Find us on Google+

Monday, 25 August 2008

Clearing the constitutional mud, 2nd Edition

One of the most hotly debated issues prior to the untimely death of President Levy Mwanawasa, was on whether the nation was going to go through a Presidential bye-election or general election. The following article published in the Post last week clears the constitutional mud (and comfirms the position that this blog has held from the very beginning).

Presidential by-elections will be held within 90 days, assures Kunda, The Post (Friday August 22, 2008) :

Justice Minister George Kunda yesterday assured the nation that all constitutional and legal provisions are being complied with following President Levy Mwanawasa's death.....Giving explanations on the constitutional provisions and the way forward in the succession process following the death of President Mwanawasa on Tuesday, Kunda assured that the presidential by-election would be held according to the Constitution.

He observed that following President Mwanawasa's death, numerous questions were being asked as to the present legal position of the government and the steps that need to be taken to move forward.

"It has, therefore, become imperative that I explain for the benefit of members of the public, who may have difficulties appreciating the legal position, the relevant constitutional provisions on who takes over when the President dies, the process leading to the assumption of office of the new President and related issues," said Kunda at a media briefing at his office after a Cabinet meeting.

"Under Article 38 (2) of the Republican constitution, if the Office of President becomes vacant by reason of his death the Vice President, or if the Vice President is absent or is unable due to physical or mental infirmity to discharge the functions of his office, a member of the Cabinet elected by the Cabinet shall perform the functions of office of President until a person elected as President assumes office."

He explained that Article 38 stated that if the office of President becomes vacant by reason of his death or resignation or by reason of his ceasing to hold office by virtue of Article 36, 37 or 88, an election to the office of President shall be held in accordance with article 34 within ninety 90 days from the date of the office becoming vacant.

"Ninety days refers to ninety calendar days. In this case, the ninety 90 days began to run on the 19th August, 2008 when President Mwanawasa died. The period of ninety days includes Saturdays and Sundays as well as public holidays. It also includes the days of national mourning," Kunda explained. "After due consultation between the Ministry of Finance and the Electoral Commission of Zambia, the date for the Presidential election will be announced in accordance with the provisions of the Constitution and Electoral Act."

Kunda explained that since the death of President Mwanawasa on Tuesday, Vice-President Rupiah Banda took charge of the office of President in an acting capacity pursuant to Article 38 (2) of the Constitution. "Neither the Constitution nor the Official Oaths Act provides for the Oath of office for an acting President," Kunda explained. "The Vice President Banda already subscribed to an oath of Office as Vice-President on assumption of that office. He becomes Acting President by virtue of his being substantive Vice-President. Accordingly, there is no legal requirement for the Vice-President to take an oath as Acting President."

He said Vice-President Banda would be Acting President until a person elected as President assumes office, within 90 days after the death of the President. He said acting President Banda could perform all the functions of the President except he could not dissolve the National Assembly nor could he, without the advice of Cabinet, revoke any appointment made by the President. He said in all other respects the Acting President had full presidential powers. He said the death of a sitting President did not entail a dissolution of Parliament, therefore there would be no general elections but just a presidential by-election.

Kunda further explained that whoever would be elected as President during the presidential by-elections would hold office for the remainder of the period before the next general elections in 2011.

He said the current National Assembly which was elected in 2006 shall stand dissolved at the end of five years of its life in 2011. "General elections will then be necessary. This is because Article 88 (7) states that: 'whenever the National Assembly is dissolved under this article, there shall be Presidential elections and elections to the National Assembly and the first session of the new Parliament shall commence within three months from the date of the dissolution'," Kunda explained. "For the avoidance of doubt, elections to be held following dissolution of the National Assembly will include elections to the office of President even if the person to be elected will have served for only three years."

Kunda dismissed assertions that the government was trying to manipulate the Constitution so that Vice-President Banda could continue acting as President until 2011. "We have no choice as a people of Zambia, we have to hold these elections; constitutionally we are bound to hold these elections and of course cooperating partners sometimes have supported us in holding these elections. So we believe in good governance, we believe in constitutionalism, therefore we are going to hold these elections within 90 days," said Kunda.

No comments:

Post a Comment

All contributors should follow the basic principles of a productive dialogue: communicate their perspective, ask, comment, respond,and share information and knowledge, but do all this with a positive approach.

This is a friendly website. However, if you feel compelled to comment 'anonymously', you are strongly encouraged to state your location / adopt a unique nick name so that other commentators/readers do not confuse your comments with other individuals also commenting anonymously.