Deputy Ministers and the Minister of Gender Nkandu Luo


By Peter Sinkamba

As the Green Party, we reiterate our support for the Constitutional Court landmark decision on former Ministers to pay back to the State salaries and all other expenses they earned during their illegal stay in office. Much as the decision may appear draconian to affected former Ministers, it is our considered view that in the long run, the decision is absolutely necessary to confront executive impunity.

Who knows? Last time it is former ministers. Next time, it could be MPs, Mayors and Councillors from the ruling party who may refuse to vacate offices when parliament, and councils, are dissolved. They may argue, for example, that the constitution is wrong on dissolution because people need to be represented all the time. With executive impunity, Government of the day could continue paying them salaries up to the Election Day, thereby unduly disadvantaging opponents. We think that there is need to guard against such eventualities, remote they may appear at present, and we believe this landmark Concourt judgment could serve as a deterrent to such executive impunity.

We think that former ministers should just accept reality. They must understand that there is hardly a court decision that is always fair to both parties. Take for instance death sentence. Much as death sentence may appear fair and just to families of the victims of murder, such decisions are rarely perceived fair and just by the convicts and their families.

That said, our point of departure is on sluggishness on the part of the Concourt to resolve disputes. We think that it is fair and just to resolve cases promptly. And that is exactly what Articles 118 and 119 of the Constitution demand.

It took the Concourt four months??up to almost Election Day to render its judgment on former ministers and thereby unduly disadvantaging opposition parties’ candidates. I cannot surmise how else the injustice borne by the tax payers, and the opposition parties, can be remedied other than through the Court’s landmark decision.

Mind you, no former minister was forced to remain in office. They all had the liberty to either decline the “new appointment” or resign when court action was commenced. The fact that they continued to stay in office, and enjoy the lofty emoluments that go with those offices, implied that were doing so at their own peril.

However, the question that needs to be resolved at present is on the interpretation of the landmark decision in relation to continued stay in office by a minister after a High Court nullifies the election, and declares the seat vacant? Should that person pay back ministerial emoluments if the Concourt upholds the High Court decision? If so, when does the time starts running for paying back??is it from the time they were appointed ministers or for period they continued staying in office after the High Court decisions? This aspect needs to be clarified soonest by the Concourt in unambiguous manner.

The other aspect that needs to be clarified by the Concourt is on the time limit to resolve election disputes, both at High Court and Constitutional Court. Section 106 (10 of the Electoral Process Act of 2016 provides that an election petition shall be tried and determined by the High Court or a tribunal in open court??

(a) in the case of the election of a candidate as a Mayor, council chairperson or Councillor, within 30 days from the date of filing an election petition; and
(b) in the case of the election of a candidate as a Member of Parliament, within 90 days from the date of filing an election petition.

For Mayors, council chairpersons or Councillor, does the 30 day limit also include the appeal period? Or should the appeal period also be limited to 30 days?

In the case of MPs, should the 90 days also include the appeal period? Or should the appeal period also be limited to 90 days?
If the Presidential Petition hearing, which has no appeal, is limited to 14 days, why should the appeal period for MPs, Mayors and Councillors be indefinite after 30 and 90 days of hearings respectively?

In our view, the indefinite appeal period is certainly not desirable. There is absolutely no reasonable justification for an indefinite illegal stay in office.

And in any case, it is irrational for a court to order that the parties refund emoluments if the prolonged illegal stay in office is as a consequence of the delay on the part of the court to conclude the case.

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20 COMMENTS

  1. Concourt receives no respect from PF Government because they sold out on election petition. PF can never respect them because they know they are weak. If I sleep with a prostitute, my respect for that lady is lost. It doesn’t matter if she’s appointed as Information Minister or whatever, I just cannot respect her anymore more. If Concourt had guided the nation with impartiality at the time when they played referee, they could have earned respect from both the ruling and opposition Patrys, just like Janny the Zambian FIFA referee has earned respect at the world level. Let them have an introspection and do the right thing in future.

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  2. What can the looser offer in terms of advise. He will only complaint to suit his loosing style. Election are done and they should just wait 2021 if not 2027

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  3. Deterrent to “executive impunity” is sending the wrong signal for good governance in the country. Impunity is impunity, regardless of judicature, legislature or executive being involved. If you single out executive, then you are taking sides. You are inciting against executive. What about legislature impunity? What about judicature impunity, as we are talking now? Whether former ministers unduly disadvantaged opposition parties’ candidates or not is also ridiculous. Petty injustices are not the substance of judicature. Justice is founded on common sense, including prioritization. There is no need to take sand to the beaches or rocks to the mountains. Time for election victory is just that: victory. You lose, you win. You win, you win.

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    • Impunity is defined as freedom from punishment. The legislature makes laws. This arm of government does not punish unless one breaches the institution’s code of conduct or standing orders. For this reason, you can hardly hear of legislature impunity. The judiciary interprets laws. This arm of government does not enforce laws, including punish offenders. Since impunity is about freedom from punishment, and the executive is responsible for who to punish and who not to, it is for this reason that impunity is associated with the executive. Take for instance party cadres, some ruling party cadres do demonstrate without permits. Opposition cadres are harassed and beaten even when the have permits. This is one example of executive impunity

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  4. The jurisdiction of any judicature is predetermined by the legislature. The judicature is not above the law. Neither is the legislature above law. Neither is the executive above law. When the judicature goes without punishment despite proof of crossing the boundaries of its jurisdiction, then that is called judicature impunity. Distortions in the judicature lead to miscarriage of justice in the country. Distortions at judicature level may include corruption, bribery, nepotism, delay, excessive lenience, extreme severity, hypocrisy, deficit in integrity, incompetent, pretending, drama, trivialization, exaggeration, etc. It is inconceivable for only one arm of government to be below standard. The arms of government function as sub-systems in one system.

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    • @Dr Makasa Kasonde, agreed there could be judicial impunity and legislature impunity too, but neither of the two are are as pervasive as executive impunity. In the case of legislative impunity, I just remember one incidence in the 1990s when the late Speaker Nabulyato contempt of court when he refused to accept a High Court subpoena over legislature imprisonment of Fred Mmeembe, late Bright Mwape and late Lucy Sichone and threatened ZP officers with arrest. I cannot remember any other significant contemptuous or other serious crime committed by parliament with impunity. As for the judicial impunity, I just remember of isolated cases of judges refusing to be subjected to disciplinary charges through Chikopa Tribunal, and using the court system to quash tribunal hearings and thereby…

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  5. continued: thereby denying the public from knowing the truth of the allegations against the judges. As for executive impunity, the list is endless

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    • Chikopa Tribunal was created precisely because of perceived shortcomings in the judicature of the country. Other tribunals and commissions of inquiry were also established before the Chikopa Tribunal. This proves that the executive arm of government is responsive to public demand for a functional state. Every manifestation of impunity needs to be subjected to public scrutiny. When found to be in serious breach of public trust, lacking in integrity or too incompetent, then the logical thing to do is for the law to take its course. Options may include fines, redeployment, retirement, dismissal or imprisonment. Whether the executive is more vulnerable to impropriety than the judicature, the executive more incompetent than the legislature is subject to debate. My view is capacity building…

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  6. CONTD: Whether the executive is more vulnerable to impropriety than the judicature, the executive more incompetent than the legislature is subject to debate. My view is capacity building must cover all government organs.

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    • Those theories are not practical you dull man. Why do you want to portray intelligence and knowledge that you do not have?

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  7. This is not negotiable. Let the so called concort serve the judgements to the affected persons so they can start paying. …including Kambwili.

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  8. Hold on. There is no need for internationalization here. Certain taxpayers may feel free to approach international jurisdictions, including SADC, AU, Commonwealth of Nations, UN Human Rights Commission, and European Court of Human Rights, until any form of carelessness or irresponsible conduct is dealt with. The I-don’t-Care attitude that placed the blame on humble servants instead praising them for their dedication to duty must be stamped out from public service. It remains questionable whether circulars were distributed and then neglected. Were signatures appended to the circulars? What is clear is that a categorical position only emerged in the aftermath. For that reason, it would have been prudent to warn future humble servants to avoid falling in the same obscure trap. Where…

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  9. CONTD: It remains questionable whether circulars were distributed and then neglected. Were signatures appended to the circulars? What is clear is that a categorical position only emerged in the aftermath. For that reason, it would have been prudent to warn future humble servants to avoid falling in the same obscure trap. Where ignorance is no excuse, then failure to display public regulations for intended public becomes unlawful trapping of innocent victims.

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