E. Munshya, LLB, LLM, MBA, M.DIV.
The subject of the constitution of Zambia can be confusing to experts and laymen alike. To avoid some confusion, I will use the term “1991 constitution” to refer to the original Mvunga constitution of 1991. Actually, the current constitution in force in Zambia is the 1991 constitution. However, this 1991 constitution has undergone at least two major revisions, the first one was in 1996 and the second one being this year in 2016. I will thus refer to the 1996 amendment of the 1991 constitution as the 1996 constitution and the 2016 amendments will be referred as the 2016 constitution with the understanding that we are actually talking about the 1991 constitution as amended.
Zambian constitutional law comes from several sources. They are as follows:
- The written constitutional text itself.
- The laws promulgated by parliament.
- The rulings and decisions of the High Court and the Supreme Court of Zambia. As stated in the 2016 constitution, both the Court of Appeal and the Constitutional Court will become part of these influential courts. Court rulings become part of Zambia’s constitutional law and through a dry principle known as “stare decisis”, lower courts are supposed to follow rulings from a higher court in the hierarchy. Decisions of higher courts in Zambia are binding on all other courts.
- The constitutional conventions (or constitutional “intambi“ to use a Bemba term). Conventions are really about common practice and tradition (how things have just been done or accepted to be done). There is some debate, however, about just how influential constitutional conventions (intambi) are for a country like Zambia that has a written text for a constitution. I shall return to this later.
- Commonwealth practice and the Westminster model of law and governance. Commonwealth practice provides the philosophical underpinnings of our laws and politics and can be used to fill the gaps in our constitutional worldview.
- Textbooks of constitutional scholars, or may be bloggers too (www.eliasmunshya.org should be an excellent choice!). These scholars might include Zambian eminent constitutional lawyers such as Muna Ndulo, Kenneth Mwenda, Mumba Malila, John Sangwa, Patrick Mvunga and Mulenga Besa. It is not surprising that most quoted scholars in Zambia remain British legal ancestors such as Lord Diplock.
- There are several other sources, which one can glean from a good textbook on constitutional law or from law school.
The question of whether it is constitutional for the cabinet to remain in office after the dissolution of parliament requires a subtle analysis of not only the written constitution but other sources as well. At close inspection, we will discover that in actual fact some of the things we have done in the past with regard to cabinet members relinquishing office, has not been based upon positive constitutional text, but rather upon convention and to some extent court rulings. In the 2016 constitution era, we might need to re-examine what has been our practice in the 1996 constitution era.
From the Westminster and commonwealth perspective, ministers are not expected to relinquish their positions after the dissolution of parliament. In fact, it is expected that the state (and its political supervisors) must continue to subsist after parliament is dissolved. From England to Canada and to Australia it is the practice that cabinet ministers will continue in power after parliament is dissolved and elections are called. However, Zambia became an exception, within the 1996 constitutional era, when by convention (intambi) it was expected that after the expiry of a parliamentary term, cabinet ceased to function as well. I checked the 1996 constitution, and there was no positive article in that constitution that stated that upon dissolution of parliament ministers lost their positions. It was nevertheless accepted more like a constitutional convention and the courts, in fact, reinforced this convention by requiring that ministers step down from their ministerial position on the day parliament gets dissolved for elections. The only exception the courts made was for the position of Vice-President which was interpreted to be a “transitory” office. So two elements; both convention and court decisions, made Zambia become the exception to the commonwealth common practice of retaining a cabinet during an election campaign period.
In the 2016 constitutional era, however, it does seem like the 1996 constitutional conventions and court decisions may have been altered. Articles 116 (3) (e) and 117 (2) (d) of the 2016 constitution state that the office of minister shall become vacant if “another person assumes the office of President”. This terminology gives the impression that as long as President Edgar Lungu is in power, even after the dissolution of parliament, his ministers will still hold office until “another person assumes the office President” on August 11, 2016.
It is not unusual to take this interpretation and I would not fault those who believe that this is what 116 (3) (e) and 117 (2) (d) state. Those holding that we must carry on with the 1996 practice do so based on a constitutional convention we allowed and which was affirmed by several court rulings on this matter. Since the written text of the constitution is superior to all other sources of the constitution in Zambian law, it would appear that Lungu’s ministers may use the explicit terminology in the said articles in the 2016 constitution, plus commonwealth practice, to buttress their position to sit in the ministerial office until August 11. If this matter went to court and the court ruled on Article 116 and 117, that ruling will form part of Zambia’s constitutional law and Lungu’s ministers will either leave office or will be confirmed to stay until August. In my opinion, there is no need to take this matter to court. It would be a sheer waste time and resources. The written text of the 2016 constitution seems to be quite clear: Lungu’s ministers will vacate on August 11, 2016, that is if Hakainde Hichilema gets elected to the office. Having ministers continue during this election campaign does not necessarily mean that they will abuse government resources, and in fact, we still have other statutes to ensure that ministers do not abuse government resources.
Important Note: The author and owner of http://www.eliasmunshya.org is a Zambian practicing as a barrister and solicitor at West End Legal Centre in Alberta, Canada. This blog discusses general legal questions for academic engagement. Those needing specific legal advice should consult members of the Zambian Bar.
Suggested Citation: Munshya, E. Cabinet After Dissolution of Parliament: Towards a theory of Zambia’s constitutional law. Elias Munshya Blog (www.eliasmunshya.org) (May 12, 2016).
Munshya, your analysis lacks depth and is morally incorrect. how can you exist without your parents? Ministers become such by reason of being MP’s. They are currently illegal. When FDD forms government 0n 11th september, they shall pay for it.
you are on point counsel
so want i understand from you the learned lawyers is that grz is at fault to allow the ministers to continue serving ..Australia has also demonstrated against the west minister and commonwealth perspective question is what is now the learned lawyers doing to correct the situation…because from your explanation of the constitution it means every resource the minister uses must not be allowed…
I am afraid that the legal reasoning that informs this article is deeply flawed. While Zambia borrows certain of its constitutional practices from the Commonwealth and the UK, guidance on any specific question must be based on the written constitutional text. Our constitution, which is the supreme law of the land, has codified all the applicable constitutional laws and conventions which apply to Zambia so that resort to foreign law may only be had when there is a lacuna in our Constitution. The issue of Ministers continuing to hold office after parley has been prorogued is one that turns on the construction of constitutional provisions, in this case, Article 116(1) and 3(e). Per the Att-Gen v Mutuna & Othrs Case ‘the primary rule of interpretation applicable in construing the Constitution is that the words should be given the ordinary grammatical and natural meaning and that it is only where there is ambiguity in the natural meaning of the words used that the court may resort to purposive interpretation of the Constitution’. The words used in Article 116 are plain and unambiguous. Article 116(1) says that the President shall appoint a prescribed number of Members of Parliament as Ministers. Only Members of Parliament can be appointed to the office of Minister and can only so remain if they are Members of Parliament. It follows that immediately one ceases to be an MP he or she can no longer legitimately perform the office of a Minister. The ministerial office is lost by operation of law, viz, Article 116(1). Since the loss of MP status has preceded changes in the office of President, Ministers cannot hold over the office until after a new President is elected or re-elected, as the case might be.
Well articulated , however, i feel that you have leaned so much of the law that stipulates on how a cabinet minister’s office can fall vacant. How about us looking at how does one becomes a cabinet minister as per our subsisting 2016 constitution ?
Following this, it there for means one can not hold office of minister of they are not a member of parliament by either an election or nomination. Having had parliament dissolved, it therefore means there are no cabinet ministers. How then, or where does the president derive powers to appoint our have cabinet ministers ?
if you read article 116.3(c)
it reffers to a minister who is hired on the basis of being nominated as a member of parliament vacating thier seat due that membership being revoked.
what am i trying to get across? if a minister is equally hired on the basis of being elected then a dissolution of Parliament implies a loss of their ministerial position..
Fact: in the zambian constitution being a minister is predominant on your membership in Parliament.
I havent seen the decisions of the court cited in your article that “reinforced” the so called convention. It would have been more persuasive and convincing to do so. Please tell us the case law.
From the Westminster and commonwealth perspective, ministers are not expected to relinquish their positions after the dissolution of parliament. In fact, it is expected that the state (and its political supervisors) must continue to subsist after parliament is dissolved. From England to Canada and to Australia it is the practice that cabinet ministers will continue in power after parliament is dissolved and elections are called.
But Australia ( am in Australia by the way) right now has dissolved Parliament to pave way for Elections on July 2 2016 and all Ministers are gone. The Public Service is in Charge of Government. Just correcting you on Australia specifically.