President Lungu breached the Constitution of the Republic of Zambia

The reconfiguration of Cabinet; An affront to the Supreme Law of Land

During the month of October 2015, the President of the Republic of Zambia made an announcement inviting deputy ministers and provincial deputy Ministers to attend cabinet meetings depicting that Cabinet had been reconfigured thus suggesting a shift in practice and policy in so far as it related to the manner in which Cabinet meetings are conducted vis –a vis its composition, who should attend as well as participate in the deliberations during Cabinet meetings. It is trite that the Constitution of Zambia prescribes the composition of Cabinet as an executive branch of government therefore an assessment of the constitutionality of the President’s decision is warranted.

Interestingly, whilst drafting the journal article on the subject matter at hand the author came across a newspaper article, reporting observations made by Professor Muna Ndulo ,in the Sunday Post Newspaper dated 25th October 2015 entitled ‘Allowing Deputy Ministers to attend cabinet meetings is ill-advised.’ The author is of the view that Professor Ndulo’s observations are legally sound and agrees with him on the law for the reasons given in this Article.

First and foremost we must be reminded of two critical issues.

1. Firstly at his inauguration, the President swore on oath to uphold and protect the Constitution as the supreme law of the land.
2. Secondly, that Cabinet is a creature of the Constitution and its existence is drawn from this constitutional source and thus the question is whether the “bloated and re-designed Cabinet” actually exists notwithstanding the fact that Article 49 clearly spells out the constitutional office holders who make up the composition of this executive body.

It must be appreciated that the existence and recognition of a Constitution in Zambia presupposes constitutional governance at all levels of government including the Presidency because any power exercised or decisions made by the three arms of government and all government agencies are subject to the supremacy of the Constitution which is the supreme law of the land from which all constitutional office holders including the Presidency draw their powers.

Therefore the office holders under these arms of government or government agencies including the Presidency are expected to act within the law so as to prevent inconsistency, injustice, unpredictability, subjectivity, illegality, arbitrariness and rule by individual preferences which are all contrary to the doctrine of constitutionalism. This calls for the respect of constitutionalism and the rule of law both in theory and in practice and its sustainability thereof, which is centred on the knowledge, accessibility and applicability of laws invoked by governors which should be for the benefit of all Zambians and not just the privileged few.

What the Constitution says

Article 50 of the Constitution stipulates that the functions of Cabinet are to formulate government policies and to advise the President on policy issues or such other matters as the President may refer to Cabinet. There is no legislative or regulatory space that has been provided to expand on the day to day operations of Cabinet but nevertheless it has its operations spelt out under the Cabinet Handbook which is merely an administrative guide.
Clause (1) of Article 49 provides for the composition of Cabinet and these are; the President, the Vice-President and the Ministers.” The author’s contention is that under clause (1) of Article 49 reference to Ministers connotes ‘full’ Cabinet Ministers only and does not include deputy or provincial ministers. We say this because the Constitution itself construes and differentiates between a ‘full’ Cabinet Minister and a deputy minister under Articles 46 and 47. You will note that Article 46 refers to Ministers appointed by the President from the National Assembly and entrusted with responsibilities as directed by the President to run government business which includes the administration of ministries or governments departments as the President may assign to such Ministers.

Then Article 47 creates a new class of ministers referred to as deputy ministers under clause (1) of Article 47 and provincial deputy ministers under clause (2) of Article 47. This distinction made to ministers under Articles 46 and 47 makes it clear which ministers are referred to under Articles 46 and 49 and clearly excludes deputy ministers and provincial deputy ministers.

If the intention was to include deputy ministers and provincial deputy ministers in Cabinet this would have been made explicit in Article 49. The lack of express reference to deputy ministers and provincial deputy ministers in Article 49 indicates a strong intentionality to exclude them from Cabinet. Arguably this understanding of the distinction between ‘full’ Cabinet Ministers from deputy ministers and provincial deputy ministers has shaped the composition of Cabinet and matters incidental thereto vis a vis who should be a substantive part of their meetings. Notably this is also the governance norm all over the world.

the President has acted outside his powers by extending an invitation to deputy ministers and provincial deputy ministers to form a constituent part of Cabinet meetings thus rendering his decision unconstitutional

Consequentially the author’s assessment is that the President has acted outside his powers by extending an invitation to deputy ministers and provincial deputy ministers to form a constituent part of Cabinet meetings thus rendering his decision unconstitutional.

It is apparent that the ‘re-designed Cabinet’ falls outside the parameters within which Cabinet is constitutionally set and recognised and the effect of this is that the ‘re-designed Cabinet which is non-existent under our Constitution is null and void abinito as it is illegally constituted and any of the meetings, deliberations, advise given and decisions adopted at any meeting held for the ‘re-designed Cabinet’ are of no effect at all. It is immaterial whether or not the so called ‘new members’ of cabinet are compelled to subscribe to the practice and procedure of such cabinet meetings in terms of quorum, deliberations as well as voting on a matter that has been tabled for consideration before Cabinet. What is fundamental in this respect is that deputy ministers and provincial ministers are, legally, not supposed to be in these meetings or even participate in them neither are they ex-officio members and as such the meetings of this redesigned Cabinet should ordinarily not continue if what we have now is a permanent structure and government should be unqualified on this point.

The author’s immediate reaction is that there was an attempt to modify the structure of Cabinet by the President through such an action and the resultant effect was that there was an attempt to have Article 49 jettisoned or rather expunged in its form and application from the constitutional text and this can be classified as another grave, arbitrary and illegal act primarily for the reason that the President does not possess the power to unilaterally modify any part of the Constitution. Undoubtedly that is the function of the legislature who are the elected representatives of the people and these people (the general citizenry) are ultimately the ones who hold the reserve power to enact a Constitution and call for an amendment or repeal thereof of any provision, section or part through these established legislative channels.

The gravity of a breach by the President of the Constitution cannot be underestimated because the Constitution of the Republic of Zambia is very clear with regard to the remedies available under clause (1) of Article 37 of the Constitution of Zambia which provides that a President can be impeached for any violation of the Constitution.

[pullquote]under clause (1) of Article 37 of the Constitution of Zambia provides that a President can be impeached for any violation of the Constitution.[/pullquote]

Why did President Lungu break the Law
In exploring the possible reasons as to why the President would go out of his way to attempt to illegally reconfigure Cabinet and ultimately the political and decision making system in the country, one would be inclined to subscribe to the notion that that the political reality on the ground is that, in the recent past the Patriotic Front (PF) made significant campaign promises in two major electoral campaigns in the run up to the 2011 tripartite elections and 2015 Presidential by elections respectively to deliver a new constitution once they are elected into Government. So perhaps the PF is under pressure to deliver a new constitution, whether acceptable or not, in readiness for the 2016 tripartite election. Thus it is perceived that the President’s decision to extend this invitation to deputy ministers and provincial ministers is a political strategy by the President to invent and award imaginary powers to deputy and provincial ministers under the circumstances in order to incentivize political loyalty and secure support for the draft constitution bill in parliament.

Implications
In terms of implications the invitation would achieve two undesirable things.

1.Firstly in view of the already imperfect application of the doctrine of separation of powers prevailing under the Zambian Constitution that allows members of the National Assembly to be appointed as Cabinet Ministers under clause (2) of Article 46 and at another level the appointment of provincial deputy ministers, from the National Assembly, under clause (3) of Article 47, the decision by the President has gone further to intensify an appointment system that leads to the undesirable fusion between the legislative arm of government with the executive.

This is contrary to the doctrine of separation of powers which aims at the prevention of the fusion between the legislature and the executive. The invitation would therefore results in the concentration of power in the same hands thus enhancing their exertion of power on the other branches of government. If the same people are appointed to the different arms of government conducting effective checks and balances becomes doubtful and problematic.

Article 51 of the Constitution which also clarifies the distinction between ‘full’ ministers and deputy ministers provides that “Cabinet and deputy ministers shall be accountable collectively to the National Assembly” compelling unity despite its undemocratic characteristic of discouraging disagreement even on ‘bad’ policies since ministers are not permitted to dissent against cabinet decision unless they resign. Notably the concept of collective responsibility was developed to bind ministers to Cabinet decisions as a powerful political imperative to appear publically as organised, united and convincing. However a dilemma arises in a multiparty democracy if full cabinet Ministers and other junior ministers are drawn from the opposition which introduces the possibility for division and dissent and the question that begs determination is whether they will be bound by the concept of collective responsibility? In comparison to New Zealand which has innovatively gone around this unity-dissent dilemma by including in coalition agreements ‘agree to disagree’ provisions that relieve ministers drawn from opposition in a coalition government to be free from the collective responsibility obligation; it is not clear whether we have the same arrangements in place in Zambia .The actual position on this issue may perhaps signal the real intent behind the invitation that was made by the President.

Invariably the implication of the President’s decision to invite deputy minsters and provincial deputy ministers to participate in Cabinet meetings is an attempt to stifle the independence required when considering matters tabled before the National Assembly and this further expands and fortifies the already weak system that is in place in so far as it relates to what is ordinarily expected of members of parliament when checking and scrutinising policies and laws adopted in Cabinet when presented to the National Assembly for approval. We must be reminded that natural justice dictates that if a person or group of persons, in this case Cabinet, decide on a matter how can they be expected not be biased when considering the same matter presented by them from Cabinet to themselves in the legislature.
Interestingly the President’s attempt to bloat the Cabinet has the undesirable effect of creating a ‘shadow National Assembly’ within itself and this is an act that does not fall short of whimsicality.

2.The second undesirable thing is that bloating Cabinet increases government expenditure of course at tax payer’s expense during an economic crisis when we are supposed to put in place austerity measures. It is rather unjustifiable in the current economic dispensation to increase government by giving a phantom credence to a body of mere unproductive advisors who do not serve any public interest purpose but are only in such an arrangement for political expediency as alluded to earlier. Furthermore there is an inevitable increase in government expenditure on illegal and unconstitutional travel, accommodation and other miscellaneous costs for ministers coming from outside Lusaka to attend Cabinet meetings which funds really should be directed resources towards demanding social sectors that will benefit the majority of Zambians.

By Chanda Nkholoma – Tembo
Lecturer at Law and Special Research Fellow, School of Law at the University of Zambia and PhD candidate (Law) at the University of Sheffield, UK, LL.B, LLM, Advocate of the High Court of Zambia