Mr. Editor I find it quite astounding that the President of the Republic of Zambia can receive legal advice to the effect that he cannot entrust instruments of power to Dr. Guy Scott, the Vice President whenever he is outside the country! The apparent reason for this strange legal advice is because Dr. Scott does not qualify to be President of Zambia! I will contribute to this public discussion by stating that, under our constitution, Dr. Scott qualifies to be President of the Republic of Zambia and he can be entrusted with instruments of power whenever the President is out of the country.
Firstly, the Constitution of the Republic of Zambia is very plain and clear that the Vice President should act as President when the incumbent is outside the country or is incapacitated. It gives four (4) such instances:
1. If the President resigns (Article 35(4)(a);
2. If the President is removed on grounds of incapacity (Article 36(3)(a) ;
3. If the President is successfully impeached in Parliament (Article 38(2); and
4. If the President is absent from Zambia (Article 39(1).
Mr Editor, in all the instances listed above, only the Vice President can act as President in place of the incumbent. The only constitutional instances when anybody else apart from the Vice President can act as President in the absence of the incumbent is when the substantive Vice President is himself or herself outside the country or is incapacitated physically or mentally. This fact is succinctly expressed by Article 39(1) of the constitution. The constitutional provisions with regard to the power arrangements in the absence of the Republican President are so clear and it is shocking that they can be misunderstood by people whose job it is to advise the President! A cabinet minister can only be appointed to act by the President when the Vice President is either not in the country or by reason of physical or mental infirmity is incapable of acting. The reason that instruments of power cannot be left with Dr. Guy Scott because he allegedly does not qualify to be President of Zambia would be laughable if we were watching a play at Lusaka Playhouse but these matters are so serious because we dealing with key offices of our Republic.
The current Vice President of Zambia qualifies to be President of Zambia. This is despite the constitutional provision in Article 34(3)(b) which, among many other qualifications, states that a person shall be qualified to be a candidate for election as President if, “both his parents are Zambians by birth or descent”. It is clear that this provision is referring to qualifications for presidential candidates. In short, before one can file in nomination papers to run for the office of President he must satisfy the criteria in Article 34 (3). However, whoever becomes Vice President after the elections is empowered by Articles 35, 36 and 38 of the Constitution to preside over the affairs of the nation should the President, for whatever reason cease to hold office. This is irrespective of the fact that the substantive Vice President’s parents could be from Mongolia or Khazarkistan!
Further, the above parentage clause in Article 34(3)(b) of the Constitution of Zambia when it demands that a presidential candidate’s parents must be Zambians by birth or descent is illogical and incapable of application by this generation of politicians. This clause was a butt of disdainful comments by a five member Supreme Court bench in the case Lewanika & Others vs. Frederick Jacob Titus Chiluba (S.C.Z) Judgment No. 14 of 1998. The venerated Lordships stopped short of calling into question the competence of the framers and drafters of the clause in question. These were some of their words, in reference to the said parentage clause:
“The parentage qualification for election as president introduced into the Constitution of Zambia 1991 by the amendment in 1996 pose a number of difficulties apparently without solution, e.g. whether the reference is to legitimate or biological parentage and whether adoptive parentage is included.”
At another point their Lordships masked their undoubted irritation by remarking that:
“We consider that the point has to be made that the parentage qualifications introduced into the constitution in 1996 pose a number of apparently solution less problems and difficulties. In giving the example of the adopted Zambian of Chinese origins, we mean no disrespect to that great race but illustrate some of the difficulties. We doubt if the framers of the amendments had these problems in mind. If the aim was to provide for indigenous presidents only as suggested by counsel, then quite clearly the language of the amendments actually employed did not and could not achieve this. Had explicit language to that effect been employed, such language might conceivably have run the risk of infringing the non- discrimination provisions in the part of the constitution which is entrenched.”
The definitive statement in this case was when the Court stated that:
“There were no Zambian citizens as such prior to independence and that Zambian citizenship and nationality only commenced on 24th October 1964. This assertion which we accept as technically and legally correct means that the constitutional provision regarding parents or anyone born prior to independence who are or were Zambian by birth or by descent can meaningfully only be construed as a reference to those who became Zambians on 24th October 1964 or who would, but for their prior death, have become Zambians on that day.”
What the parentage clause therefore does is to make nonsense of logic and the net result is that we have a law that is incapable of application. For if before 24th October, 1964 there were no citizens of Zambia, how can anyone’s parents be Zambians by birth or descent? In simple terms, anyone whose parents were born before 24th October, 1964 cannot claim to have been Zambians! What this means is that the parentage clause has no useful application and cannot bar Dr. Scott if he wanted to be President of Zambia and certainly does not stop him from acting as President in the absence of the incumbent. The parentage clause will be useful to the children of Zambians born after 24th October, 1964, should these children want to stand for the office of President! It certainly has no application in this age of Octogenarian politicians whose parents in fact could have been dead before Zambia was born!
The intention of Mr. George Kunda, S.C to test the legality of Dr. Scott to hold the office of Vice President is quite noble in that the Courts will have a chance to definitively state the application of the parentage clause, if it has any application at all. In a democracy and among intellectuals a person holding a different view need not be ostracized but endeavour must be made to inquire into the veracity of his arguments. What Mr. George Kunda’s efforts on this issue have helped highlight is the quality of legal advice that is being doled out to our President, assuming he entrusted the instruments of power to Mr.Chikwanda, based on legal advice.
GILBERT A. PHIRI