His Excellency President Edgar Lungu delivers his speech during the State of the Nation address at Parliament Buildings

By Isaac Mwanza

Introduction

On Sunday, 8th March, 2016, Zambia’s Minister of Justice, Given Lubinda, told journalists who gathered at the Patriotic Front Interactive Forum at Chrismar Hotel that despite the motion to impeach the President of the Republic of Zambia, having met the constitutional requirement of one-third of Member of Parliament endorsing it in order for the matter to proceed, the motion will have to meet the test of admissibility for it to be tabled for debate on the floor of the House.

Key to these rules of admissibility is whether Parliament can debate matters which are active before a court of law, whether the house can discuss, in form of a motion, a matter already decided by Parliament and, finally, a focus on people who cannot defend themselves before the House

Grounds of Impeachment

In this series, I discuss grounds 2.1.2, 2.1.2 and 2.3.1 which read as follows:

2.1 That the President conducted himself in a manner which brought the Office of the President into disrepute, ridicule and or contempt as follows:

2.1.1. By failing to curtail the indiscipline among his aides who have engaged themselves in corrupt activities and are known to be living well above their means, aside from the numerous transgressions which have lowered the esteem of the office of the President of Zambia

2.1.2 By appointing persons who are not fit to hold public office as Ministers in view of such persons refusal to comply with the lawful order of the Constitutional Court directing them to pay back emoluments unlawfully paid to them by Government between May and August 2016 following the dissolution of Parliament in the run up to the 2016 general elections. By conducting himself in such a manner, the President exercised and continues to exercise the executive authority of the State in violation of Article 2, 8(e), 91(3)(a) and (f), and 92(1) of the Constitution.

2.3 That the President engaged in acts of corruption as follows
2.3.1 By the unprecedented procurement of personal wealth and assets during the short period that he has held office as President

The Question of the Law

With regards to these grounds of impeachment, the relevant provisions of the law is the Constitution of Zambia in Articles 185. (1) (a)(b)and (c), 72. (1) and 116. (3) (c) and (e) which provide as follows:

“185. (1) (a)(b)and (c)
The President has, in accordance with and subject to the other provisions of this Constitution, the power to appoint and confirm public officers, exercise disciplinary control over public officers; and terminate the employment of a public officer.

72. (1)
A Member of Parliament shall, except the Speaker and the First Deputy Speaker, vacate the seat in the National Assembly on dissolution of Parliament.

116. (3) (c) and (e)
The office of Minister becomes vacant if in the case of a nominated Member of Parliament, the nomination is revoked; or another person assumes the office of President”

Deficiencies of grounds 2.1.2, 2.1.2 and 2.3.1

Allegations against Presidential aides

Apart from the fact that the allegation is too general as it fails to specify which one of the president’s aides is indisciplined, the ground does not specify in what way such aides are indisciplined, whether or not such indiscipline has been proven as such, and by what authority, or if such indiscipline or any action taken meet standards set in any written code of conduct so that the alleged violations are in fact defined and can be proved before a court of law or Tribunal if the alleged offender were to seek refuge in and protection from our courts. The grounds advanced by the petitioner, do not specify who among the president’s aides, engaged in corrupt activities, or what form such corruption took and, most importantly, if such corruption was proved before a court of law.

In this ground, the petitioner is asking Parliament to discuss untested and unproven allegations against unnamed aides who will not be afforded an opportunity to defend themselves on the floor of the House, contrary to the rules of the National Assembly.

The presidential aides, like any other person working in public service, are public officers whose appointment is based on the powers of the President granted to him in Article 185 of the Constitution. It is interesting that movers of the motion have elected not to cite other presidential appointees, for instance, public officers such as Permanent Secretaries by virtue of their responsibilities as Controlling Officers who have been found wanting in the Reports of the Auditor General as reported to parliament itself. Why has the motion not cited other public officers who are directly appointed by the President and have been found wanting by the Auditor-General or other oversight institutions where, as a matter of fact, the failures have been documented?

It is by asking these questions that one comes to the conclusion that the allegations against the presidential aides, unsubstantiated as they are, are in fact malicious. If the movers of the motion were genuinely concerned about indiscipline and corrupt activities among those appointed by the President, they would have, at various points, raised these matters specifically either with the President himself directly, or through the various mechanisms established for purposes of enforcing discipline among public officers, such as the Anti-Corruption Commission, the Drug Enforcement Agency or even through parliament’s own oversight Committees.

On allegations against appointment of ministers to hold office

The ground of allegation on former ministers, who most interestingly include Hon. Chishimba Kambwili the seconder of the impeachment motion, or Hon. Harry Kalaba the Member of Parliament for Bahati Constituency whose name appears on the list of the 61 MPs on the petition but did not sign, raises interesting questions.

First, does Hon. Kambwili or indeed Hon. Kalaba who may support the impeachment motion, genuinely believe they did not deserve to be reappointed as Ministers after the 2016 elections, or is Hon. Kambwili merely playing the usual politics by seconding an impeachment motion which questions his reappointment? Perhaps we missed something, has Hon. Kambwili himself repaid the money in question, as ordered by the Constitutional Court? Was he not a party to the instructions issued to the Attorney General to approach the Constitutional Court and apply for leave to ask the honourable court to review its decision?

Second, and arising from the issues above, is the President in breach of the constitution, or the law, when he allowed the Attorney General to approach the court to review its decision because such decision appears not to conform with the spirit of the constitution and can be said to be blatantly in disregard of a provision of the Constitution itself? Does the application by former Ministers to reopen and have the Constitutional Court rehear the question of payment make the President in breach of the Constitution?

The matter of ministers paying back has been challenged and is back in the Constitutional Court. The recent decision in the case of Hakainde Hichilema and 5 others v. Government of the Republic of Zambia (2017/CCZ/0006) implies the Constitutional Court can re-open and hear afresh, a matter “if there is a strong basis or convincing grounds upon which the Constitutional Court can summon its inherent powers.”

The matter of ministers paying back has been taken back to the Court by Mr. Davies Mwila, in his capacity as a former Minister who was among the ministers that were ordered to pay back the emoluments they received when they purported to remain in office after the dissolution of parliament on 13t| May, 2016 until the decision of the Constitutional Court on 8th August 2016. The question on whether the Court can hear the matter afresh, is no longer moot.

This ground of impeachment is thus back in the constitutional court. However, even without the matter having been taken back to Court, there is nothing in the judgment of the Constitutional Court which stated that the President had breached the Constitution in ordering his Ministers to remain in office. The Court, in fact, did mention that the Constitution has two interpretations on the question of whether ministers were to stay in office or leave office after dissolution of Parliament, but the Court decided to go for one of those two interpretations. Notably, the court did not state or even imply that by electing one interpretation, the other interpretation was a violation of the constitution. The Court did not amend the provisions of the Constitution that allowed former ministers to stay in office as only Parliament can amend the Constitution.

CONCLUSION

The motion to impeach the President based on the re-appointment of former Ministers like Hon. Chishimba Kambwili, Hon. Harry Kalaba and others as cabinet ministers, questions the capacity of all these former ministers to hold office. Hon. Kambwili who is the seconder of the motion, in effect, is saying he is not qualified after the 2016 elections to be appointed as a minister and his appointment was a breach of the Constitution. Again, I want to say, this motion is not about the President breaching the Constitution but is one that puts on trial, every former Cabinet minister before 2016 and cabinet ministers holding office now.

The allegation against unnamed presidential aides is too general to be considered a ground for impeachment. Even if the aides were mentioned by name, the ground would not meet the admissibility test because it will be discussing unproven allegations against persons who cannot defend themselves and have never been put on trial before a competent court of law on hose allegations. Clearly, by principle of our own laws, none of those aides is guilty of any of the allegations until they are proved guilty before and by a court of law.

In a nut shell, this ground of impeachment is not only inadmissible but malicious and groundless at law.

I wait to see how Hon. Chishimba Kambwili intends to prosecute a matter in which he is himself an accused person as well as a defendant! It should make for a very interesting lesson in parliamentary democracy.

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33 COMMENTS

  1. I THINK CK NEVER READ THROUGH OR IF HE DID, THEN NEVER UNDERSTOOD THE GROUNDS FOR IMPEACHMENT BEING ADVANCED BY UPND….IF YOU WANT TO HIDE ANYTHING FROM AN AFRICAN PUT IT IN WRITING…THIS WHAT THE UPND DID TO CK…THEY TOOK ADVANTAGE OF HIS CURRENT PREDICAMENT.

    HE IS MERELY BEING USED, AND AM PRETTY SURE UPND IS LAUGHING AT HIM….THE SOONER HE REALISE THAT THE BETTER. NEVER TRUST A BITTER MAN !!!

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  2. Bla bla bla more crap from a PF cader ……..the nation demands those ministers pay back those illigal salarires …..that is typical of this lungu crook GRZ , always operating in Gray areas or inventing alternative facts and interpretations of the constitution to cover theft…

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    • As a crook you can interprate the constitution to cover your looting as is the case above or you can interprate the constitution for the benefit of the country not individual pockets…..on MPs not drawing salarires when parliament is dissolved , is for the benefit of free and fair democracy as opposed to them being paid to effectively campain and disadvantage others…..this is clearly a case of interpreting the constitution to cover looting and to benefit individuals….

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    • UPND MPs this is a rehearsal of what the speaker will tell you. Get ready. It will be embarrassing and questioning the state of your faculties.

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    • Be serious with your bitterness, hate,o luck of reasoning. I hate *****s who olwez reasons like hh kachema, impeachment malabishi only exist in the heads of those who have failed to accept that hh kachema, he will never never be in State House.Why is he trying to bring up monkey tricks everytime since his defeats?

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  3. “In a nut shell, this ground of impeachment is not only inadmissible but malicious and groundless at law.”

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  4. Why waste time reading this by this Issac Mwanza (Yali) so far he has only agreed to one out six.

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    • Alternative reading of the constitution to cover looting, corruption and restrictive democracy……

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  5. Surely UPND want to humiliate our NDC consultant. May this motion be burried and thanks for showing us light Lusaka Times. UPND is selfishly capitalising on fact its providing us with Keith so Kambwili cannot object to being humiliated by this useless ground. I support impeachment but not on foolish grounds

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  6. The movers of the motion must be knocking at the knees with embarrassment and shame at their own idiocy.

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  7. UPND blindness as a result of emotionalism and refusing to make sense of simple facts is what sets apart them from other open minded Zambians. to them issues are intertwined with hate, bitterness and tribalism. If you don’t share their sentiments you are considered an enemy. Actually they would be at home with a one party state. How can one trust such thinking, evident even in the absence of power?

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  8. CLEARLY THIS MOTION IS AN EMBARRASMENT TO KAMBWILI AND ALL THOSE FORMER MINISTERS THAT WERE REAPPPOINTED RO SERVE BECAUSE IT CHALLENGES THEM. ONLY MPS WHO ARE DUNDERHEADS CAN SUPPORT AND VOTE IN FAVOUR. IT WILL COME TO BITE THEM ONE DAY. HAKAINDE APPEAR GOOD TO THEM NOW BUT THE MAN BURNS WITH ANGER INSIDE HIM.

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    • Kambwili is in awkward position because he now relies on the UPND to meet Mr. Keith legal bills. So everything UPND says on the motion he has to support without question or loss out on Keith representation. He has thrown away common sense on this motion in favour of pleasing UPND. So I ask what kind of President he would make if elected into office.

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  9. ECL did not defend the on constitution by asking his ministers to stay on and loot the Goverment coffer

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  10. The PF paid trols are all in support of this alternative interpretation of the constitution to cover looting and mismangment of the economy…..

    A sane person with the interests of the future of Zambia , not lungu, would interprate the constitution differently.
    The the main difference is one is for the future of our country while the other is to benefit and cover lungu….

    Take paying ministers after parliament is dissolved…..this sets a bad president for future of free and fair democracy as those ministers are effectively campaigning using tax payers monies …

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    • Spaka under5 what is your point. Argue with facts or at least quote something from the constitution. Its a big book to gail to come up with just one reg.

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    • The PF rats trying to hide their looting and stealing using alternative interpretations of the constitution as usual…..no surprises there with these theives…

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  11. As I see it, UPND members and supporters don’t use their brains to think but use tribe. This disease they suffer from is highly contagious that people like Kambwili and all those who get to associate with them get infected.

    In their hatred against Amos Chanda, Kaizer Zulu and Edgar Lungu, they came up with those grounds. Kambwili and Kalaba have unfortunately been infected. Thanks to people who are objective. I love this article and keep them coming

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  12. This was indeed bad presidency portrayed by PF. The president himself was a lawmaker and I believe is well vested layer. What went on was wrong for him to allow his cabinet ministers to show their ignorance when in the past no minister would use the ministerial office when it came to an end.

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  13. The impeachment motion will be debated in Parliament, and all the grounds in the motion will be tested accordingly. When one reads the 2016 constitution together with the motion, its clear President Lungu has violated the constitution and therefore should be held accountable. The PF should defeat the motion on the floor of Parliament by debating against the motion. The UPND should also be ready to table impeachment motions continuously so that President Lungu is put in check and does not think Zambia is his alone. Corruption in Zambia has reached alarming levels because we have a Head of State who condones it and the impeachment motion whether it succeeds or not, a record of the President’s transgressions will remain for use.

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    • Zambian system of governance is different from south Africa in case you’re basing your unfounded debate from there. Our system elects the president through the general election by way of a secret ballot while in sa stooges choose a president from parliament and that is why you see a president in parliament debating not in Zambia. If you read the above article you wouldn’t have commented like that maybe you failed to understand it being an under5 as usual.

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  14. Awe sure BINGIZA(cow dung kambwili) is really dull, if he supports that his appointment was wrong because he does not qualify to be a minister then he cant come back and campaign to be president, there is no way you can fail grade 7 and be allowed to write grade 9 exams, that doe not make sense unless illegal moves occur

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  15. When PF comes back with retaliation, I doubt if HH is standing in 2021. The motion is coming in next parliarment seating to limit the term of opposition party presidents just as it is with republican president. Wapya baisa!!!!!
    Can you scoop fire on your laps without being burnt?

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  16. HH Oval Head,
    Your clowning stupidity is wholly gutless you maddening tool. If I had the lethal nerve agent polonium 210 or indeed novichok, I would shove one up your backside where it’s ever dark and the other down your throat to teach you a lesson, wabe tole palinso wembushi iwe!

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