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Chikwanda describes Constitution Court Ruling on Ministers vacating office as Draconian

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Alexander Chikwanda
Alexander Chikwanda

The justices are rewriting the law, making a presumption on the wishes of the parliament or establishing some strange interchangeability with parliament. In my humble view, this is impropriety and illegitimacy.

The decisions of the constitutional court should be legally and morally unassailable-regrettably not so the case.

By Alexander Bwalya Chikwanda

8th December 2017

The judiciary in Zambia has been a big plus for the country and a credible institution on the wider governance horizon. The judiciary comprises of men and women who naturally have their share of human frailties so there are instances of a few rogues but very much more the exception other than the rule. It is therefore an inescapable imperative that all stakeholders in and out of the judiciary take stock and indulge in deep and honest introspection to ensure that slippages in the adminstration of justice are arrested at the earliest opportunity.

Let me, without hesitation; address the particular draconian ruling by the constitutional court on Ministers vacating office. In section 116 of the constitution of Zambia (amendment) act number 2 of 2016, the cases for office of the Ministers becoming vacant are clearly set leaving no room or leeway for speculation, supposition, inference, or indeed extrapolation.

Section 116(3) of the constitution states:

The office of the Minister becomes vacant if-

(a) the Minister is removed from the 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 office of the president;
Or
(f) the Minister has a mental or physical disability that makes the Minister incapable of performing the functions of that office

The inference that Ministers are members of parliament and when parliament is dissolved, Ministers must ipso facto vacate their offices may be not too illogical a projection but that is not stated in the pertinent section of the law which is totally without ambiguity. The justices are rewriting the law, making a presumption on the wishes of the parliament or establishing some strange interchangeability with parliament. In my humble view, this is impropriety and illegitimacy.

There are profound lessons about constitution making in Zambia. The powers that be stall when there is ample time to consult and dialogue; then with the passage of time inordinate pressures pile up and matters are rushed to parliament with rather indecent haste ending up with outcomes that constitute monstrosities in the process, not pondering the severe cost implications.

Any further amendments to the constitution should be anchored on deeper reflection apart from more honest elaborate consultation. Constitution making in Zambia from the inception, when some of us were in the unip government, has been a big disaster. There is some ingrained bad habit passed to subsequent administrations. This is that various stakeholders in the government in power, opposition political parties when they have existed, civil society and all, we have shown the inclination to write our short-term interest in the constitution. In the process, we have not come up with realistic constitutions that can stand the litmus test of time by addressing the subtle interests of generations to come, also known as posterity.

Expeditious dispensation of justice will increasingly be hampered by inadequate space and infrastructure, even at the lofty levels of high  and supreme courts. Going forward, we must pay urgent attention to remedying this situation. There will be a compelling need to avoid proliferation of courts. With hindsight, constitutional issues are a rarity; the best and most cost effective action would have been to constitute constitutional court sessions from the supreme court where you have experience, maturity and track records. We cannot ordain wisdom and requisite experience by bureaucratic fiats, no matter how elaborate myth making may be.

We need deep thinking in the nation. The justices have the highest levels of intellect shrouded in the ingrained habits to search widely so that they do not interchange facts with value judgements and opinions – this is why they are called learned. Respectability of the judiciary must be anchored on propriety and decisions which are totally above board and beyond reproach.

It is my considered hope and prayer that at all levels of justice, decisions which are emotion and sentiment- driven can be avoided for these decisions inevitably have little or no rationality content. The erosion of confidence and trust resultant from these slippages are inexorable and irreversible.

The Author is Zambia’s Former Minister of Finance, and current Chairperson for Finance Committee in the ruling PF Central Committee

88 COMMENTS

  1. Chikwanda the man who set the ball rolling on Zambia’s economic downturn and high indebtedness.You were so clueless on the economy so i also highly doubt you on this one.

    • We should avoid copying clauses from the American constitution without understanding them. Until we start originating our own constitution, problems like these will continue.

    • can someone tell this ancient Neanderthal to take his jargon ancient king James version English he has just rejugitated back and shovel it up ……,why do some people have long fingers DNA in them?just pay up iwe.

    • @Mzambia wa Zamani in fact this man was a parasite who leached off government from before independence and as part of the UNIP leadership with his doldrums in the late eighties! Who doesn’t know about how his company refurbished FTJ’s State House with a usery bill? In fact FTJ let him go as Chief of Staff. He then started feeding on the Cobra and continued to October 2016 or only until last year! He had all the tools and authority as he commanded govenment

    • Chikwanda the Dinosaur belongs in jail for indebting our beloved country twice:-

      1st time was in UNIP era, where he left us with $6 Billion debt which was only written off through HIPC.
      2nd time in PF Govt which has left us cursed with a debt of $23 Billion.

      What an evil old FA.RT.

    • I didn’t understand anything, too difficult.
      Inonge was much simple in Parliament, she said: “where is evidence of ConCourt ruling?”.

    • He has no moral right to criticize the composition, and let alone the constitution of the court because as Cabinet Minister, Minister of Finance, and MP, he played a pivotal role to create the court, nominate, ratify and appoint the judges. He also played a key role to ensure the court is financed. So, what is he talking about? Is it sour grapes? Who does he want to shift the blame to? His former Cabinet boss, President Lungu? By signing-off as PF Chairman, he wants to shift blame from PF to President Lungu? Shift blame from PF to the Presidency?…

    • It would be interesting to know how Mr Chikwanda describes receiving money (Tax payers money) by false pretence.

    • Despite being a long article it is a very dull reasoning going on here …. Chikwanda is more interested in what constitutes a minister vacating office…… I have a simple question to him that he has not addressed in the twisty and windy article. In Zambia is it ever possible to have a Minister in office that is not an MP? Nominated or voted in that is. And what does he understand by dissolution of Parliament??? So all the presidents prior to Lungu have failed to understand the constitution apparently ? Ba Chikwanda tushenifye you have too much personal wealth its pointless to cry over these Peanuts… if you are an economist worth your saute you need to be advising on matters that will benefit the larger population and not your small selfish clique of PF Glut !

    • That’s greedy Zambian Politicians for you …look at this Fossil with no shame retiring peaceful whilst we suffer..when it comes to making repayments from the own pockets; their brains start functioning looking for loop-holes, even writing articles but when it comes to spending a whooping $42 million on 42 Scania Fire Trucks at an jaw dropping $1 million each none of them see nothing wrong with ..not even one sights to reforming our Tender and Procurement procedures.

    • This chap is the Zambian Jr. Mugabe at the finance level. Rotten and expired ways of thinking and doing things. Please old man. You have damaged the economy twice in a row and you have no shame defending the wrong in public. Spare us with you legal advice and keep it to yourself or PF kaponyas. The key is Lungu is no special than prior presidents that ahered to the rule of law. As matter of fact Lungu is the worst Zambia will ever have. As soon as he lives office no body will even recognize him.

  2. Fossils talking while a lunatic is enjoying his unending air travels! No one in authority cares about Zambia any more.

  3. Interestingly, ABC is now a legal mind. It appears all of us will become good lawyers in our retirements. Law school here I come

    • He makes serious observations and so far the bloggers can only target is personality. I do not see anyone taking him on, on his arguement. I have not seen bloggers with intellectual capacity to engage anyone on an issue. What we have seen on this blog are insults and exhibition of frustrations. I missed the judgement what parts of the law did the learned judges cite. Or was it based on logic and moral law? Could Chikwanda be a better thanker than the five judges? Just asking really!

    • Amagenge

      Not no one taking him on only that him throwing around big legal words shows how ditached from the common man he is……….

    • @Amagenge
      The ministers and their president included took advantage of loophole in the in the Constitution which fed into manipulation of our tax payers money and government battery to disadvantage opposition. Nevertheless, the question is, does the gaps in our Constitution be rooms for manipulation to the extent of defeating the ethical logic? worse still from men and women of highest civil offices. I assume the bench applied moral logic; morality is above the law, where the law ends or become insufficient, molarity begins. Yes people are emotional and bitter. However it’s pf in charge of our government, and have opportunity to install fair and working systems and leave a trail of good precedence.

    • @ Abena Ng’umbo-Luapula boy —- well done muntuwandi. Straight forward and to the point. I haven’t seen anyone right more sense than this.

    • @ Amagenge …………….. I have a simple question to him that he has not addressed in the twisty and windy article. In Zambia is it ever possible to have a Minister in office that is not an MP? Nominated or voted in that is. And what does he understand by dissolution of Parliament??? ……………. Case in point the teachers government is asking to payback money for having worked illegally were deemed not to be teachers due to the fact that the lacked the qualifications …. In Zambia for one to be Minister they MUST be an MP either elected or nominated. From my simple understanding upon dissolution of Parliament all Ministers lose the one most important qualification they need to be Ministers ….. and that is being a MP. My simple layman understanding.

    • This Fossil Chikwanda should be arrested …look at the increase in misappropriation under his watch in the AG’s report!

    • Chikwanda, Msiska and Commissioner of Customs at ZRA Dingani Banda are alleged to have received bribes of close to US$ 4 million from First Quantum Minerals in order to facilitate the isuance of Statutory Instrument (SI) 89 of 2013 that suspended duty on export of raw Copper Ore. Sata used this information to reject Chikwanda’s resignation. Sata simply told him you will be arrested” the source said

  4. Think of it, a day after parliament is dissolved,
    1. How could the president declare war without his ministers?
    2. How could the president handle a monumental disaster in the country alone when parliament is no more?

    • my friend permanent secretaries and their directors are better placed to handle government business,they are the heads of these ministries/departments,there is no need for you to panick if minister of agriculture goes for shopping and posing with tyson at shopping mall in new york, It’s not the ministry of Dolly remember?why do you have chicken megabytes?

    • @abilimi a person who normally has an averse judgement on another usually fits the judgement he holds.

      Basically … you are dull Abilimi. If you had a quarter of your cranium functioning, you could have easily deduced that, failing to restrain and contain public expenditure leads to what the AG has discovered.

      But no, us Zambians you are calling dull seem to have seen this, but no, not you.

      You dull chap, you are one of a few amongst us.

    • empty Cranium – I have challenged you to cite the Constitution in responding to ABC – but NO, in your dullness you find it prudent to attack me and prove how dull you are.

    • Logic and common sense tell us so. But it’s not on paper in black and white in the Constitution. Chikwanda is right!

  5. paying ministers after parliament dissolves disadvantages the opposition as those minister were campaigning for lungu at with tax payers money……using tax payers fuel……chikwanda wants to set bad examples like lungu….

    • Well @Spaka, that is not a reason to unfaily punish the office bearer. Once that Opposition come to power, they would also enjoy the same privileges.

      The law should be based on fundamentals not innuendos. After all if an Opposition can dislodge a sitting govt enjoying such privileges, it proves the overall acceptance of such a party by the Citizens and questions of illegitimacy do not arise, just like Sata’s PF did to RB’s MMD.

    • D’Kap

      Then if people are campaigning using GRZ that is not fair on tax payers , on every other opposition party…….GRZ funds should not be used against certain groups who them selves pay tax…

    • @Spaka, Only the President and Vice are allowed to use Govt funds to campaign.

      But see my comment at 9.1 & 9.2 to understand why there is such a miss conception both by the Public and those who take up Political office.

    • D’Kap
      That is the reality…..who will stop them campaiging against other tax payers ? The corrupted ACC who take 10 years to look into a case ?

      Just keep things as they were ….no GRZ funds used to campaign after parliament.. .

    • Actually, that’s the way it is @Spaka. What you see in the Press is just speculation.

      Have you seen any Audit Querry relating to Ministers using govt funfs to campaign? Maybe they hung on to GRZ vehicles, which is easy for you to do a Citizen’s arrest if you see the vehicle in a campaign convoy or something.

      What I would advocate is:
      1. No inspection of govt projects during campaign period, except emegiencies
      2. All Ministers be given leave to go and Campaign, and reduce Cabinet meetings to once a mth not weekly
      3. They hand in GRZ branded vehicles
      4. Those using GRZ property be reported with pictoral evidence to ECZ and be removed from the ballot immediately

      You can add more if you like

  6. How can this old man pick one piece of the constitution in isolation to console himself! All other articles work together in legal issues and therefore must all be considered starting from the definition of a Minister as an MP. So if there are no MPs, there cannot be a Minister. From where?

    • @ Maiduguri, the fact that an office is created one way doesn’t always mean it ends the same way.

      While Ministers are appointed from Parliament it doesn’t mean they operate one office. The two offices are different and seperate with clearly distinct roles.

      This failure to understand this distinction is what leads to many Politicians failing to distingiush the Party from the Govt. Such that even in Parliament they vote along party lines instead of with their concience. There should be nothing wrong with an MP who is a Minister voting against a govt motion if he believes it is not in the interest of his Constituents and the nation at large, and this should not put his Ministerial appointment in Jeopardy.

      A minister who visits his constituency is not allowed to use “executive…

    • A minister who visits his constituency is not allowed to use “executive govt” funds, but his “Parliamentary Allowances”. Yet all we see is that the Minister is visiting his Constituency, WRONG..!

      So while the office of Minister is created from Parliament, it assumes a seperate life from Parliament and its ceasation is different. Just like you were born from your Mother, but when your Mother dies you continue, until your appointed time and way of exiting arrives.

    • D’Kap

      “It should be but is not ”

      That is lungus corruption, everything that should be is not…… we have PF campaigning in the heat of campains using GRZ funds against other tax payers

  7. ABC is conflicted as he was one of the Ministers who benefited from the illegal stay in office. The Law and the Concourt Judgment are very clear. ABC and fellow Ministers used State Resources to campaign for their Party and themselves and should have been disqualified as MPS. It’s just that they are protected by their Boss but what they did is illegal. ABC should just payback the money to Treasury instead of waffling. ABC is a culprit and has no moral authority to critique Concourt ‘s Judgment on this one. When the UPND Petition was filed with Concourt Lungu refused to resign and handover Power to the Speaker. Lungu abrogated our Constitution so why is ABC not commenting on this abrogation? ABC should just pay up while enjoying the stolen wealth.

    • @Zulu,
      1. Have you read the Constitution?
      2. Does it say anything about stepping down when the petition is as per article 101(Initial ballot)?
      3. Does article 104 make reference to article 101 or 103(second ballot)?
      4. Does article 103 affect article 101?

      If you answer these questiins, you’ll be more enlightened than the UPND legal team & LAZ.

    • At D’kap at the end of the day its not about what anyone of us thinks the learned people have made their judgement somehow people on this forum think they can quote a few articles from the constitution and believe they have a better argument than the bench. Really laughable ! So why didnt Chikwanda decide to defend himself if he is so learned in the law to start with they were not even meant to use the attorney general in defending them an issue he hasnt raised in his shallow argument….. Really annoyed with this fossil please also pay us for the time used in defending you by our attorney general

  8. The old man has alot of experience in government.The issues he has raised are real.
    Unfortunately,we are so ignorant of the law and yet call ourselves ‘citizens’.
    Insulting elders is a typical UPND style of politicking.
    My advice is that we should all own a copy of the constitution and read it regularly.
    Otherwise,keep quiet.
    By the way,the idea put forward by old man that we could cut costs if we used justices at the higher courts who have more experience to constitute the concourt when need arises is very attractive.

    • Beyond Reproach – Notice that all those insulting ABC have not cited the Constitution — which ABC has done. That is the calibre of the opposition in Zambia.

    • @ Abilimi Notice that we are saying where the constitution is muddled morality prevail. The judges who are the legal mind in matters of constitutional law have had a say. Who is chikwanda and yourself to critique the supreme decision made?

      Gentlemen, this is not animal farm.

      Notice how your thinking can translate into stup1dity. I wouldn’t be surprised if you are one of the idi.ots behind the fire tracks.

    • bachikwanda – You are failing to cite any piece of legislation to counter ABC but still want to put up an argument – there are many definitions of dullness…….

  9. All comments supporting the ConCourt ruling have not quoted any clause in the constitution to supper their thinking.
    In this case, Chikwanda seems to have a point. After all these Ministers were working. Who works for nothing in this world?
    This ConCourt looks like a failed project in Zambia

    • They were using emotions and wanted to make a name, swayed mainly by the UPND legal team quouting draft constitutions instead of the real thing…

  10. A blogger on LT described Chikwanda as a fossil and you can see why. He has reappeared from his hibernation to issue statements on behalf of Lungu. He has found it hard to shut up. Soon he will get GRZ tenders as a THANK YOU.

  11. @Zulu,
    1. Have you read the Constitution?
    2. Does it say anything about stepping down when the petition is as per article 101(Initial ballot)?
    3. Does article 104 make reference to article 101 or 103(second ballot)?
    4. Does article 103 affect article 101?

    If you answer these questiins, you’ll be more enlightened than the UPND legal team & LAZ.

  12. He is a Zambia Citizen, and therefore has a right to criticize any Court judgment. However, he was economical with the truth. Instead of ending the sign-off as Former Minister and PF Chairman, he should have included as affected litigant. He has no moral right to criticize the composition, and let alone the constitution of the court because as Cabinet Minister, Minister of Finance, and MP, he played a pivotal role to create the court, nominate, ratify and appoint the judges. He also played a key role to ensure the court is financed. So, what is he talking about? Is it sour grapes? Who does he want to shift the blame to? His former Cabinet boss, President Lungu? By signing-off as PF Chairman, he wants to shift blame from PF to President Lungu? Shift blame from PF to the Presidency?…

  13. I must say ABD is solid in his thinking. Sad that this caliber is slowly but surely diminishing in Zambia.

  14. what doubts? DO YOU NEED FURTHER TRANSLATION? This is a simple point, albeit personal, on Ministers vacating office. And that the learned men and women of the bench should be above board when delivering justice rather than judge with emotion or sentiment!!! This is a cardinal observation and requires an intelligent debate but that would be asking too much for the kind of bloggers we have. We need to put aside personalities and look at issues soberly…

  15. Call him what you want, but I think he has a point and he has made it clearly and plainly. Those calling him names just make your point or counter his position. This hurriedly assembled constitution has a lot of crazy things in it and surely, the constitution court should be headed by the most senior and experienced judges in the land. What is wrong with suggesting that?

    • @ Njimbu… Correct me if am wrong, what point is the learned man trying to articulate?

      No need for superfluous words and at times going straight to the point is good.

      What am understanding from this article is that ministers who got the money were morally paid right?

      As @ Abena Ng’umbo-Luapula boy correctly said… where the constitution or the law obfuscates or is muddled, morality takes hold and is vested and pioneered by the judges given the duty to execute the law. Morality is truelly above the law!

      ABC with all due respect, move! get out of the way! You had your chance, can we rule please?

      You guys had your time and we are trying to get away from what brought us in the situation we are now. You should be ashamed of yourselves, I would!

  16. Congrats D’Kap.your comments are above board!!you are a very wise person UNLIKE THE SPAKAS FROM UPND WHO ONLY COMMENT FROM THE TONGA POINT OF VIEW!!!
    Hon.Chikwanda has raised valid points.its a pity many Zambians do not understand our constitution,even some judges at Concourt dont!!!UPND FOLLOWERS ARE THE MAJOR CULPRITS AS THEY BEHAVE AS IF THEY HAVE NEVER GONE THROUGH OUR CONSTITUTION!!
    President Edgar Lungu should instruct Hon.Given Lubinda to take the current constitution to parliament for amendments urgently because we cant continue with such a confusing document!!!ALL ARTICLES IN IT MUST BE MADE SIMPLE FOR EVERY ZAMBIAN TO UNDERSTAND!!!
    otherwise,well said Hon.Chikwanda!!
    NJIMBU BB 2017!!

  17. When you disolve parliament, there is no parliamemt and therefore by definition there are no ministers or opposition and if there is no parliament then no president,
    All parties are now vying for majority vote to form government, tomappoint ministers and have a president.
    If the constitution said that the speaker holds the power of the president when parliament is dissolved, then that is the law. Concourt and judges administer tbe laws as presented to them by government tbey do not make law per se but their decisions can be and are used as precedence. This press release is to sensitize the public to proposed changes to the Constitution…wait and see

  18. I like the way you have put it. When ministers are picked from Parliament does not imply that they should vacate office when parliament is no more. If this was the case, The ministers would have been going on break each time parliament went on recess but it is not the case. Sometimes one needs to think deeply and analyse properly to avoid setting poor or bad examples like the case in question.

  19. The fact that the constitution court found that ministers were not suppose to occupy office when parliament was dissolved and that these ministers continued to receive tax payers money and continued to use government machinery is reason enough that the opposition UPND party was disadvantaged when it came to electoral campaigns.
    On this same ruling of the concourt, the results of the presidential elections and the parliamentary election results for ministers who continued to stay in office would have been nullied.

    Now concourt is a comedy, a circus in itself, it keeps on contradicting in itself.

    My appeal to all those aspiring opposition MPs who lost elections to these ministers who must pay back money that they illegally received while in office when parliament was dissolved this…

  20. @19.1NSCS. these guys have no shame, they’re rusted with corruption and won’t fall short to justify their deeds. The whole ABC justifying illegal occupation of public office for salary gains. what a waste!
    indeed these guys should step aside.

  21. Can the great President General Miyanda respond to this please. In a well versed article. Like today while Chikwanda Dr.’s article is still fresh.

    • typo dear typo,inglesi not my mother language anyway. what do say in your mother tongue someone throwing up what they just ate?

  22. Mr Chikwanda is misleading himself and the public on this one. In any job (be it in politics or in the real corporate world), there is always a question of ‘eligibility’ and ‘qualification’. Before you are even considered for a graceful or honorable discharge, you got to meet or satisfy basic requirements of eligibility and qualifications. If you don’t qualify for a job you are considered ineligible and therefore you are automatically or dismissed without any recourse. The buzz word to underline here is ‘automatic’. If you are ineligible you are not even considered for a graceful or honorable process for dismissal.
    The vacancy argument for an office of a minister that Mr Chikwanda has advanced refers to a minister…

  23. continued…
    The vacancy argument for an office of a minister that Mr Chikwanda has advanced refers to a minister holding the office legally (i.e. one who meets the qualification and eligibility criteria). You may have been appointed to a position correctly and legally but the moment you are found ineligible, you are dismissed instantly and your only recourse is the court of law, which in this case has validated that you occupied the office illegally. That clause refers to a minister who is eligible and qualifies to be a minister and has maintained that eligibility and qualification throughout the life of parliament.
    Now the basic qualification and eligibility of a minister in Zambia is that one has to be a Member of Parliament (MP). As soon as one ceases to be an MP, he/she…

  24. continuedautomatically ceases to be a minister. A person ceases to be an MP when parliament is resolved. This is why when an MP is expelled from a political party, they cease to be an MP and they automatically ceases to be a minister (if they were a minister). They simply can’t be a minister if they are not an MP at the same time. In other words, a person can be an MP and without being a minister; but a person cannot be a minister without being an MP. It is straight forward and there is no ‘interference’ whatsoever.
    Chikwanda himself may have contributed to this problem but throwing out a clause that required ministers to be appointed outside of Parliament. As long as ministers continue to be appointed from among the MPs,…

  25. <continued</em…
    As long as ministers continue to be appointed from among the MPs, they will automatically cease to be ministers when they stop being MPs. So Mr Chikwanda you can’t argue this issue in isolation of the clause that defines the qualifications or eligibility of a minister.
    Right now in Australia they have a constitutional crises where a number of their members of parliament are being found to be ineligible to hold the office because they being found to be dual citizens. Their constitution says you can only be an MP if you are not a dual citizenship or you have renounced the other citizenship. They automatically cease to be MP, and they also automatically cease to be ministers… no argument of how the constitution protects them from being dismissed as ministers… this a…

  26. <continued…

    They automatically cease to be MP, and they also automatically cease to be ministers… no argument of how the constitution protects them from being dismissed as ministers… this is a classic example of the Zambian situation.

  27. Mr.Chikwanda that may not be stated in this particular clause, but is categorically stated elswehere that MPs cease being MPs upon dissolution of Parliament and since once needs to be an MP before becoming a minister it is, therefore, illogical that one would still remain a minister. Read other sections of the constitution too, not only those that support your point of view!

  28. If this is manifestation of dementia in Mr Chikwanda’s well being, treatment will help the old man.
    If not quickly admitted into hospital hallucinations will continue mixed with feelings of relevance today when he has left debts for his children, grand children, great grand children and Zambia’s worst financial burden of all times.

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