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Alba Iulia
Thursday, September 16, 2021

Appointment of Ministers before commencement of Parliament is a breach of Constitution – ConCourt told

General News Appointment of Ministers before commencement of Parliament is a breach of Constitution...

The Constitution of Zambia does not allow for appointment nor occupation of office of Minister or Provincial Minister after Parliament dissolves and has not yet commenced, the Constitutional Court has been told in a written submission filed on Tuesday.

And Mr Mwanza has told the Constitutional Court that the idea that public officers hold their appointments at the pleasure of the President or appointing authority who can dismiss them at will has no place under Zambia’s new constitutional regime.

In making arguments in case where he has sued the Attorney General over the recent appointments of Ministers, Provincial ministers and dismissals of public officers, Mr Mwanza has told the Court that the life of the National Assembly of Zambia commences when the candidates elected to the office of Member of Parliament are sworn into office and ends upon dissolution of the National Assembly.

“This Court affirmed that the position of Ministers was tied to the life of Parliament and that no minister can occupy the office of minister during the period when the National Assembly stood dissolved,” the Court heard.

And Mr Mwanza has maintained that a Minister can only perform the functions as a Minister when both parliamentary and ministerial oaths are taken before the carrying out the duties of office. He said such a constitutional requirement cannot be waived or modified by any inferior statute or executive power as the Constitution binds all institutions.

He has also submitted that a person appointed to a nonexistent Ministry and or Ministry which has been merged but yet been approved by Parliament not cannot perform constitutional or statutory functions.

He argued that a person intended to be appointed to a new office of minister cannot be sworn in and perform the functions of a Minister for a Ministry that ha has not yet come into existence.

But Mr Mwanza has said a person nominated to Parliament can be sworn in as Minister but cannot perform the functions of a Minister until such a nominated person takes an Oath as Member of Parliament.

Meanwhile, Mr Mwanza has said Article 173(3) of the Constitution functions to protect public officers from being deprived of a protected property interest in their employment as public officers.

He said the removal of public officer from office, reduction in rank or otherwise the punishment of public officers without just causes and due process by the President or any appointing authority would not only violate the constitution but give raise a competent court of law to review the dismissal of a public officer through a judicial mechanism.

He public officers include anyone occupying an office in the teaching service, police commissioners and officers in the Zambia Police Service, staff in the Commissions, etc or generally anyone employed in the public service.

26 COMMENTS

  1. Mr Mwanza might be right. I don’t know, I’m not a lawyer. But I don’t think that the president or anyone else wanted to do wrong, they only wanted to get on with things. Do we really have to waste the concourt’s time and money? Let’s spend our time to finally get Zambia into shape, after all these years of PF mismanagement!

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  2. I like the Nigerian Movie style of swearing…… remember who get inducted in money making ventures. Those guys in red robes except these are in suits.

  3. Its okay, there was no intention to hi-jack the constitution, but the situation was in reaction to high demand and pressure, by folks like Sean Tembo, Nakacinda, Andy, etc, who wanted the preseident to name his cabinet.
    I curious now, what they are going to say….blame the President?? If they do, that will proove what we have been saying about the useless checks & balances they claim to provide.

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  4. What type of writing is this where you just state “Mr Mwanza” even where there are court documents to obtain the full name of this individual.

  5. I agree with Mr Mwanza. The Constitution is clear….I just don’t think HH had intention to break the law way PF broke it on ministers staying. So court will be lenient to interpret provisions to suit HH scenario.

  6. I agree with Mr Mwanza. The Constitution is clear….I just don’t think HH had intention to break the law way PF broke it on ministers staying. So court will be lenient to interpret provisions to suit HH scenario

  7. There was only 1 special time the Court didn’t agree with Govt, case of former Ministers. So Mr Mwanza may he wasting time. ConCourt always agree with Govt

  8. Mwanza has done the correct thing. You can’t just dismiss people from employment without being accorded an opportunity to be heard nor follow the laid disciplinary procedure. I have in mind the case of late Mannase Phiri when he was dismissed at ZNBC, GRZ was made to compensate him emoluments and benefits for the entire duration of his contract. Why should civil servants shiver whenever they see surgical gloves? We can’t run our country like that. So I agree with Mwanza for challenging these absurd dismissals that are sometimes at the instigation of cadres

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  9. Even the government of laws can breach the same laws they swore to protect and uphold.

    Humans need to reminded of what is right and what is moral all the time, especially that power corrupts.

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  10. This is a new and very promising government. Allow them to make as many mistakes as possible. The stolen money which the PF was using to oil you is still there and you are trying to use the courts. Hard luck

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  11. The court will just throw away this petition for wasting its time, isn’t this guy part of the vanquished and villain Ntewewe PF group which was busy insulting diplomats before the elections only to see under ground American current in the elections, so please stop your games and become serious for once..

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  12. HH could have opened parliament a long time ago, with elected MPs, without putting his cabinet in place if those appointments were too complex to make. His order of events, by someone who took PF to Con court over ministers who stayed in office after parliament was disorved, left much to be desired on how he handled appointments. On this alone, l disagree with those who think HH made a mistake. I think he knew exactly what he was doing, based on this similar occurance. If your excuse for him that it was a mistake holds, then I would say it’s dangerous to have such a person who fails to pay attention to his own detail. What are you going to say if he signs off some binding deal that sells the entire country without his paying attention to detail? Let’s not excuse for the sake of it. That…

  13. I agree with you Mulongoti Machayi
    Even the government of laws can breach the same laws they swore to protect and uphold.
    You remind me of late Mwanawasa, the President some people claim to have led an upright government of Laws and legacy yet I believe that there were more scandals and corruption by Government Officers than any Government before and after because they concentrated more on the Politicians conduct than the Controlling Officers. At one time he wanted to Shield a high ranking Ministry of Health Official from prosecution for corruption and abuse of office following the procurement of Expired ARV Drugs worth millions of Dollars.
    It had to take Mr. M’membe and the Investigative Post Newspapers then to expose the scandal and force the then President Mwanawasa to buckle down…

  14. Sometimes it’s better to keep quiet if one doesn’t have anything to say that makes sense. I suppose we all know that laws are there to guide us on how things ought to be done. If things are done outside the confines of the law, shouldn’t we speak about them? Aren’t courts there to interpret the law? So if Mr Mwanza decides to go to court for interpretation of the law, should he be told to stop wasting the Court’s time? Aren’t the same con- court judges paid to make sense out of nonsense? It looks like some people are finding it very difficult to shade off the evil called cadreism. One would have thought we’re done with PF, but it looks like we still have people who miss PF so much they can’t resist revisiting it at every turn. It’s always PF this or PF that…PF is no longer in…

  15. Even if parliament have approved the case remains valid and proper before con court. Ministers like Mutati who didn’t take heed of HH advice not to report for work will be penalized for seating and taking tea in those offices . Heeent even further by addressing civil servants attached to the new ministry illigally. That a serious offence of impersonating a govemeny official. Mr Musokotwane is another minister who didn’t wait. Let’s wait and see. The case have just started some will be served with injunctions not to come near the office until the cases are done.

  16. Were the ministers sworn in before parliament convened or not? If they had not been sworn into office then there’s no breach of constitution.

  17. This PF stooge is only making noise now when UPND is in power. If he was so concerned with the constitution why didn’t he take Lungu to court for keeping ministers in office after dissolving parliament? Why didn’t he take lungu to court for firing civil servants and public officers without just cause like the former police officer in sesheke. Continue with your noise making but it will still not bring your party back.

  18. Parliament has already regularised the creation of New Ministries and the abolition of Old Ministries. Mr Mwanza is one of the PF Busy bodies looking for recognition under the New Dawn. Giving checks and balances to a Ruling Party carries with it responsibility. The Transitional Period needs to be streamlined legally for the future.

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