STATEMENT AGAINST APPOINTMENT OF OPPOSITION MPS TO MINISTERIAL POSITIONS: BY BRIG GEN GODFREY MIYANDA
I call upon President Sata to come out of his fortress and respond in a non-partisan way about his real stand on governance but particularly on the provocative poaching of Members of Parliament from opposition parties so that this matter can be put to rest. We challenge the claim that the President has a blanket power to appoint opposition MPs to ministerial positions and contend that the Republican Constitution forbids poaching of MPs.
This issue is a constitutional and legal one; hence it calls for legal arguments rather than political rhetoric. So far the PF have neither provided legal grounds nor even cited the actual provisions that give the President the blanket mandate they are claiming he possesses.
We address the following issues to put our case in context: Government Justification of poaching; Obligations of an elected President; the Spirit and letter of the Constitution; Specific provisions.
JUSTIFICATION FOR POACHING
President Sata claims that poaching promotes development; the PF also claim that it is inclusive to entice opposition MPs since they too are Zambians. There is even one outlandish justification by a poached UPND MP asking the question “where in the Bible does it say it is a sin to work with Sata?” In all these pronouncements no legal arguments have been proffered!
OBLIGATIONS OF AN ELECTED PRESIDENT
The first mandatory act that the President carries out before assuming office is to take the Oath of Office which obliges him, inter alia, to uphold and maintain the Constitution as well as to carry out his duties to the service and welfare of the people of Zambia without fear, favour or ill will. These are solemn words whose language is not ambiguous. His vow that he will continue to poach is a breach of his Oath of Office.
THE SPIRIT AND LETTER OF THE CONSTITUTION
The current Republican Constitution is alive and has what it takes to stand up to scrutiny and pass the test of a document that protects rights of citizens, particularly democratic rights and those of freedom of association and assembly; it may require improvement but it is effective.
To appreciate the true intent and spirit of our Constitution I let the Constitution speak for itself by quoting from it the following relevant provisions, which declare, inter alia that ‘We, the People of Zambia
These declared tenets from the Preamble and Part 1 of the Constitution are buttressed by the following guidelines from the Directive Principles of State Policy which declare in Art 112 (a) that “the State shall be based on democratic principles.”
Clearly the spirit and letter of the Constitution is that there shall be at all times a democratic style of governance that does not threaten the indivisibility, multi-party and democratic character of the State and its peoples. Hence it provides serious sanctions if breached and subjects the President to impeachment under Article 37 for violation of the Constitution.
RELEVANT SPECIFIC PROVISIONS
Articles 46 and 45 provide for the appointment of Ministers, Provincial Deputy Ministers and Deputy Ministers from amongst members of the National Assembly. These provisions should not be read in isolation from other relevant parts of the Constitution. A case in point is Art 71 (2) of the Constitution which provides that a member of the National Assembly shall vacate his seat in the National Assembly
(b) “if he acts contrary to the code of Conduct prescribed by an Act of Parliament.
(c) in the case of an elected member, if he becomes a member of a political party other than the party of which he was an authorised candidate when he was elected to the National Assembly or, if having been an independent candidate, he joins a political party or having been a member of a political party, he becomes an independent.”
Consequently Parliament enacted the Parliamentary and Ministerial Code of Conduct Act CAP 16 which states:
(a) Publicly contradict or disassociate himself from any policy adopted by Cabinet.
(b) Issue public statements criticising another person holding Ministerial office;
(c) Make unauthorised disclosures of Cabinet discussions, decisions or documents.
Clearly opposition MPs so appointed cease to represent their political party in Parliament and outside as they cannot even share with their Party information concerning the inner workings of the Cabinet. It is fallacious for the President to claim that poaching is inclusive politics when these MPs are mere Deputy Ministers who never attend Cabinet meetings.
By the President’s unconstitutional acts opposition parties have become an endangered species while the PF regime is aggressively hunting them, using an illegal game licence. The provisions quoted herein prescribe loss of membership as punishment for crossing the floor. This is essentially expulsion and is not different from what affected political parties do.
The affected opposition political parties must NOT succumb to partisan arguments against bye-elections but fight against dictatorial tendencies by the PF regime. It is better to remain with one MP who speaks for you than a horde of mercenary MPs with daggers in their hands!
[11TH MARCH 2013]