THERE are growing calls that Cabinet was wrong to endorse the transfer of Presidential powers to Vice-President Guy Scott because Defence and Justice Minister Edgar Lungu was the substantive Acting President, constitutionally by President Sata.
A legal consultant Derrick Sokoni has said that there was no provision in the Constitution for the removal of an Acting Head of State when he is a Cabinet Minister.
Mr Sokoni said it was illegal in the eyes of the law for Cabinet to have appointed Dr Scott as Acting President because there was no provision in the Constitution that empowered Cabinet to hold an election with the view to remove a Cabinet Minister acting as President.
In the context of article 38, President Sata had appointed Mr Lungu, a Cabinet Minister as President and therefore senior to the Vice-President.
It was inconceivable, he said, that a person entrusted with Presidential powers by the President could be subordinated to another person that the President did not think capable of the position stating: “There is no provision in the constitution that a person appointed by the President will have his powers revoked by anyone other than the President.”
And former special assistant to President Levy Mwanawasa, Jack Kalala has said it was not automatic and mandatory for Dr Scott as Vice-President to become Acting President after the death of President Michael Sata because the appointment of Mr Lungu as Acting President had not been revoked.
“ The appointment could only be revoked by the President,” he said.
A media practitioner Justine Mupundu has also said Zambians should seek the interpretation of article 38 of the Constitution from the courts of law because Attorney General Musa Mwenye opinion about the Vice-President automatically taking over the position of Acting President upon the death of seating president was wrong.
He said Mr Lungu who is PF secretary general was appointed to act as President under article 39 (1) which also prescribes that his appointment could only be revoked by the President.
Mr Sokoni argued that there was no acting president when the office of President fell vacant adding President Sata had already handed the instruments of power to Mr Lungu before his untimely death and that the action by cabinet to appoint Dr Scott as Acting President was illegal.
Mr Sokoni said Mr Lungu had shown leadership qualities by allowing peace to prevail even when he was entitled under the law to continue acting after the death of President Sata.
He explained that the legal procedure of removing Mr Lungu from acting as President was to hold elections within 90 days and warned that any other act was illegal as it was not backed by law.
“There is no provision in the Constitution which provides for the removal of Acting President when he is a Cabinet minister. What the Attorney General failed to do was to show the provision in the Constitution which empowers Cabinet to hold an election with the view to remove a Cabinet minister who is Acting President. The procedure to remove Mr Lungu as Acting President is to hold elections within 90 days. Any other act is illegal because it is not backed by law,” Mr Sokoni said.
Efforts to get a comment from Attorney General Musa Mwenye failed as his mobile phone went unanswered and a text message sent to him was not responded to.
And Mr Kalala said the requirement that the appointment of an Acting President should be done in writing and signed implied that it was not automatic and mandatory for the Vice-President to become Acting head of State.
Mr Kalala said the question that needed clarification was whether Mr Lungu was constitutionally appointed by President Sata to act as President and at what stage the appointment ceased to be valid or revoked.
He said it was his considered view that Zambia was in a constitutional crisis and that there was need to address the situation conclusively.
Mr Kalala said the situation in the country seemed to be calm because of Mr Lungu’s humility to cede power to Dr Scott and doubted if any other person could have acted in the manner the PF secretary general did.
He explained that although Professor Muna Ndulo’s legal clarification on the Acting President was ‘‘brilliant and excellent’’, the situation had been left hanging by his failure to directly comment on Mr Lungu’s appointment. “The requirement that the appointment of an acting President should be in writing and signed implies that it is not automatic and mandatory for the Vice-President to become Acting President whenever the need arose. It is my humble considered view that we have a constitutional crisis on our hands that needs to be conclusively addressed.
He stated that Attorney General Musa Mwenye lied when he told the nation that when president Levy Mwanawasa died in France in August 2008, then defence minister George Mpombo was acting president.
Mr Kalala said Mr Mpombo was never made acting President from the time Dr Mwanawasa left the country for Egypt on June 28,2008 to August 19 2008 when he eventually passed on at Percy Military Hospital in France.
He explained that Mr Mpombo could not have been appointed Acting President at the time because the then vice-president Rupiah Banda was in the country when president Mwanawasa left the country for the African Union (AU) meeting in Egypt where he suffered a stroke.
Meanwhile, Mr Kalala has wondered whether acting Chief Justice Lombe Chibesakunda was holding the office of the Chief Justice constitutionally and whether she would be in a position of swearing in a president-elect. Mr Kalala said Justice Chibesakunda was a subject of the courts of law as the Law Association of Zambia (LAZ) had challenged her appointment in court and wondered whether she would qualify to preside over the presidential by-election.
“This ambiguous situation we have found ourselves in is as a result of ignoring the rule of law and it will land us into serious trouble in future. As it is now, just as it was following the death of president Mwanawasa, there is a vacuum of executive powers in the country until a substantive president will be elected and sworn in. There are serious and dangerous lacunas in our constitution that need to be urgently addressed, hence the need for the new Constitution,” Mr Kalala said.