Q FM Africa's Modern Radio
Attorney General Musa Mwenye has been commended for putting to rest speculations on the eligibility of Vice President Guy Scott to Act President following the demise of President Michael Sata.
Mr. Mwenye has clarified that the decision by Cabinet to uphold the provisions of Article 38(2) of the constitution which allow the vice president to act as president whenever the office of president becomes vacant was informed by the fact that, although Justice Minister Edgar Lungu was acting President at the time of the death of President Michael Sata, there is no provision in the constitution that automatically empowered him to continue acting as President.
The Young African Leaders Initiative (YALI) says it supports Mr. Mwenye’s interpretation of the law because it also holds the same understanding that the constitution allows Dr. Scott to act as republican President under the present circumstances.
YALI governance advisor Isaac Mwanza says his organization therefore suggests that the ruling Patriotic Front should now concentrate on sorting out who is going to stand in the forth coming presidential by-election which has been caused by the death of President Sata.
Mr. Mwanza has told Qfm News by telephone that protests by PF cadres as seen in Lusaka on Thursday against Dr. Scott following transfer of instruments of power from Defence and Justice Minister Edgar Lungu who was acting President are uncalled for.
He says young people should not allow themselves to be used in perpetrating such a course especially that the Attorney General has now clarified that Dr. Scott is eligible to act as republican President.
Mr. Mwanza however states that those still aggrieved following Mr. Mwenye’s interpretation of the constitution provision have the right to challenge Cabinet’s decision allow Dr. Scott to act as republican President in the courts of law.
In his legal opinion made available to the media, the Attorney General has also reminded the nation that when late President Levy Mwanawasa died, then Defence Minister George Mpombo was acting President, and that after the death of President Mwanawasa, former President Rupiah Banda who was then Vice President had to assume office in accordance with Article 38(2) despite Mr. Mpombo having been acting President at the time of the death of President Mwanawasa.
The “decision” as to whether Dr Scott should discharge the function of the office of Presdent following President Sata’s death was not made by Cabinet, nor was it in their power to decide one way or the other.
Article 38(2) is abundantly clear on the subject.
To suggest that Cabinet “decided” to allow Dr Scott to “act as President”, suggests that the Cabinet is above the Constitution. They are not.
All that Cabinet did, with clarification by the Attorney General, was simply to comply with the Constitution of Zambia as by law established. Cabinet had no power to decide either way.
I am surprised at the description of Dr. Scott’s description as “acting president”. There is no provision for such an office in our constitution; it says only that the Vice President, or any other person elected by the Cabinet for that purpose, “shall discharge the functions of the office of president”. It does not say, or even imply, that the Vice-President or any other person, shall assume the office of president even in an acting capacity.
Even if the reference to the Mwanawasa – George Mpombo-Rupiah Banda episode were inaccurate, it would have no impact on, or consequences for the current situation. The Constitution is quite clear that if the President dies or is so incapacitated that he/she is unable to appoint someone, the Vice President will discharge the functions of the office of president except if the Vice President is unavailable or is also incapacitated.
This is not a matter of the Cabinet making a decision; it is matter of Cabinet following or respecting the law.