr. Michael Sata’s (MHSRIP) number two. The president himself was apparently unsure about the qualification of Scott as an acting president and he opted to always choose someone else to act in his stead whenever he was away from the country. Some citizens believed that a person should only act as president if he is qualified to stand as a presidential candidate, with the presidential qualifications given in Article 34. The Constitution does not say any such thing anywhere, of course, but those who promote this view claim that it is what makes logical sense. They ignore the fact that the whole point of a Constitution or indeed any law is to state things explicitly in case of different views, and if Article 34 was necessary in Article 38 above, it would have easily stated so.
That debate was forcefully resurrected on blogs and social media after the unfortunate death of the president of Zambia on October 28th.
But the Constitution is not only extremely clear on this issue, it is also very logical.
Scott is qualified to act as president simply because he is qualified to be a Vice President. Acting as president is not the same as standing for elections to the office of the president. The fact that it is temporary is what makes it a lighter affair.
The Constitution says the Vice-President should not act only if he is unable “by reason of physical or mental infirmity.” It mentions no other reason for which the Vice President would be “unable” to act.
If, as General Miyanda and others have constantly argued, a Vice President should have Zambian-born parents like a presidential candidate, then he should also have all the other qualifications of a presidential candidate. But the president is not required to choose a vice-president only from those who have attained the age of 35, for example. The Constitution allows him to pick anyone from the National Assembly, and qualification to the National Assembly does not require that one should be at least 35.
We can easily see why this makes sense if we imagined a situation where a Youth Party won all the parliamentary seats in an election while being led by an older man who is over the age of 35. By the reasoning of General Miyanda, such a president would not be permitted to choose anyone from the National Assembly as his Vice President because they would all be under the age of 35.
How do we know that Edgar Lungu, for example, was fully qualified to be a presidential candidate since he was acting president when the president left the country? Has he sworn an affidavit to say that his parents are Zambian-born? Has he sworn that he has been “domiciled in Zambia for the last twenty years”? It’s obviously ridiculous to expect that every time a president is leaving the country, he should first make sure that the person he chooses to remain acting for him has been domiciled in Zambia for twenty years, etc etc etc, which would only undermine the purpose of such an efficient executive tool.
If we accept that no such requirements are necessary for one to act as president when the president is out of the country, it is easy to see why the Constitution also wisely omitted any such stringent qualifications from a person who is to temporarily act as president in the case of a president’s death. After all, he is not really even acting as president since the Constitution does not permit him to do some things that a real president is empowered to do, like dissolving National Assembly or firing presidential appointees, etc. It is merely a holding position that should be held only for a short time and as such it would be illogical to put too many qualifications on it.