Why the ministers stayed
In May 2016, President Lungu argued the following:
“Article 62(1) provides as follows: ‘There is established the parliament of Zambia, which consists of the president and national assembly’. It is clear from this provision that I, as president, I am part of parliament.
Article 81(3) states as follows: ‘Parliament shall stand dissolved 90 days before the election’. Considering that the president is part of parliament, one would think that the president should vacate office upon dissolution of parliament. However, there are other provisions that allow for the president’s continuation in office until the new president is sworn in (Article 104).
Further, Article 72(1) provides as follows: ‘A member of parliament shall, except the speaker and the first deputy speaker, vacate the seat in the national assembly upon dissolution of parliament’. Article 72(1) read with section 13(2) of Act no 1 of 2016 excludes the speaker and the deputy-speaker from vacating office upon dissolution of parliament, despite them being members of parliament.
Similarly, the office of minister does not fall vacant after dissolution of parliament because there is a provision in the Constitution that allows for continuation. Article 116(3) (e) provides as follows: ‘The office of the minister becomes vacant, if another person assumes the office of president’.
I have heard assertions that the ministries can run under permanent secretaries. Article 116(2) provides as follows: ‘A minister shall be responsible under the direction of the president for the policy and strategic direction of a ministry, department or other state institution’. This clearly indicates that the above function is the preserve of ministers and not permanent secretaries.
It is therefore my considered view that the Constitution allows ministers to continue in office after dissolution of parliament in order to ensure that there is no break in service delivery, and a smooth handover to the next executive.”
The Constitutional Court has ruled that ministers and their deputies are in office illegally following the dissolution of parliament on 12 May 2016. The court also ordered the ministers to pay back all salaries and allowances received since then. The court did allow the vice-president to stay in office, to avoid a vacuum in the governance of the country.
There has been some confusion about the interpretation of relevant articles in the amended Constitution. In one place, it states that ministers must hand over responsibilities to their successors. In another, it implies that ministers must vacate office when parliament is dissolved. One thing is certain, the amended Constitution did away with the office of deputy ministers altogether. Yet, President Lungu decided to let all ministers stay (see Fact Box), after which the Law Association of Zambia took the whole mess to court.
The UPND called the ministers’ continued stay in office “daylight robbery”, and UPND-friendly lawyer Martha Mushipe argued that if any of them were re-elected as MPs, their seats could be easily nullified for using “illegally acquired government resources”.
The ruling PF party said it would respect the ruling, and pointed out that its presidential candidate, Edgar Lungu, had in fact spearheaded the enactment of the amended Constitution, which had allowed for the establishment of the Constitutional Court, which has now made a ruling against government.
Lungu himself noted that the Constitutional Court had relied on Article 72(1) only, whereas government had looked at the matter from a broader perspective (see Fact Box).