Answering Misheck Shulumanda on the question of Guy Scott and treason

A gentleman by the name of Micheck Shulumanda has asked a few questions over the propriety of Guy Scott acting as president. He is challenging the use of Article 38 instead of Article 39 when deciding who should act as president. I wish to provide some answers.

  1. If the President appointed Minister of Defense and Justice, and PF Secretary General Hon Edgar Lungu to act under Article 39 (1), on what basis did the Attorney General advice Cabinet that Dr. Guy Scott is the rightful person to Act?

Article 39 operates when a President is alive. Article 38 operates when a President is “dead” and there is a vacancy in the presidency. The death of Michael Chilufya Sata triggered the operation of Article 38 as a vacancy due to death arose.

  1. Why did the Attorney General only rely on Article 38 which deals with vacancy in the office of the Presidency without addressing himself to Article 39 (1) under which Hon. Lungu should have been appointed since the President left the country for medical purposes?

There was no need to address himself to Article 39 because President Sata died. When a President dies, a vacancy in the presidency is declared and that triggers sections of the constitution that deals with a “vacancy”. One such section is Article 38.

  1. Why is it that President Sata never allowed Vice President Guy Scott to act as President if not for the reasons that he was incapable to perform functions of the office of President? Why should he act now that he is dead?

I do not know why President Sata never allowed Scott to act. Guy Scott can act now that President Sata is dead, because as you have said it, he is dead. President Sata and his actions or inactions are never a source of constitutional law in Zambia. The source of Zambia’s constitutional law are as follows: (1) the text of the constitution, (2) the judgements from the Supreme Court and the High Court, (3) unwritten conventions from our English Common law heritage, (4) Acts of parliament. His Excellency President Michael Sata or any president are not a source of Zambia’s constitutional law. Guy Scott is acting now, because there is a vacancy in the presidency on account of the death of an incumbent.

  1. Was President Sata on the wrong side of the law when he asked others to act even when the Vice President was verily available in the country?

This question has no relevance to the matter at hand. The question is not about whether Sata was right or wrong, but rather what should happen in the event that there is a vacancy in the presidency. According to our constitution, the repository of Executive power in the event of a vacancy in Zambia is the Vice-President.

So has, Attorney General Musa Mwenye committed treason? Not a bit.

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6 comments

  • According to my observation when carefully analizing the contents of article 53(1) the atorny general is just suposed to act as party president incase of the presidents resignation and removal (not death)
    But incase of his death, section 54 gives powers to the vice president to act as party president.

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  • What is clear is that our laws are flawed with ambiguities that always allow shrewd lawyers to capitalize and interpret things in their favor. The PF constitution itself has a funny sweeping clause that empowers the Vice President with full functions of a president as opposed to a party secretary general. One can only feel for those that have been outsmarted on this one because they thought being secretary general of the party was all they needed to succeed the late President: MHSRIP

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  • Munshya, though not relevant at this time but as a law guru we have come to know whose insight we trust because your arguments are not from without, would you on a matter of law, please tell us if the late President erred when he sidelined his vice to act as President?

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  • An acting president cannot do everything that a substantive president does. For instance, he cannot revoke a presidential appointment unless cabinet returns a majority vote on the matter. The constitution does provide for an acting president, who has considerably less powers than an elected president.

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  • Acting presidents can only do what presidents do. That makes them presidents. If they are not qualified to be presidents, they cannot be acting presidents. A dish is not a knife. Only a knife can be a knife.

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  • Scott is not even acting, he is President until elections are held. The constitution doe not provide for acting capacity in the absence of a substantive president.

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