By E. Munshya, LLB (Hons), M.Div.
Agony is having someone serve as your vice-president and yet never give him the opportunity to act as president when you are not around. It is quite absurd that President Sata would have a vice-president distrusted to serve. When the PF government came into power in 2011, we welcomed the idea of an African country with a Whiteman as its vice-president. Indeed, President Sata has himself bragged to foreign dignitaries that only two countries in the world have a Blackman for president and Whiteman for vice-president: USA and Zambia. But what lies beneath all this chatter, is a glaring reality: President Sata has never left this Whiteman to act as president of Zambia. This oversight on the president’s part, in my opinion, is an anomaly that could trigger a grave but avoidable crisis.
President Sata does seem to be operating under the assumption that he could do anything he wants with the office of the vice-president. This is a serious misapplication of the law and the constitution. Unlike positions of cabinet minister, the office of vice-president is a constitutionally provided and protected office. It is the constitution that both limits and delimits the powers and structure of a vice-president (Article 45). Whereas the president does have a lot of discretion with how he configures the offices falling in Cabinet and their functions, the Zambian constitution does not give the president the sole discretion to configure the office of vice-president. Very little is left to presidential wishes. If a president selects a person to serve as vice-president then that appointment should confer upon such person all constitutional duties and privileges.
Article 45 (4) acknowledges that the primary functions of the vice-president are those imposed upon her or him, first and foremost, by the constitution itself and then secondarily by the president’s delegation. This is how Art 45 (4) is phrased:
In addition to the powers and functions of the Vice-President specified in this Constitution or under any other law, the Vice-President shall perform such functions as shall be assigned to him by the President.
So from this article, the president may assign the vice-president some functions, but these functions are “in addition” to the powers specified for the vice-president from the constitution. That being the case, the president cannot use Article 45 (4) to vary constitutional powers conferred upon a vice-president. It does not matter that the vice-president is just an appointee of a president.
The most significant function of a republican vice-president is to be a “transitory” executive office. According to Article 38 the vice-president runs the affairs of the state in an acting capacity when there is a vacancy in the presidency. This involves arranging for fresh elections and presiding over the affairs of the state. This transitory period is up to 90 days and could subsist until the next president takes the oath of office. It is only when the vice-president is “absent” or “sick” or “incapacitated” that cabinet is then authorized to appoint someone else.
In addition to being a transitory office, the vice-president also becomes a repository of executive power when parliament is dissolved. The Zambian courts have held very consistently that the vice-president and the president are the only members of the executive who remain in office after the dissolution of parliament. This is what Justice Wood stated in the case of Wynter Kabimba v. Attorney General and George Kunda (2011). It is the intent of our constitution that while the vice-president is indeed a member of parliament, he or she does not lose the office when parliament gets dissolved. Here is how this interpretation would apply to the Guy Scott issue. When President Sata dissolves parliament sometime in 2016 for elections, Hon Chikwanda and his cabinet colleagues will cease to be MPs. They will also cease to be cabinet members. Under those circumstances Chikwanda will not and cannot act as president. Vice-President Guy Scott, however, would continue to occupy the office of vice-president until a new president is sworn in. If President Sata continues with the current practice of leaving power only to Chikwanda, he could potentially create a crisis prior to 2016 elections when there will be no Chikwanda and no parliament. President Sata should begin giving the constitutional reins that Guy Scott already possesses by virtue of his office as vice-president. Levers of power should begin getting used to saluting legitimate office bearers regardless of their creed or colour. By stating this, I am not in any way insinuating that Guy Scott is a great political leader. Far from it. I am merely asking that Scott be treated equally like any other citizen of our republic.
Does the constitution preclude Scott from acting as president due to his skin? Arguing that the constitution has precluded a Whiteman from Zambian presidency is plain racism. In fact, it is nonsense. And if that is what is going on in the don’t kubeba government, then we should pity both the Head of State and the cadre of his legal advisors. Isn’t it absurd that the president would go ahead to appoint a vice-president who does not meet presidential eligibility? If a Veep can’t act as president, why then does he even occupy that office? However, I find no legal or constitutional basis why a Whiteman such as Guy Scott should be precluded from acting as president of Zambia. Article 34 as interpreted by the Supreme Court in Lewanika & Others v. Chiluba does suggest that any Zambian fitting Guy Scott’s situation could in fact satisfy the eligibility requirements, including the “parentage clause”. Interestingly, the “parentage clause” was passed when Mr. Sata was the country’s third most powerful politician. I wonder whether the contextual discrimination of 1996 is having an impact on the way President Sata is treating Scott today. In Chiluba, The Supreme Court went on to state that the 1996 constitution in Article 34 created problems for the future. Nevertheless, constitutionally absurd rules should be interpreted liberally. You cannot use kangaroo rules to deny a birthright to Zambians simply because they are of the wrong skin!
Some have stated that there is precedence that presidents have left power in the hands of their preferred cabinet members. Some point to Chiluba occasionally leaving power to his close ministers and not his Veep. In fact, there is speculation that President Mwanawasa left symbols of power with Defense Minister Mpombo and not Vice-President Rupiah Banda in 2008. For administrative convenience, a president could leave his preferred chaps to act in his absence. But this should be for governmental expediency and should happen once in a while. Administrative convenience does not mean, racial convenience. Scott is not “absent” or “sick” or “incapacitated” for President Sata to continually sideline him for a presidential salute. Or may be he is indeed “incapacitated”. But I am left to wonder whether it is the colour of his skin that makes him incapacitated. It certainly appears so. Only the president can correct this anomaly and do right.
Scott has received some very demeaning remarks from some opposition leaders. That should not be the case. However, President Sata can help prevent these slurs by giving to Scott the privilege of nationality constitutionally accorded to vice-presidents, white or black. Then only will it make sense that Zambia indeed has a black president and a white vice-president. Our Zambia belongs equally to all: Bembas, Tongas, and, of course, bazungus like Guy Lindsay Scott.
Note: This article deals with general matters of the law from a public interest perspective. Those needing specific legal counsel on some of these questions should consult members of the Zambian bar.