- SERIES 1: IMPEACHMENT MOTION: President Lungu To Be Impeached For Debt Which Parliament Approved
- SERIES 2: IMPEACHMENT MOTION – Did Government break financial regulations and the law on the monies from Mukula logs?
- SERIES 3: IMPEACHMENT MOTION – Is The Frustrated Fire Tender Petition a Basis for Members of Parliament to impeach the President?
- SERIES 4: IMPEACHMENT MOTION – Is UPND turning Parliament into a Court to hear same matters that are before the Constitutional Court?
By Isaac Mwanza
In the last three series of this analysis of the grounds tendered by opposition United Party for National Development (UPND) Member of Parliament for Mazabuka Constituency, Hon. Garry Nkombo’s motion to impeach the President of the Republic of Zambia, I discussed the debt contraction ground and how Members of Parliament will have to address their minds to the question of whether the debt in question, was arbitrarily contracted by the President without the approval of Parliament, and was therefore unlawfully contracted, or if it was contracted outside the parameters set in our constitution and our laws. I also suggested, in my presentation, that perhaps there was a need to call upon our honourable Members of Parliameenton to develop an appreciation of Section 25 of the Public Finance Act, as well as other, related legislation, in determining whether it is illegal for government to deposit public funds in a working Account which point, it would appear, the petitioners have advanced as grounds for removing them President from office.
In series 3, the discussion focused on the generality of the allegations against the President with regard to the procurement of the 42 fire tenders or fire engines, and how there can be no case if Cabinet’s approval did not go beyond the usual decision authorising the Minister of Local Government to work with the ministry of finance in facilitating the procurement of fire tenders. I argued that an attempt to make the President culpable for matters which, by law, are the responsibility of specific Ministries and which therefore are completely outside the President’s purview, is quite absurd.
In this series, I address the two allegations of alleged failure by the President to hand over power to the Speaker during the failed 2016 presidential petition and remarks made at Solwezi airport addressed to our Judges. It is alleged, by the petitioners, that the president addressed those remarks to judges of the Constitutional Court who, at the time, were seized with hearing a matter in which a number of registered political parties in Zambia, approached the court to determine whether or not the President Edgar Lungu, the incumbent would, under Article 106 of the Constitution, be eligible to stand for selection to the office of President of the Republic.
2.0 Analysis of Ground 1.1 – 1.3
The particulars of the allegation for impeachment of the President in ground 1.1 – 1.3 reads:
1.1 The President violated provisions of Article 104(3) of the Constitution during the period 19th August, 2016 to 5th September, 2016 when he as incumbent President and President elect, refused, failed, and/or neglected to hand over executive function to the Speaker of the National Assembly during the pendency of the Presidential Election Petition in the Constitutional Court cause number 2016/CC/0031
1.2 The President violated the provisions of Article 104(3) of the Constitution during the period 19th August, 2016 to 5th September, 2016 when he purported to exercise executive power contrary to article 104(3) aforementioned
1.3 The President violated provisions of Article 122 of the constitution on 2nd November. 2016 when he interfered with the interfered with the independence of the judiciary in a speech made upon his arrival at Solwezi Airport when he made statements directed at the Constitutional Court in relation to the matter pending before that Court (Cause Number 2017/CCZ/004) in which his eligibility to contest as presidential candidate in the 2021 elections is under consideration. During that speech the President sternly warned the court to exercise his judicial functions in a manner favourable to him failing which the country would be plunged into chaos. The public pronouncements made during that speech were made in breach of the President’s duty to protect the independence, dignity, and effectiveness of the judiciary under article 122 (4) of the Constitution.
Simply stated, the 58 opposition UPND and some Independent Members of Parliament, are stating that the President refused to hand over power to the Speaker, illegally performed the duties of the presidency and, in the last allegation, he had no right to comment on matters pertaining to the judiciary.
3.0 Origin of the allegations
3.1 Allegation of failing to hand over power by the President of Zambia
On 15th August, 2016, The Electoral Commission of Zambia declared Edgar Chagwa Lungu and his running mate, Inonge Mutukwa Wina of the Patriotic Front (PF) party as President-elect and Vice President-elect following their victory in the Presidential election held on 11th August 2016. Following this declaration, UPND losing candidates, Hakainde Hichilema and his running mate Geoffrey Bwalya Mwamba were aggrieved with the aforesaid declaration and filed an Election Petition into the Constitutional Court on Friday, 19th August, 2016 citing Edgar Chagwa Lungu, Inonge Mutukwa Wina and the ECZ as 1st, 2nd and 3rd Respondents respectively.
The allegation in grounds 1.1 – 1.2 arise from demand by Mr. Hichilema and Godfrey Bwalya Mwanza that the incumbent President who was also declared President elect after the August 11, 2016 elections should have handled over when the duo filed a petition under Article 103 of the Constitution.
3.2 Intimidation of the Court Handling the Eligibility Case?
With regards to the allegation in Ground 1.3, it is common knowledge that indeed the President passed the message to the Judiciary while at Solwezi Airport that ‘they ought to do their work, interpret the law without fear or favour and look at the best interest of this country’ not become a copycat and think they would be heroes if they plunged the country into chaos…’
4.0 The Question of the Law
4.1 On Power handover to Speaker
The relevant law on all these three grounds, without prejudice to articles cited in those grounds, are Articles 1, 2, 5, 9, 45, 46, 47, 48, 59, 50, 54, 60, 90, 91, 93, 101, 102, 103, 104, 118, 128 and 267 which form the articles under which the 2016 Election Petition was filed by Mr. Hichilema and Mwamba. However only these Articles 2(1), 2(5), 118(1) are cited below for purposes of grounds 1.1 – 1.3, which read:
1. (3) This Constitution shall bind all persons in Zambia, State organs and State institutions.
1. (5) A matter relating to this Constitution shall be heard by the Constitutional Court.
2. Every person has the right and duty to—
(a) defend this Constitution; and
(b) resist or prevent a person from overthrowing, suspending or illegally abrogating this Constitution.
118. (1) The judicial authority of the Republic derives from the people of Zambia and shall be exercised in a just manner and such exercise shall promote accountability.
Without doubt, Members of Parliament took an oath to defend the Constitution and they have every right to move a motion in Parliament under Article 108 of the Constitution if the President appears to have abrogated the Constitution. However, this right to move a motion under allegations 1.1 – 1.3 must be balanced by their duty to defend Article 1.5 to ensure that where a matter relating to the Constitution is before the Court, Parliament must not usurp the powers of the Court, purporting to exercise judicial authority and determine a matter which is before the courts.
Much as this author won’t discuss grounds 1.1 to 1.2 because the matters are before court, it will be important to state these important facts whih have already been subject to a matter that was already disposed by the Court:
The citing of the above Articles, specifically 101 and 103 in the 2016 Presidential Petition became the subject of an application for a Preliminary Issue raised by the Respondents who contended that the Petition presented by the Petitioners was scandalous and may prejudice, embarrass or delay the fair trial of the matter as the Petitioners had invoked two distinct, conflicting and mutually exclusive provisions of the Constitution, that is, Articles 101 and 103, therefore any reference to Article 103 in paragraph 30 and wherever it appeared in the Petition must be struck out.
The Respondents argued that Mr. Hichilema and Mr. Mwamba were only supposed to rely on the provisions of Article 101 in their Petition as the President-elect and his Vice had been declared winners after the first round of polls without the necessity of a re-run or indeed a second round of voting which would be the case had they had failed to garner more than 50% of the valid votes cast after the first poll on 11th August, 2016. The Respondents further argued that Article 103 only comes into play if there is a re-run or second poll.
They also argued that the only time the Constitution envisages that the President-elect is not sworn into office because of the fact that an election Petition has been filed is when the elections are won after the second round. This is because Article 105 (2) (a) of the Constitution only talks about a Petition filed under Article 103.
It would seem that because of provisions of Article 105 (2) (a), Messrs. Hichilema and Mwamba decided to cite both Articles 101 and 103 in their Petition. Suffice it to say that the Constitutional Court did not address the matter as raised by the Respondents and, most interesting, the petitioners, in their several appearances at court, did not once move the court to address and determine this or any other matter in their Petition.
The Constitutional Court, therefore, not having been so moved by the aggrieved party either to consider their grievance or to address the challenge by the Respondents in their Preliminary Issue, did not address the matter of the President ceasing to discharge the executive functions or the peaked assuming the executive functions. The court never delivered its Ruling on the Preliminary Issues raised by the Respondents and as such, the contention on whether a Petitioner of Presidential Elections can invoke both Articles 101 and 103 at the same time, or indeed whether when someone wins in the first round of polls they can be sworn into office despite the filing of an election Petition is yet to be pronounced upon by the Constitutional Court.
I would caution my readers to very carefully take due note of the wording in Article 104(3) of the Constitution in this instance, which reads,
Where an election petition is filed against the incumbent, under Article 103 (1), or an election is nullified, under Article 103(3)
(b), the Speaker shall perform the executive functions, except the power to –
(a) make an appointment; or
(b) dissolve the National Assembly.”
Article 104(3), in its wording, does not say, or even imply, that the Presidential shall “hand over power” to the Speaker, as is frequently talked about, nor does it say or imply that the Speaker shall take over power. Article 106 (2) clearly states that an incumbent’s power only ends “on the date the next President elect is sworn into office.”
There is certainly a limit to what the Speaker can do under Article 104(6). The Speaker cannot dissolve parliament, since it was dissolved and has not yet been convened. The incumbent cannot make any appointments or remove anyone from office, least of all the judges for whom he would have to appoint a Tribunal or separate tribunals to try each judge before removal; he cannot remove or appoint any constitutional office holder or undertake any action except if there was an emergency of such nature that the very existence of the State, was under threat.
Article 104(6) read together with 106(2) does not envisage the President, as incumbent, leaving office or for the Speaker to take over as Acting President; there is nothing in the constitution by which such an interpretation would even be contemplated. The president would remain in office as president, but any executive decisions during that period, would be taken by the Speaker. And as I have pointed out, the executive functions at this point, are strictly limited by the constitution and are largely ceremonial.
Fast forward, on the morning of 5th September, 2016, Mr. Hichilema and Mr. Mwamba, had their legal team led by Simeza, Sangwa and Associates, filed a petition before the Constitutional Court (under Cause Number 2016/CC/33) in which they allege the “President elect (Edgar Lungu), refused, failed, and/or neglected to hand over executive function to the Speaker of the National Assembly,” the same allegation contained in grounds 1.1 and 1.2. This matter has not been determined by the Court and is still active. As of 22nd March, 2018, the lawyers for Mr. Hichilema and Mr. Mwamba had filed the skeleton arguments on behalf of the two petitioners.
Out of respect for the Court process, I will thus not discuss the merits of the same grounds advanced to Parliament. Since the UPND now seek to turn Parliament into another court to hear the same matters which are before the courts of law, the readers may need to ask these questions:
BUT supposing, by a vote, Parliament decides the President did not breach the Constitution and the Court later decides that indeed the Constitution was breached OR the President is impeached based on grounds in allegation 1.1 and 1.2 that he breached the constitution by his failure “to hand over power to the Speaker; what if, then later, the Court says the President did not breach the Constitution, where would these two parallel decisions place the two arms of government?
This is why it will not be sound practice for Parliament to entertain a matter which is before court. Others may argue that the autonomous position of Parliament gives it the right to debate any matter but the question is whether Parliament is capable of debating by way of a motion, for example, the status of the Roan Parliamentary seat in the present circumstances – a matter which is before the courts of law.
In short, Members of Parliament are being asked to breach the Constitution which gives full judicial power to the courts to determine judicial matters by usurping that power to determine whether the constitution was breached or not.
I would take note that, unlike the Courts which interpret the law, MPs make decisions by way of a vote. This appears to be a more convenient reason why the UPND would like to run a parallel process so that MPs can vote because they will not have time to interpret the law through the same rigorous and meticulous process as the courts would.
4.2 Intimidation of the Court Handling the Eligibility Case
With regards to the allegation in Ground 1.3, it is common knowledge that the President made the following remarks at Solwezi Airport
“To my colleagues in the Judiciary, my message is just do your work, interpret the law without fear or favour and look at the best interest of this country. Don’t become a copycat and think that you are a hero if you plunge this country into chaos. I want to close by saying that those people who don’t like peace and freedom will say ‘President Lungu is intimidating the courts of law’, I am not intimidating the judiciary, I am just warning you because I have information that some of you want to be adventurous, your adventure should not plunge us into chaos please!” President Lungu exclaimed.
“In English there is a saying, to be forewarned is to be forearmed. We don’t want to plunge this country into chaos because we are trying to imitate what’s happening elsewhere. We are a beacon of peace and freedom, let us keep it that way. I was on the ballot paper as candidate and I assured you that I would protect Zambia and that I will do. God bless you.”
The Heritage Party President Mr. Godfrey Miyanda (Brig. Gen., Rtd), had in fact taken this matter to court To my mind, the President was conscious of the danger that his words might be misinterpreted to mean what was not in his mind at the time. when he said, “I am not intimidating the judiciary, I am just warning you because I have information that some of you want to be adventurous, your adventure should not plunge us into chaos please!”
I am not sure how the petitioners arrived at their conclusion that (i) by these remarks, the President’s intention was to intimidate the judges of the Constitutional Court as they pondered the question of his eligibility to sand as a Presidential candidate in 2021 and therefore, had breached the constitution by making the remarks he made as quoted above.
For any reasonable human being, if the President said, “…just do your work, interpret the law without fear or favour and look at the best interest of this country. I am not intimidating the judiciary…” Does that pattern of words amount to a breach of the constitution even if he added the words, “…I am just warning you because I have information that some of you want to be adventurous, your adventure should not plunge us into chaos please.”?
A reading of the President’s remarks under reference, would not ordinarily be construed as having been aimed at the judges of the Constitutional Court who were seized with above-mentioned matter, but at the judiciary generally. The President qualified his remark by stating, clearly, that his remarks should not be construed as being intended to intimidate our judges, but as a matter of caution in the light of events which had transpired in other jurisdictions in which the state was faced with similar challenges but in their own circumstances to which the people of Zambia might react differently and in a manner which might plunge the country into crisis.
For argument’s sake, let us assume that the last words were contemptuous against the court. In the case of Bonaventure Bweupe v. The Attorney-General, Zambia Publishing Company Ltd and Times of Zambia Ltd (1984) Z.R. 21 (H.C.), Mr. Bonaventure Bweupe was a High Court judge who delivered a ruling in a case heard in open court to the effect that UNIP special constables did not exist in law.
Reacting to that ruling, the then Minister of Home Affairs, Mr. Aaron Milner, under whose auspices the so-called special constables fell, made certain statements which were published by Zambia Daily Mail and Times of Zambia as follows.
“The Zambia Daily Mail
The Minister of Home Affairs, Mr. Aaron Milner has demanded an apology from the Lusaka Judge Mr. Justice Bonaventure Bweupe22 for saying that UNIP special constables were not recognised by the law. Mr. Milner said in Lusaka yesterday the judge was either misinformed or had not read his law volumes properly. ‘The President directed that we should form the special constabulary to help eradicate crime. Can you imagine a Head of State praising something which is illegal.’ Mr. Milner asked amid shouts of ‘Shame, shame’ from the leaders. ‘Special constables exist by law and an officer in charge of police is given authority to have, under his charge, these constables. In fact they were there even during colonial days,’ he added. The judge is learned and should know the law to give the right judgment but I am shocked to read his remarks in the press and I demand an apology from Judge Bweupe,’ he said.”
“The Times of Zambia:
The Minister has criticised Lusaka Judge Mr. Justice Bonaventure Bweupe for his ‘ignorance’ of the legality of special constables. He said the judge should have done his homework before making such a misleading statement. ‘It is unfortunate for a judge to say that the law does not recognise the existence of special constables because, under the Police Act, a police officer can appoint a special constable to help him carry out his duties,’ he said. According to chapter four, section 10 of the Police Ordinance:
‘Every special constable under this ordinance shall have the sane powers, privileges and protection and shall be liable to perform the same duties and shall be amenable to the same penalty and to be subordinate to the same authority as police officers.”
Judge Bonaventure Bweupe contended that the words spoken by the Minister and repeated by Zambia Publishing Company and Times of Zambia, were defamatory of him. The defendants argued that the words complained of amounted to fair comment, noble without malice, upon a matter of public interest, namely, a ruling delivered by Judge Bonaventure Bweupe in his capacity as a judge of the High Court.
In delivering the judgment, High Court Judge, SILUNGWE, C.J stated these following remarks which, I would contend, are applicable to the remarks made by the President:
“It seems to me that, in the circumstances of this case, Mr. Milner was exercising his genuine right of criticism and that he did so without malice or intention to impair the administration of justice, insofar as the third defendant is concerned. I agree that strong words were used but do not consider that these went beyond the defence of fair comment. This, however, should not be understood as giving a licence to a minister or other members of the public to air their criticisms against judges or other judicial officers as to do so may, in a proper case, amount to contempt of court or constitute defamation. In view of what I have said above, it follows that I would uphold the third defendant’s defence of fair comment and dismiss the action against them. In the circumstances of the case, there will be no order as to costs”.
The UPND petitioned the Constitutional Court under cause number 2016/CC/33 where they are stating the President should have handled over power when they concurrently sued under Article 103, among others, to which the Attorney-General has responded it was wrong for Mr. Hichilema and Mr. Mwamba to bring the presidential election petition under Article 103 of the Constitution as the circumstances did not arise which would have satisfied the requirements for a petition under that Article (103).
The court did not to date, and has not rendered its verdict on the matter. To the best of my knowledge, there has never been a court case where the issue of the President handing over power was decided – not during the 14 day life of the Presidential election petition and not in the case brought by Mr. Miyanda of the Heritage Party.
From the beginning of the petition, by the Respondents in the Presidential petition putting the question of Article103 before a competent court of law i.e. the Constitutional Court, in which the court was asked to make the necessary determination, it took the matter out of the President’s hands and into the hands of the court. The President was, therefore, obliged to wait for the Court’s determination of the matter, one way or the other, and was therefore right to retain the performance of the executive functions pending determination of the matter as to whether Article 103 was properly before the Court or not, as the contended by themselves through their Counsel.
In the absence of a decision by the Constitutional Court on the two contending arguments between the petitioners (Hichilema and Godfrey Bwalya Mwamba) as well as in the response rendered by the Respondents (Edgar Lungu, Inonge Wina and Attorney-General), there was no breach since the court did not render a ruling one way or the other. The question remains moot.
In the case of his remarks made in Solwezi as reproduced above, President Lungu, to borrow the words of former Chief Justice Silungwe, was exercising his genuine right of criticism and that he did so without malice or intention to impair the administration of justice. Indeed, the word “warn”, was used but it cannot be said that it went beyond the defence of fair comment. If we are realistic, in fact, the President is on record as asking Judges to guard themselves against capture. The remarks by the President are indeed not a licence for other leaders or indeed, members of the public to air their criticisms against judges or other judicial officers as to do so may, in a proper case, amount to contempt of court or constitute defamation.
The bigger question on my mind is, why would the UPND and its MPs want to turn Parliament into a court to hear the same matters contained in grounds 1.1 and 1.2 which they took to court and have been filing documents? Could it in fact be true what the President said in Solwezi, that there were people with an agenda to get his government out of power and they have found willing partners among some members of parliament of the Patriotic Front and independents?
I will leave these questions to readers to draw their own conclusions.