President HH Has Breached The Constitution On His Very First Public Act – Peter Sinkamba

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By Peter Sinkamba Greens Party President.


On my mind this morning is the appointment of Hon Dr. Musokotwane as Finance Minister.

To start with, let me congratulate His Excellency HH on the pick of Hon Musokotwane for Minister of Finance. I have no doubt in my mind that he can deliver on the economic and financial objectives set out by His Excellency in yesterday’s tweet.

.My main worry, though, is whether the President has not breached the Constitution on his very first public act of invoking the instruments of power that he received at Heroes Stadium a few days ago.

President HH was elected on the platform of constutionalism and rule of law. It would therefore be extremely regrettable and deplorable if he threw the tenets of constutionalism and rule of law under the bus on his very first public act of invocation of the instruments of powers.

Here is the basis for my worry:

Article 81(3) of the Constitution provides that Parliament shall stand dissolved ninety days before holding of the general election. In the case of Simbakulya and 63 others, the Constitutional Court held, in simpler terms, that no person shall hold office of minister while Parliament stands dissolved. Consequently Hon. Simbyakula and 63 others were ordered to pay back all monies paid to them as ministers while Parliament was dissolved.

Implicitly, all acts performed by a person masquerading as a minister while parliament stands dissolved are not only unconstitutional but illegal too, going by Article 2 of the Constituion.

In view of the foregoing, the key question that begs a candid answer is whether Parliament has officially commenced, following the holding of the general election on August 12.

If the Session of Parliament has officially commenced, then it is Constitutional and legal for President HH to have appointed Hon. Musokotwane as a minister. In that case, the President has complied not only with the Constitution but case law too (Simbakulya and others).

Now, for the session of Parliament to commence, we are guided by Article 81(1) of the Constitution. This Article provides that the term of Parliament shall be five years commencing from the date that the Members of Parliament are sworn into office after a general election and ending on the date that Parliament is dissolved.

The question is: following the general election held on 12 August, have ALL MPs been sworn into office? If the answer is “yes” then the Parliament has officially commenced, according to Article 81(1). And in that instance, there is no problem with the appointment by the President of Hon. Musokotwane as minister. And there is no problem with Hon Musokotwane subsequent assuming office of Minister of Finance.

But if it is only Hon Musokotwane who was sworn into office of Member of Parliament, can Parliament be said to have commenced in accordance with Article 81(1)? These questions beg candid answers that can only be authoritatively provided by the Concourt.

The other issue of concern is regard to procedures prescribed by the National Assembly Standing Orders of 2016 on the commencement of the Session of Parliament, and swearing into office of Members of Parliament followed. Have the Standing Orders been complied with to the letter? This is a rule of law concern.

The other issue of interest is on who rendered legal advice to the President on the issue of appointment of Hon Musokotwane. According to Articles 178 and 179 of the Constitution, there is no Attorney General and Solicitor General holding office in the Republic at the moment following the replacement of Former President ECL by His Excellency HH.If the AG and SG have not yet vacated their offices per Articles 178 and 179, and either of them rendered a legal opinion to President HH on the appointment of Hon Musokotwane, is such advise constitutional and lawful?

Additionally, if the AG and SG were not involved, but since President HH has not fired presidential aides at State House, and the legal advice was rendered to the President by Counsel Lukangaba, the special assistant on legal matters, can that advice be regarded as constitutional and lawful?

Or indeed, if it were party functionaries Hon Mwiimbu and Hon Mweetwa that rendered the legal advise on the appointment, can that advise be regarded to be constitutional and legal?

Finally, considering that President HH was elected on the platform of constutionalism and rule of law, and in view of constutional and other legal huddles that need to be sorted out before appointment of ministers; and considering further the urgency required to sort out the economic and the financial quagmire of the country, including budget issues, my view is that the President should have in the interim simply appointed himself as Minister of Finance, and appointed Hon Musokotwane as Task Team Leader for Economic Revival Team. In that manner, the President would have still achieved the objectives he set out in his tweet without breaching the Constitution and the other laws. And in fact, in this manner, he would achieved the results even better.

Perhaps, it is not too late yet for President HH to revoke the appointment of Hon Musokotwane and proceed as I have advised. For, it will be quite a blow to his presidency if the appointment of the minister is challenged in Concourt, and he is found wanting on his first act of invoking his instruments of power. He needs to remember that he was critical to the Former President on illegal stay of ministers in office. So he should avoid making the same mistakes. He should also remember always that what is good for the goose is good for the gander.

Just my thoughts on the instruments of power for pamupando!
By Peter Sinkamba

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