Deputy Speaker of the National Assembly Mukondo Lungu on Tuesday made what could be described as a constitutionally ambiguous ruling in Parliament when he stated that Musa Mwenye, the newly ratified Attorney General can begin performing the functions of that office before taking the Oath of Allegiance.
This ruling by Mr Mukondo Lungu was prompted by a point of order by Choma Central Member of Parliament Cornelius Mweetwa who wanted to know the legality of the Excess Expenditure Appropriation (2011) Bill which was tabled in the House after it had lapsed and whether Mr Mwenye should have signed the Bill without first being sworn in by President Sata.
Mr Mwenye, along with Abraham Mwansa and Mumba Malila were ratified as Attorney General, Solicitor General and Supreme Court Judge respectively more than three weeks ago but President Michael Sata has not sworn in the trio.
An oath or covenant is the very glue which holds a citizen’s allegiance to a republic in modern democracy and in Zambia the loyalty is sworn to the Constitution and the President of the Republic.
The ruling by Mr Lungu in Parliament yesterday that Mr Mwenye could begin carrying out functions of the Attorney General before being sworn in has without doubt put this most fundamental constitutional procedure under test.
If breaking of an oath is a constitutional crime, we wonder what it would be for an individual appointed to a constitutional office to breache the procedure of taking oath of allegiance and start performing his functions before being sworn in.
May be, this is why the Law Association of Zambia (LAZ) has decided to undertake a research to comprehensively understand the constitutional implications of Mr Mwenye start of performing the functions of the office of the Attorney General without taking oath of allegiance.
Mike Mulongoti, the People’s Party president has described the ruling by Mr Lungu in Parliament as a pretty tricky situation because according to him, Mr Mwenye needed to have a formal appointment letter as well as the oath of allegiance to substantively perform his functions.
The constitutional ambiguity in Mr Lungu’s ruling arises due to the fact that he did not clearly state whether Mr Mwenye could substantively take up the functions of the Attorney General’s office or that he would only act for administrative convenience as he awaits taking oath of allegiance.
We are skeptical about such kind of actions because should Mr Mwenye begin performing his functions as a substantive constitutional office holder of the office of the AG, then of what importance would the constitutional provision that such officers enter into solemn covenants with the country, the constitution and indeed the President be?
As things stand, we have the new Solicitor General Abraham Mwansa who has never taken any oath before unlike Mr Mwenye and Mr Malia and we wonder whether such an individual would be allowed to act or indeed start performing the functions of the Solicitor General before taking oath.
We are not legal experts but we are increasingly perturbed by events that are unfolding in the governance system and we do not want to imagine that our Constitution, with all its weaknesses is being breached by the very people mandated to make the laws.