The subject of the Constitution of Zambia can be confusing for experts and laymen alike. To avoid some confusion, I will use the term “1991 Constitution” to refer to the original Mvunga Constitution of 1991. Actually, the current Constitution in force in Zambia is the 1991 Constitution.
However, this 1991 constitution has undergone at least two major revisions, the first one was in 1996 and the second one being this year in 2016. I will thus refer to the 1996 amendment of the 1991 constitution as the 1996 constitution and the 2016 amendments will be referred as the 2016 constitution with the understanding that we are actually talking about the 1991 constitution as amended.
Zambian constitutional law comes from several sources. The first source is the written constitutional text itself. The second source are laws promulgated by parliament. The third source are the rulings and decisions of the High Court and the Supreme Court of Zambia. As stated in the 2016 constitution, both the Court of Appeal and the Constitutional Court will become part of these influential courts. Court rulings become part of Zambia’s constitutional law and through a dry principle known as “stare decisis”, lower courts are supposed to follow rulings from a higher court in the hierarchy. Decisions of higher courts in Zambia are binding on all other courts. The fourth source of Zambia’s constitutional law are constitutional conventions. Conventions are really about common practice and tradition (how things have just been done). There is some debate, however, about just how influential constitutional conventions are for a country like Zambia that has a written text for a constitution. I shall return to this later. The fifth source of constitutional law in Zambia is commonwealth practice and the Westminster model. Commonwealth practice provides the philosophical underpinnings of our laws and politics and can be used to fill the gaps in our constitutional worldview. There are several other sources, which one can glean from a good textbook or from law school.
The question of whether it is constitutional for the cabinet to remain in office after the dissolution of parliament requires a subtle analysis of not only the written constitution but other sources as well. At close inspection, we will discover that in actual fact some of the things we have done in the past with regard to cabinet members relinquishing office, has not been based upon positive constitutional text, but rather upon convention and to some extent court rulings. In the 2016 constitution era we might need to re-examine what has been our practice in the 1996 constitution era. From the Westminster and commonwealth perspective, ministers are not expected to relinquish their positions after the dissolution of parliament. In fact, it is expected that the state must continue to subsist after parliament is dissolved. From England to Canada and Australia it is the practice that cabinet ministers will still be in power after parliament is dissolved and elections are called. However, Zambia became an exception, within the 1996 constitution era, when by convention it was expected that after the expiry of a parliamentary term, cabinet ceased to function as well. I checked the 1996 constitution, and there was no positive article in that constitution that stated that upon dissolution of parliament ministers lost their positions. It was nevertheless accepted more like a constitutional convention and the courts, in fact, reinforced this convention by requiring that ministers step down from their ministerial position on the day parliament gets dissolved for elections. The only exception the courts made was for the position of Vice-President which was interpreted to be a “transitory” office. So two elements, both convention and court decisions, made Zambia become the exception to the commonwealth common practice of retaining a cabinet during an election campaign period.
In the 2016 constitution era, however, it does seem like the 1996 constitutional conventions and court decisions may have been altered. Articles 116 (3) (e) and 117 (2) (d) of the 2016 constitution state that the office of minister shall become vacant if “another person assumes the office of President”. This terminology gives the impression that as long as President Edgar Lungu is in power, even after the dissolution of parliament, his ministers will still hold office until “another person assumes the office President” on August 11, 2016. It is not unusual to take this interpretation and I would not fault those who believe that this is what 116 (3) (e) and 117 (2) (d) state. Those holding that we must carry on with the 1996 practice do so based on a constitutional convention we allowed and which was affirmed by several court rulings on this matter.
Since the written text of the constitution is superior to all other sources of the constitution in Zambian law, it would appear that Lungu’s ministers may use the explicit terminology in the said articles plus commonwealth practice to buttress their position to sit in office until August 11. If this matter went to court and the court ruled on Article 116 and 117, that ruling will form part of Zambia’s constitutional law and Lungu’s ministers will either leave office or will be confirmed to stay until August. In my opinion, there is no need to take this matter to court. The written text of the constitution seems to be so clear: Lungu’s ministers will vacate on August 11, 2016, that is if Hakainde Hichilema assumes office. Having ministers continue during this election campaign does not necessarily mean that they will abuse government resources, and in fact, we still have other statutes to ensure that ministers do not abuse government resources.
Note: Elias Munshya is a Zambian practicing as a barrister and solicitor at West End Legal Centre in Alberta, Canada. This column discusses general matters for academic engagement. Those needing specific legal advice should consult members of the Zambian Bar. Barrister Munshya can be reached via Facebook, twitter and LinkedIn.