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Monday, October 11, 2021

You cannot swear in an individual to a Ministry that doesn’t exist, It is illegal-John Sangwa

Headlines You cannot swear in an individual to a Ministry that doesn't exist,...

Constitutional lawyer, John Sangwa has said that the swearing-in of Ministers to proposed newly created or merged, or adjusted ministries that have not been approved by the National Assembly, is illegal.

Speaking to Diamond TV, Mr. Sangwa said it was a clear violation of the Constitution to swear in individuals to Ministries that have not been approved by the National Assembly.

Five Ministers who were sworn-in have been affected by the provisions of Article 92(2) (d) of the Constitution of the Republic of Zambia.

“Before the approval is given, all the President can do is to propose the creation, merging or adjustment or abolition of the Ministries.” he said before adding “The proposal by the President has to be approved by the National Assembly and when the proposal is approved, that is the only time that the Ministries can be established and Ministers can take oath and be sworn-in.”

“To resolve this illegality, he will have to start the process afresh. He has to start with the proposal to create, merge or re-align those Ministries.” Mr Sangwa said.

“The National Assembly has to consider the proposals, ratify or give approval to them. It is at that stage that designated individuals can take the oath and be sworn-in as Ministers” he said.

Mr. Sangwa said, therefore, that the oaths so far taken by the five Ministers are null and void.

“Even the oath they have taken is null and void. You cannot swear in an individual to a Ministry that doesn’t exist. It is illegal. The oath they have taken is therefore null and avoid and has no effect he said.

“The said individuals will be required to take fresh oaths after the National Assembly has approved the proposal the President to create or merge or adjust the affected ministries,” Mr Sangwa said said

The five Ministries earmarked for parliamentary approval include newly created ministries; the Ministry of Science and Technology, the Ministry of Green Economy and Environment, and the Ministry of Small and Medium Enterprises. Others that have been re-aligned are the Ministry of Information and Media and the Ministry of Infrastructure and Urban Development.

Yesterday President Hakainde Hichilema acknowledged that the new Ministries he has created or changed will require approval of the National Assembly. He has insisted that his government will follow the law as he swore to defend, uphold and protect the Constitution.

He directed that no Minister affected in these new Ministries should report for work or do any duties until the National Assembly completes the approval process. He has appealed to the Vice-President to ensure that the proposal to restructure ministries was quickly approved by Parliament. He has also sought cooperation from the National Assembly to ensure that his proposal to create and change the structures of ministries was approved.

However, Minister of Science and Technology Hon. Felix Mutati reported for work and posted that he has begun working in his newly created Ministry.

Felix Mutati in his new Office

68 COMMENTS

  1. Sata was not working under the 2016 constitution. It’s amazing that this is happening. Wht advice was rendered by the attorney general?

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  2. My view is that it seems Hichilema isn’t consulting the various institutions that support the Presidency and in this case the Attorney General. Soon his actions will be challenged in court. Situmbeko Musokotwane is still illegally in office because he hasn’t taken a fresh oath. DCs have been sent on forced leave, obviously to prepare for their wholesale dismissal. I’ve no doubt that it’ll end up in tears soon. He’s not taking us anywhere

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  3. His people fear him, so they can’t dare advise him. Are you telling me, all the people surrounding him do not know this?

    What would be the point of debating new ministries in parliament, if ministers have already been appointed and sworn in?

    He said he would he would raise the standards of the presidency, I am not seeing that.

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  4. Lungu never handed over power but those that are talking today we’re very quite then. Lungu did a number of things with the not the best intentions and not aligned with Constitution. The president intentions were positive and he wanted to have his full cabinet named. Give president HH time to adjust. You have to understand that attorney general is and was a PF lawyer. He can’t fully rely on him until a new team comes in. HH has to literally clean up the entire governance system infested with PF chaps.

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  5. Rule of law Bwana HH must be served like nshima everyday- only the stew changes.Don’t be like PF monkeys in a new forest.

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  6. #7Wise Commentator..
    Where’s Lungu today? Be careful of what you say. So Lungu broke the law, let’s break the law also. Then what’s the point in voting out Lungu after all they say the devil you know is better than the angel you don’t know.

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  7. @william Banda, you claim to be different. you claim to follow the law to the latter, why then should you make reference to the late Sata who was a PF person. This is the kind of behavior some of us kept emphasizing. Do what is right. Don’t make references. so because your neighbor committed suicide should you committee murder too? Don’t be funny

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  8. HEHH should come out and explain who advised him on this…….

    This constitution is so vague that every one has their own interpretation…..

    I am sure some one in his camp will interpret this in his favour……..

    The score is

    Bally 1 : 1 Critics

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  9. For the Ministries of information and media AND infrastructure and urban development I see no major changes there unless some departments from other Ministries will be realigned to the said Ministries. Otherwise they are still the same. It is just the names that have been changed

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  10. We have always told you that this constitution is flawed ti can only survive in lawless countries like Somalia and Afghanistan and I doubt even North Korea can’t have either.

    How many times has it been violated by the so called lawyers. Clauses contradict each other.

    The legal minds in Zambia have failed us badly. We need need to invite our colonial masters to draft one.

    To much competing interest above all boastful in nature to show who is learned and not.

    Zambia Forward!

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  11. What advise was given to the President by the AG and Secretary to the Cabinet and even within UPND Alliance there are many lawyers like Jack Mwiimbu, C. Mweetwa, KBF and others. Does it mean all men and women in UPND Alliance did not read the 2016 amended constitution to advise the President. This is now providing more ammunition to the likes of Sean Enock Tembo, Rapheal Nakachinda and others to take a shot at HH. More surprisingly some MPs served from 2016 to 2021. We urge our leaders to read more and understand the constitution. I submit.

  12. #13  Madilu system

    Well said…….

    I think we need to invite constitutional lawyers from countries with a tried and tested constitution to come and advise us on this one……

    I bet LAZ is also confused…..

    We will be waisting time arguing who is right and who is wrong while other countries are moving forward…….

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  13. yet another Lacuna – so parliament should first be opened, then all manner of Appointments incl. Cabinet get approved? who approved the nominated MPs? Mr Sangwa kindly offer a way out not just criticising ad infinitum…this reminds me of the Lame-Duck-President in the States where the legislature can “undemocratically ” hinder the executive. What then can HH implement per Executive Order BEFORE the new Parliament convenes? Thought the Speaker has already sworn-in the MPs? What About the Police and Defence Forces? BOZ acting Gov?

  14. Wise commentator – Lazy Lungu was incompetent and had no leadership qualities…HH has to follow the law I have great respect for Sangwa I am afraid he is right on this one HH has had all this time he should have consulted.

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  15. Deja Vu – You say you have given up on African politics so why do you comment on every political article on LT?

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  16. Vice president Mutale Nalumango is very expèrienced in parliamentary and gobernment proceedings
    A lot of us , as Zambians, our expectation is that she offers valuable advice to the president , so that he does not find himself fighting the constitution he swore to protect
    This raises serious questions about her integrity to tell the president the truth, and speaks volumes about their relationship as president and vice preaident
    It also speaks about his character as a leader , it’s way too early for these kind of mistakes

  17. The legal team of UPND alliance failed the President on this one,UPND used to complain about arrogance of numbers in parliament by PF when passing bills. There we go again HH taking the illegality to parliament for rubberstamping using his numbers.

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  18. What is Important is the realization and acknowledgement of the mistake, which Mr. HH has done. Please allow for such mishaps early days of government, so this should NOT be a big deal. The question is whether the “old guard” PF advisors, were able to fully guide the president OR the new guys, around the president were able to advise him with proper Information. ITS HUMAN TO MAKE A MISTAKE, AND HH IS HUMAN THAT HE ACKNOWLEDGED AND HAS RETRACTED HIS DEED. Let’s move forward !!!

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  19. That is a METICULOUS way of following the constitution. Since these new METICULOUS ministries needs to start functioning immediately as can be seen, one minister is already working METICULOUSLY. On a serious note, lets give HH some time. He is still settling. HH being human, mistakes here and there are expected especially with the desire to start working to the expectation of Zambians. I like his response. He didn’t defend the error but advised the affected ministers to hold on until parliament does the needful. Let me advise all of use. Those who are anti PF stop bringing ECL in every issue and those who are anti UPND stop waiting for mistakes to comment. Zambia is our country and we should wish for the best for everyone in the presidency seat.

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  20. This is a very small matter, they will take the oath again, it is not as bad as PFs illegal accumulation of Eurobonds debts without parliament approval and defaulting on them, there is no issue here, don’t get excited, they will take the oath again, it does not require donor funding to retake the oath

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  21. John Sangwa is objective, he is not like Sean Z, I mean Sean Zero Tembo who was talking of impeachment, after getting zeros in an election where he was defeated even by rejected votes, he has lost direction

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  22. The new speaker and her deputies are all in HH’s pocket. Therefore, he does not seem to give it a damn that he creates a new ministry and without waiting for its approval by parliament swears in a minister. For HH, it is a forgone conclusion that his UPND MPs in parliament beholden to him will go ahead and rubber stamp his illegality. As for Mutati, he cannot even wait for the new ministry to be approved by officer. After having been fired by ECL and become jobless, the bozo has to be seen to be working from his office, even when he is probably spending more time on his cell phone. Mutati must be bored being at home.

  23. It’s like you appoint or promote someone to the position of Headmaster with a promise of building a school in a few months time.
    Build the school then appoint people when it’s done. From my opinion parliament is being victimised…

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  24. That is the problem of overating an individual by never leaving any room to error. I blame HH’s supporters, you modelled him to think that he’s always right. You haven’t been questioning him on anything but been singing praises that he’s very intelligent, hence never wrong and will fix everything. If your handling of issues continues from the past and into the present and future, it’s UPND that will single handedly destroy him, not the opposition. You are channeling your pride and overly ambitious excitement in the wrong direction when you can use that wisely. Not everyone who says something negative about HH is an anermy. Learn to listen and see sense from various voices of reason. We critique because we are trying to help. No one wants HH to fail because his failure is Zambia’s…

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  25. I dont think HH had any intention of disregarding the provision of the constitution. Some of these lapses indicate that the 2016 constitution needs to be reviewed to make it more progressive and to avoid openings for contradictory interpretations!! The constitution needs to be clear: “Before a president swears in ministers for his proposed new/realigned Ministries, the parliament have to first approve these new/realigned ministries” Such flaws in the constitution only causes storms in teacups !!!

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  26. Bally will fix it…kikikikikiki it turns out Zambia is now in the hands of a master chipante pante President….busy collecting donations left right and center….HH will end up as the worst Zambian President ever ….how much is a bag of cement…how much is melie meal..how much is fertilizer…what about jobs for the youths…easier said than done…I forgot where is free education

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  27. Unless otherwise. It just appears like HH has appointed people who are afraid to advise him truthfully. If any of these Brief Case or One Band Political Parties had pulled a miracle and won the 2021 Election and formed the government, I would forgive them for making this embarrassing mistake.

    UPND has been in opposition for many decades,. Parliament has a library with Books & Government Gazettes, contains all daily debates. How come no one knew this rule, especially HH’s new Attorney General. HH was giving out statements that UPND will be methodical in forming a cabinet or government. Yet, out of the so-called Intelligent Political Party, no one picked up this “Holla”. And everyone failed to exercise due diligence. This is Shambolic.

    cont..

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  28. This Interpretation is flawed. Sangwa is only putting emphasis on sequence of events. The truth is – The Constitution does not prohibit the President from appointing & swearing in Ministers in these re aligned Ministries before Parliament ratification. It is a simple question of what comes first – the egg or the chicken ?

  29. Moving forward, there should be a rule that every MP must study the Zambian Constitution. The Zambian Constitution is less than 150 Pages. MP’s must know the basics of this Supreme Document. They have the time to study this document.

    What a president does or says matters. This morning, this news has rattled Zambia’s (i) Fundamental Analysis, (ii) Technical Analysis & (iii) Relative Strength Index to (-3), (-2) and (-4), which means that confidence is being questioned by Capital Markets on the London Stock market concerning Zambia’s Rule-of-Law. The follow up will be our Sovereign Bonds losing points. Already the HH, BBC Interview knocked down points on our Sovereign Bonds, after picking up point just after HH won Elections.

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  30. Such is expected when one doesn’t consult.
    “Safunsa, anadya phula”.
    Job on training…any punishment for the abrogation?

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  31. We have an incompetent President….talk is cheap….blah blah blah blah blah,……now he’s making Lungu look like a saint…..we already seeing Trump 2024 bumper stickers here in the USA ….Biden thought being a President is a joke….blah blah blah..HH WILL END UP AS THE MOST USELESS PRESIDENT IN THE HISTORY OF PRESIDENTS….and why is he wearing surgical gloves….can someone please advise him that it’s not hygienic…he’s spreading germs….he’s supposed to wash his hands with water or sanitizer…..

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  32. The rationale behind this is very simple:
    Do the creation and the appointments in advance and save time.
    There is alot of work ahead we cannot afford to keep going back to oath and swearing nonsense.

    Parliament can do the ratifying later.

  33. All in all. HH will make mistakes and cock-up. He will blunder, and at times he will suck. Those are the pre-requisites of being a leader and he is human If he ignored the advise that was could have been given to him that is different.

    However, The President has been let down by his own people he appointed to be his “Eyes and Ears”. Unfortunately, the sword falls on him. Mistakes are always the turning point of learning in life. This is a lesson for HH and tomorrow is better day.

  34. BALLY IS HUMAN JUST LIKE ALL OF US. HE IS BOUND TO MAKE A MISTAKE IN THE PROCESS. LETS BE PATIENT AND GIVE BALLY WORKING SPACE. FORWARD ZAMBIA.

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  35. Mr. INDEPENDENT OBSERVER @31….. I work for Denmark’s Financial Regulator. After reading your comments I went and checked on Bloomberg Terminal at work. So true FA, TA & RSI have gone negative SBM Portfolio Managers to this news from our beloved nation Zambia. I guess it’s due to Risk Management. By the way, I always appreciate your objective insights on Lusakatimes and ***

  36. Talk about Sangwa, he’s a level headed person and well qualified for State Counsel standing. He make it clear from the onset that he was ready for any position in Government, so why question where he is. Secondly, KBF may equally not be interested in providing services to the people of Zambia as per say Public Office. What should objectively discussed here, is WHY IS THE PRESINDENT MAKING SUCH OBVIOUS MISTAKES. How can he be making all blunders when Constitutional Office such as the AG. Let the President consult extensively with the relevant Government organs.

  37. HH please take off your surgical gloves and get to work….are you surrounded by filthy people…is there filthy anywhere you touch….thats very rude greeting people with your gloves and it’s not hygienic

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  38. If Zambia ever needed more prayers for the head of state it is now, because we want our country to prosper. The confidence being expressed by our new leaders is not only dangerous to our country but it is also creating a dangerous precedence. It is time our leaders start listening to the citizens who voted for them. Someone whispered to me that UPND will be the easiest political party to remove from office. So ba tata ba HeHH try and think through you descisions for the sake of our great nation Zambia.

  39. Presdents must always be properly, fairly and legally advised.

    This is MacDonald Chipenzi vs John Sangwa on the 2016 constitution. It has exposed the presidential team that is living in the archaic laws If this is a country of statutes, am sure you know who is a real cadre now.

  40. There is nothing wrong in making a constitutional mistake. The president is only human. Problem is insisting to be correct when off track.
    However embarrassing the process of ministers taking oath again, it just has to be redone.
    Boma ni Boma; but Laws are Laws.

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  41. Sangwa is reading the law correctly for once. Your President should be protected from such illegalities.

  42. #51 What kind of logic is that? Breaching the consideration is treasonous. Imagine robber telling the judge this “I AM JUST HUMAN AND I CAN MAKE SIMPLE MISTAKE LIKE KILLING AND ROBBING THE GUY”

  43. 42# Currency

    Good on you for being savvy. [ Knowledge = Power + Profit ]

    The two important attributes that any professional and experienced traders want to “have”, “know”, “understand”, and “comprehend” when trading and investing are: (A) Information (B) Risk Management

    Therefore, anything that a Government Spokesperson, especially The President says matters to investors. Any country that does not respect the rule of law is considered a High Risk. Because it means a leader will advance in making decisions without respecting the Law or due process. That is why nations that are ruled by Dictators, Tyrants and Authoritarians are not fertile lands for investors.

    The President can just wake up and do whatever pops up in his head just because he is ruthless and stubborn to…

  44. Articles 94 (approval) and 95 (ratification)- the National assembly shall within 21 days approve or ratify AN APPOINTMENT or A MEASURE taken by the President. The TWO actions by the President of appointment to an office and creating or altering ministries are BOTH subject to National Assembly approval or ratification. One will follow the other. As for the taking of oath of office, there is no prescription in the law I have seen which states when a person should be sworn in. The oath of office is not what makes or unmakes an appointment. The oath prescribes how to do your duty. I am a lawyer when I qualify, but I take oath to prescribe how I will work. That is why ministers do not retake the oath when they are moved.

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  45. Lawyers have confused this country with their Jargon!
    That’s why I like Medical Practitioners. If it’s Malaria, there are no two interpretations!
    This is the reason why I support the proposal to simplify our Laws for ease of interpretation! We argue more about English words than the Weightier Matters of our Laws!

  46. flag Corruption scandals: 48 Houses Social Security Cash Luxury Presidential Jet Ambulances Fire Trucks Mukula Trees Ndola-Lusaka Rd Malawi Maizegate Fuelgate Swaziland landgate Zesco Loans Honeybee

    Sangwa is well respected so that when he speaks, people listen. HH erred and I think I will give him the benefit of doubt that he did not intend to abrogate the Constitution. He needs to read and study the Constitution so that similar stuff up does not happen again. He was under pressure to stand up his cabinet, but he took such a long time for someone to point to him what the Constitution says.
    I’m comforted by the fact he acknowledged his illegal deed and immediately corrected it… it takes a man with guts and integrity. No more stuff ups please!

  47. This business of making excuses for HH by his supporters is wrong and should come to an end. Did they give ECL any room or excuse to do wrong? None whatsoever! They condemned everything that he did, whether right or wrong. So hold HH to account by the same standards, don’t create room for HH to mess up. After all, don’t we all want a better Zambia?

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  48. We told you the man is a BANDIT & NARCIST.
    All you wanted is a man in State House who has a surname that rhymes as HAAA, HAAA & HAAA at all cost.
    He is an overrated and overpriced commodity. I am sorry this is just too early for such FAKAP. To the rest of the world that is reading this development, it is deeply embarrassing. I cannot wait to hear the question of when he will reduce fertilizer.

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  49. flag Corruption scandals: 48 Houses Social Security Cash Luxury Presidential Jet Ambulances Fire Trucks Mukula Trees Ndola-Lusaka Rd Malawi Maizegate Fuelgate Swaziland landgate Zesco Loans Honeybee

    #56 @ The Saint, you seem to make some good arguments. However, why do you think swearing in always comes after a person has been appointment? A valid appointment (emphasis ‘valid’) precedes taking of an oath. Taking an oath is pledging that you will serve the role/office according to the prescribed duties and law/constitution… thus without a legal, valid appointment, you can take oath of that office (otherwise anyone can take oath anytime), makes sense? So unfortunately these ministers will have to be sworn in again because currently they are just like you and me reciting the oath in the shower (we have not been appointed).

  50. flag Corruption scandals: 48 Houses Social Security Cash Luxury Presidential Jet Ambulances Fire Trucks Mukula Trees Ndola-Lusaka Rd Malawi Maizegate Fuelgate Swaziland landgate Zesco Loans Honeybee

    ….‘thus without a legal, valid appointment, you cannot take oath of that office…’

  51. @De javu. #53
    Sometimes you want to think with you heart. Do you want to impeach the president because he has committed treason? That is not practical, comrade. The new and tweaked ministers haven’t started work as ministries are non existent. It is a mistake that can easily be corrected by parley sanctioning the offices first then office bearers to be sworn in afresh. That’s the only practical solution.
    By the way you are also only human

  52. Are ministers’ sworn into a Ministry or into Cabinet ? I am not a laywer so l just want to understand, why when there are reshuffles, ministers’ do not take fresh oaths if office into the new ministry. Please legal minds help

  53. Please give this president ( Mabisi ) also known as Sour Milk in English. He will feel much better. HH lithole sana…

  54. Two questions come to mind
    1. Was there ill intent to undermine the constitution?
    2. Is the mistake being defended or it has been acknowledged and the right thing being done to make amends?

    Then Jesus will close the matter, those who have never made a mistake, stand up and throw. The first stone.

    Finally, this show clearly that the President needs to constitute a competent legal team to avoid these mistakes going forward. But even then, if the administration is ready to listen and make amends, I am OK with that and kudos to Sangwa and others who are serving by offering credible criticism and guidance.

    God bless Zambia.

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