Statement on the appointment of opposition members of parliament to the executive

ANNEXURE ‘B’ TO PETITION

[By Brig Gen Godfrey Miyanda – 19th August 2015]

The recent blanket declaration by Mr Amos Chanda, the Special Assistant to the President that the President has power to appoint anyone without consulting anyone is misplaced, uninformed and certainly not the holistic appreciation of the Zambian Constitution and other laws. Such appointments of opposition Members of Parliament (as Cabinet Ministers and Deputy Ministers) offend the solemn provisions in our Constitution that guide the Executive in the democratic management of our country.

Such appointments add no value to the clear and bold democratic principles embedded in the Constitution but instead are an affront not only to those principles and guidelines, but also to the moral law and the decency anticipated and expected in the execution of statecraft.

Other than “beefing up” PF numbers in Parliament there is no justifiable reason for this condemnable and retrogressive action whose obvious purpose is to subvert our adopted and accepted democratic tenets that followed the re-introduction of the Multi-Party (many parties) system of government.

One of our Founding Fathers, Dr Kenneth Kaunda, in his sincere way, attempted to “kill” the opposition by introducing the “One Party Participatory Democracy” and succeeded momentarily; in the long run that action brought not only a disruption of normal political life but unbridled violence and its offshoot of perpetual hatred. It is timely to remember other Founding Fathers such as Harry Mwaanga Nkumbula, Simon Mwansa Kapwepwe, Nalumino Mundia, Zilole Mumba, Zenia Ndhlovu, Dona (Mama) Mumba of Petauke and many more of our heroes and heroines who fell foul of human ingenuity in perpetuating self-preservation (not forgetting the Third Term Bid in the recent past). We must not go down that path, not ever again. We must be wary of carelessly and conveniently fixing and interpreting Court judgements; it is worth remembering that it is a Court judgement that entrenched the despicable “One Party Participatory Democracy”!

Granted, that State House comments were based on the Judgement of the High Court, per His Lordship Judge Chalwe Muchenga. However it is important to point out that ordinarily judges make their decisions based on the case before them as well as the arguments presented and the legal authorities cited and relied on. It would be out of character for any judge to rule on something that was not presented to him/her and argued before them.

Article 46 (1) states that “There shall be such Ministers as may be appointed by the President”. It is contended that, standing alone, this Article is obviously a discretionary power that can be challenged on grounds of capriciousness and/or bad faith, which arguments we have not heard of. Additionally another aspect that speaks loudly against “executive poaching” of opposition MPs is the issue of public policy. It is contended that currently, under the much-maligned Republican Constitution, public policy is that throughout the tenure following an election, the Government must consist of the Executive appointed from the Ruling Party as well as separate and distinct Opposition Members of Parliament, to provide checks and balances in order to preserve the concept of multi-party democracy.

There is no point in boasting about the multi-party system when the President, who is the President of one of the political parties, can willy-nilly destabilise and dismantle opposition parties by the deceptive ingenuity of “official or legalised poaching”.

Surely the President must be aware of Section 9 of the Parliamentary and Ministerial Code of Conduct Act which, quoted in full, reads “A person holding Ministerial office shall not do anything that is inconsistent with the principle of the collective responsibility of Ministers for the policy of the Government and the conduct of its affairs, and in particular shall not –

1. Publicly contradict or disassociate himself from any policy adopted by Cabinet;
2. Issue public statements criticising another person holding Ministerial office; or
3. Make unauthorised disclosures of Cabinet discussions, decisions or documents”.

This provision derives its force from Article 52 of the Constitution. Thus an opposition MP appointed to Cabinet or the Executive is bound by collective responsibility; in other words such an appointee cannot speak for nor vote for his party while he remains appointed. What cannot be clear about this situation? Such a person has definitely crossed the floor. To cross the floor connotes changing one’s position vis-a-vis your political party by being a mere passenger while being an active advocate for the President and his Ruling Party!

Clearly our Constitution and other laws are NOT silent. A person so appointed CANNOT speak for nor represent his political party. Why must this trick not be deemed to be a Crossing of the Floor? Further the Preamble of the Constitution declares solemnly about our unity and oneness, as in this quote, inter alia “We the people….RESOLVE to uphold the values of democracy, transparency, accountability and good governance; AND FURTHER RESOLVE that Zambia shall forever remain a unitary, indivisible, MULTI-PARTY and democratic sovereign state”. Article 1 (1) rubs it in with these clear words “Zambia is a unitary, indivisible, MULTI-PARTY and democratic sovereign state”. More ominously, perhaps, Article 1 (4) declares and warns “This Constitution SHALL BIND all persons in the Republic of Zambia and all Legislative, Executive and Judicial organs of the State at all levels”. Why do Zambians sing and shout about a new Constitution when they accept the existing Constitution to be relegated to the rubbish dump with impunity?

The President is under oath to protect and defend our Constitution. If the President is serious about his clarion call of unity then he must revisit and abandon this practice which has not added value to his call for unity.

GODFREY MIYANDA,
BRIGADIER GENERAL,
HERITAGE PARTY
[19TH AUGUST 2015]