Saturday, June 15, 2024

President Lungu has no power to appoint acting BoZ Governor – Sishuwa

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PRESIDENT Edgar Lungu’s appointment of Dr Francis Chipimo as acting Governor of the Bank of Zambia is not supported by law, argues University of Zambia lecturer Sishuwa Sishuwa.

Dr Sishuwa has advised Dr Chipimo, who is Bank of Zambia deputy governor for Operations, not to take up the appointment, warning that he risks being prosecuted in future because he lacks authority to exercise the functions of the governor.

Last week, President Lungu appointed Dr Chipimo to serve as acting BoZ governor, pending Christopher Mvunga’s ratification by Parliament.

On August 22, President Lungu dismissed Dr Denny Kalyalya and appointed Mvunga as BoZ governor subject to ratification by the National Assembly.

But in an interview with The Mast yesterday, Dr Sishuwa challenged State House to point to any law that empowers the President to appoint an acting central bank governor. He argued that both the Constitution of Zambia and the bank of Zambia Act do not give the President such powers.

“The office and functions of Governor of the Bank of Zambia are established by the Constitution. Article 214 (1) of the Constitution of Zambia states that ‘There shall be a Governor of the Bank of Zambia who shall be appointed by the President, subject to ratification by the National Assembly, and who shall be (a) a citizen; (b) a person who has specialised training and experience in economics, finance, accounting, banking, law or other field relevant to banking, as prescribed; and (c) a person of proven integrity’. It then states under sub-article (2) that the Governor shall be the Chairperson of the Board of Directors of the Bank. The functions of the Bank of Zambia are set out in Article 213 of the Constitution and are conferred on the Board of Directors,” Dr Sishuwa noted. “There is no provision under these Articles or any other Article of the Constitution that allows the President to appoint a person to the position of Governor on an acting basis. The question is, where did President Lungu get the power to appoint Dr Chipimo as acting central bank governor?”

He said no legislation confers power on the President to appoint any person as BoZ governor in an acting capacity.

“Other provisions relating to the appointment, functions and tenure of office of Governor of the Bank of Zambia are provided for in the Bank of Zambia Act. Section 10 of this Act provides for the appointment and functions of the Bank of Zambia Governor. It states in subsection (1) that ‘Subject to section fifteen, the President may appoint for a period not exceeding five years a person with recognised professional qualifications and experience in financial and economic matters to be Governor of the Bank and the President may re-appoint the Governor upon the expiry of the Governor’s term of office’. This section also provides that the appointment of the Governor made under it shall be subject to ratification by the National Assembly, and that the Governor shall be the Chief Executive Officer of the Bank and shall be responsible to the Board for the execution of the policy and management of the Bank. It further states that the Governor may, with the approval of the Board, delegate any of his functions or powers to a Deputy Governor, or any other staff of the Bank,” he noted.

“Section 11 provides for the position of Deputy Governor and the functions of the office. Section 12 provides for the Board of Directors in which the functions of the Bank are vested. The Board of Directors ‘may delegate to the Governor such functions as it considers necessary for the better administration of the Bank.’ What is crucial to note is that the Bank of Zambia Act does not give the President or the Board of Directors the power to transfer or delegate the functions of the Governor of the Bank of Zambia. Further, the Deputy Governor as established under section 12 is not expressly empowered to perform the functions of the Governor in the absence of the Governor or in acting capacity. Please ask State House to cite the law that empowers the President to appoint an acting central bank governor.”

Asked if President Lungu may have used powers conferred on his office by the Constitution, the UNZA researcher disagreed.

He said the executive functions of the President are stipulated in Article 92 of the Constitution, none of which gives the office the power that President Lungu invoked when appointing Dr Chipimo.

“In any case, the statutory functions Act Cap 4 of the Laws of Zambia, expressly prohibits the President from delegating or transferring statutory functions which are conferred on any person by the Constitution. Section 6 (1) (a) of the statutory functions Act provides that ‘The President shall not transfer any statutory function conferred on any person by the Constitution.’ The prohibition also applies to delegation of statutory functions which are conferred to any person by the Constitution (Section 6(2)(b)(i)). The rationale for this is to limit the powers of the President,” Dr Sishuwa said. “Zambians have elevated certain important positions and functions to the Constitution to protect them from undue and political interference by the President or the Executive. The Constitution sets out the qualifications of the person to be appointed as Bank of Zambia Governor. The appointment is subject to ratification by the National Assembly which provides a mechanism for control of the executive power.”

He said being a constitutional office, the bank of Zambia Act does not envisage that the office of governor of the central bank or its functions should be performed by a presidential appointee in an acting capacity.

“This supports the intention of the Constitution in requiring that the office holder be properly scruitinised through the process of ratification by the National Assembly. A presidential appointee who is not ratified by Parliament therefore occupies the office illegally as the President has no power to transfer constitutional functions to his appointee. This is the position in which Dr Chipimo finds himself. I advise my brother to stay away from the mess created by President Lungu through the impulsive dismissal of Dr Denny Kalyalya and the failure to realise that his appointment of a new governor would not be confirmed immediately since Parliament is currently on recess,” said Dr Sishuwa.

“The President has belatedly realised the void that his hurried sacking of Kalyalya has created at the central bank and is now trying to fill it using non-existent powers. What a mess! This is why central bank governors should not be changed like underwear. Let Dr Chipimo, who I consider to be a decent man, respectfully decline the appointment. This is because he risks being prosecuted in future as he lacks authority to exercise the functions of the Bank of Zambia governor since his appointment is not supported by law. An acting appointee is vulnerable to control and direction of the President, as he is holding office on a temporary basis, lacks a legal mandate, and serves at the mercy of the President. This is exactly what the Constitution sought to prevent by institutionalising the procedures relating to the appointment of Governor of the Bank of Zambia. Dr Chipimo is young and has a long life ahead of him. Let him not get caught up in this web”, he advised.

34 COMMENTS

  1. Sishuwa is using wrong copy of constitution, Ba Edgar uses the People Driven Constitution of 2016 signed in Heroes Disaster Stadium. It is a good constitution, despite its few spellings.
    There are 3 copies of constitution in Zambia, Bill 10 is fourth is also a constitution on its own. So which copy is Silishuwa is using?

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  2. There should have been a post for minister for construction, that is what lungu needed to be. That is all, only incharge of construction. Nothing to do with finance. Just give him the project to build.

    That is all lungu seems good at. Commissioning buildings.

    He does not know anything else as evidenced by the economy.

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  3. Oh eff off iwe shishupu. Why don’t you do us a favour and lick denny’s testicles quietly. There is an acting sheriff in town. Get used to it. You want to open that your smelly mouth just because you can. If any organisation loses its manager do they just continue without having acting leadership in place ? Don’t be a dlck

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  4. Me I do not understand these self-proclaimed critics whose everyday job is to look at something anti-Edgar or anti-government to criticize. So, why doesn’t Sishuwa seek Judicial Review if the President abrogated the Law. This has been successfully done against this President before.

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  5. Spaka
    I agree,the man is always out of State House commissioning projects,is that surely the only job of a president?I actually forget that the man has an office at State House, imagine hos busy that office is supposed to be.Also imagine how much work must be pending. And when you think of delegating look at the quality of people who surround him so in short no work is being done

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  6. A narrowly legalistic interpretation of the constitution by one Sishuwa Sishuwa. Are you saying the office of the governor should be vacant until the new governor takes office? It is typical of opposition political party cadres that they always have to find something wrong about what those in government do.

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  7. This is an impeachable offence. It is a great pity that the man who claims to be a qualified lawyer has been the only President who has trampled the Constitution under foot carelessly over and over again. He refused to hand over power to the Speaker. He allowed ministers to remain in illegal offices. His constitutional making process borders on Mafianism. He is even trampling his own PF constitution by appointing members of the Central Committee and making himself sole candidate while expelling any potential challengers from his party. I can only conclude that we may have an impositor in State House OR the many years of Jameson have burnt the brain and liver. Ignorance of the law yachilamo.

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    • If he is trampling on his PF party’s constitution what about the intra-party elections going on in the PF. What about your UPND when did they last hold intra-party elections? I wonder if some of you people even think with your brains.

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  8. It’s not a surprise with Edgar Lungu abrogating the law and I wonder what type of a dull lawyer he is.

    His predessors used to have legal advisors. What a joker of a president.

    PF must go!

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  9. Sishuwa must remove the partisan garb from his comments otherwise they’ll be rendered as mediocre. Does he want BoZ to operate without a Head?

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  10. So, who’s supposed to appoint the Deputy Governor? Maybe I missed it, but I don’t recall seeing this specific provision in the article above

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  11. Thank you Sishuwa for a reasoned take on the matter and citing the different pieces of the law to back your position. Those who disagree with what the UNZA doc has said should feel free to do so and cite the law that supports the president’s move.

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  12. So, a question for Sishuwa – which Law under the Constitution did the President abrogate? For you to prosecute someone, he/she must have broken the Law. “But in an interview with The Mast yesterday, Dr Sishuwa challenged State House to point to any law that empowers the President to appoint an acting central bank governor”. So, similarly, point us to a Law that stops the President from appointing an acting Governor.

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  13. Problem with people who have only held first job as the only job and have not risen to any notable rank. Qualification is the only measure of substance. I’m disappointed in the caliber of educated youth these days no wisdom in their reasoning. A fatherless generation.

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  14. Dr Sishuwa Sishuwa, sir you are lecturer at University of Zambia. I don’t know what subjects you teach, but after reading this news, I couldn’t resist myself from writing this. Hope you have read the Constitution of Zambia. If you have, you must be aware of the Article 214 of The Constitution of Zambia (Amendment) Act No 2 of 2016. This Article empowers the President to Governor to Bank of Zambia. Let me reproduce the article for you. It says – “214. (1) There shall be a Governor of the Bank of Zambia who shall be appointed by the President, subject to ratification by the National Assembly, and who shall be – (a) a citizen; (b) a person who has specialised training and experience in economics, finance, accounting, banking, LAW or other field relevant to banking, as prescribed;…”…

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  15. With due respect Dr Sishuwa Sishuwa sir….. though the appointment is subject to ratification by Parliament, I would like to draw your attention to the fact that Mr. Chris Mvunga is an accomplished Professional Accountant with vast knowledge of business. He has remarkable experience of working across agencies. He has worked on important positions in local as well as multi-national companies.

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  16. Sir, according to you, a qualified Chartered Accountant, fellow of ZICA and the Association of Chartered Certified Accountants (ACCA- UK) is not qualified to function as Governor of Bank of Zambia? If not him, then who sir?

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  17. It is highly intriguing that how such learned people make such baseless statements. These statements are indication of political ambitions. And this is the irony that now, academia too, is indulging in shallow politics. This is the clear indication that Left Liberal cabal operating across the globe is spreading its tentacles in Zambia also. These people are at the forefront to launch scathing attack on hardworking politicians and leaders leading to chaos and confusion among general public. The sole objective of these people is to sabotage democracy and establish the Communist dictatorship.

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  18. Sir, you might be aware that UPND leader attacked Minister of Finance Dr. Bwalya Ng’andu over alleged failure to steer the country out of economic crisis. But did you ever say anything against the former Bank of Zambia Governor Denny Kalyalya who obstructed disbursement of over the K10 billion stimulus fund? He allowed disbursal of only K1 billion of the stimulus package. Do you think this could have ahappened in any country in the world? Mr. Hichilema conveniently remained quiet because Kalyalya his relative. But why didn’t you utter a single word against it sir?

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  19. Your grave concerned for the appointment on such a crucial post, was not at visible when Denny Kalyalya was destroying the economy and busy sabotaging the stimulus package. Isn’t it strange sir? You should have shown same concern for the country when Kalyalya was ravaging our economy.

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  20. who is the first place appointed the Bank Governor it is Edgar Lungu after Firing then Bank Governor Micheal Gondwe , if appointing of Governor by the president is unconstitution then why didn’t you say it when Gondwe was removed. The fact that Edgar had to appoint kalyalya by disappointing Gondwe is clear testimony that he has the powers to appoint unless you at it on tribal line then your arguments can be sustained other wise Sishuwa sounds very ignorant. Many people read law are sure they interpret the way it is supposed to be Parliament makes laws and the judiciary interpret the law, if sishuwa is agrieved let him challenge the decision by going to court which is a fruit less journey because there is already a precendent set by One chiluba appointing Dr Jacob mwanza ,Mwanawasa…

  21. The learned gentleman Dr Sishuwa has misdirected himself. There is a precedent; President Sata appointed Ms Chibesakunda tp act as Chief Justice

  22. People need to research and read on why Sishuwa made the statement before responding. I for one have not found any express provision in the law, Constitution or Bank of Zambia Act, that accords the President the power to appoint an ACTING GOVERNOR. He has power to appoint a Governor. The Governor, with the approval of the board can delegate his functions to the deputy. All the powers for the function and policies of the Bank lie in the board and are exercised by the Governor on their behalf. There is currently no Governor until ratification. The normal course I would have thought, while this is awaited, is to revert the powers to the Board. The fact is there is NO PROVISION for ECL to appoint an acting Governor. That’s what people here should be assessing. I don’t even find a…

  23. an appointment is an appointment which can be acting appointment or permanent appointment. do not confuse students of law. get back to language in use.

  24. an appointment is an act of assigning a job or position to an individual. the power to appoint to act or to work permanently resides in the office of the President period.in this case work has to go on with the two appointees and parliament will ratify these appointed gents if they qualify. some lecturers need to have continuous education. university of zambezi you are downgrading yourself to high school with such teachers as s.s.
    the lecturer need to get off the white knee off his neck .let him quote all the literature and convince us about his assumption.

  25. Whether the president says it or not, the Deputy is supposed take over in the absense of the principal officer. If this is silent in the constitution, then it is a lacuna for future inclusion. From what I have read there is nothing restraining the president to officially ask the deputy to start officially acting.

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  26. You miss the point. If he has no power he should not purport that he has. The Board can take over the exercise of the task – as the actions and policy of Bank are vested in it. The deputy is on the board. ECL doesn’t come into it. We seem to have been conditioned into thinking a President has omnipotent powers. That’s how create monster dictators – no questions asked

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