THE Lusaka High Court has been asked to determine whether Vice-President Guy Scott has illegally assumed the functions of the office of President following the demise of President Michael Sata who had delegated such functions to Defence and Justice Minister Edgar Lungu.
Former deputy minister of finance Newton Ng’uni has charged that Dr Scott was disqualified by the Constitution and that his continued to act as President has created a constitutional crisis.
The ex-parte application is being heard by Justice Gertrude Chawatama who has set tomorrow as the date of hearing.
Mr Ng’uni has also charged that Attorney-General Musa Mwenye misled Cabinet when he told the ministers that a vacancy in the office of President had been created after the death of President Michael Sata when there was an acting President at the time.
Mr Ng’uni has sued Acting President Guy Scott, Attorney general Musa Mwenye and Defence and Justice Minister Edgar Lungu in the High Court and is seeking judicial review against the decision by the Patriotic Front (PF) secretary general to transfer the instruments of power under Gazette notice number 638 of 2014 to the Vice-President.
In this matter, Dr Scott is the first respondent, Mr Mwenye as the second respondent while Mr Lungu is the third respondent.
Mr Ng’uni, in his affidavit in support of ex-parte notice of application for leave to apply for judicial review, contended that Mr Lungu should not have ceded power to Dr Scott but should have continued performing the functions of the office of President because the Constitution allowed him to do so.
He argued that the Cabinet meeting that purportedly resolved that the instruments of power be transferred to Dr Scott had no authority to discuss such transfer of power as there was no vacuum of power as Mr Lungu was already performing the functions of the office of President.
He said in his affidavit that Mr Lungu had no authority under the Constitution to re-delegate power which he was dully exercising under delegated authority from late President Sata.
“Mr Mwenye deliberately misinterpreted the term ‘vacancy’ and created an impression that Dr Scott was qualified to act and discharge the functions and duties of the office of President. It is my view that this act of misleading Cabinet by Mr Mwenye has effectively resulted in an illegal assumption of power by Dr Scott. “This has further resulted in Dr Scott who is not qualified to act as President and to discharge the functions and duties of the office of President to perform such functions and duties illegally, thereby resulting into a constitutional crisis. The Cabinet meeting that purportedly resolved that the instruments of power be transferred to Dr Scott had no authority to discuss such transfer of power as there was no vacuum of power because the instruments of power were already being held by Mr Lungu,” Mr Ng’uni argued.
He stated that Mr Mwenye deliberately misled Cabinet because he had ulterior motives and irrelevant considerations without regard to national security.
Mr Ng’uni stated that when the office of President became vacant by either death or resignation or removal of the President from office, an election should be held within 90 days from the date of the death of a sitting president.
He argued that there was only one way a person performing the functions of the office of President under delegated authority could have such powers revoked and that was surrendering the instruments of power to the appointing authority or by holding a presidential election.
Mr Ng’uni said Mr Lungu, who was performing the functions of the office of President, should have continued acting as President until another citizen was elected as president as provided for by the Constitution.
“However, this is not what Dr Scott, Mr Mwenye and Mr Lungu did as the events of the 29th October, 2014 following a Cabinet meeting have shown. Dr Scott, being the Vice-President of the Republic of Zambia, on advice of the Attorney General Musa Mwenye, Cabinet resolved that Mr Lungu as a person performing the functions of the office of President relinquish the presidential instruments of power, threatening that if that did not happen, Mr Lungu and other Cabinet ministers would be charged with treason,” Mr Ng’uni said.