SERIES 6: IMPEACHMENT MOTION – a motion which alleges that Hon. Chishimba Kambwili and others are unsuitable to hold ministerial office

By Isaac Mwanza

• 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?
• SERIES 5: IMPEACHMENT MOTION – How should voting be done on the impeachment motion?
• SERIES 6: IMPEACHMENT MOTION – a motion which alleges that Hon. Chishimba Kambwili and others are unsuitable to hold ministerial office

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.