14 September 2016

Zambia: Constitutional Court Shows It Is Strongly Independent

Photo: Zambia Reports
Zambia's parliament.
analysis

Until almost the last minute, high-ranking foreign guests as well as ordinary Zambians were in the dark: would the presidential swearing-in ceremony for Edgar Lungu go ahead on Tuesday this week as scheduled? It all depended on the courts.

It was touch and go: then, just hours before the event, came news that the High Court judge approached by the opposition to stop the ceremony had declined to grant the application, saying that as a single judge he lacked jurisdiction in the matter. And so Tuesday's planned swearing-in took place after all, with the opposition United Party for National Development promising that this was not the end of the matter and that further court challenges could be expected.

Zambia's contentious 11 August elections have been dominated as much by the courts as by vote-casting. A new constitution, finalised before parliament was dissolved for the elections, was supposed to have made the polls and their results more stable. Among others, it provided for a two-stage process if required: a presidential candidate would have to win at least one vote more than 50% of the ballot in order to avoid going to a second round run-off.

But what actually happened severely tested the efficacy of this provision. The Patriotic Front's Lungu, who won the last elections by barely 28 000 votes, won 50.35% this time. His main rival, in this election and the last, Hakainde Hichelema, won 47.67% of the votes. One of the other provisions of the new constitution is that a new President cannot be sworn in while a court challenge to the results is pending, which is why Hichelema's party moved smartly with their urgent application.

The elections sorely tried the new constitutional provisions as well as the electoral system, and with the two main contenders, who finished in spitting distance of each other last time, still running neck and neck in the polls this time round, it's still unclear how stable the new government will prove to be.

Fall-out from the elections will no doubt dominate news from that country for some time, and among the related issues to be considered is a series of crucial court decisions related to the polls. One of them in particular, Katuka v Attorney General, is a stunning decision by Zambia's Constitutional Court, a decision that shows South Africa's Constitutional Court is not alone in delivering judgments demonstrating strong independence in the face of the other arms of government. Nor is South Africa's Constitutional Court alone in telling top officials - in this case President Jacob Zuma who was found to have permitted gross overspending on his private residence at public expense - that they must pay back the money.

During the recent Southern African Development Community Lawyers Association meeting in Cape Town, news of the Katuka decision was a strong talking point among delegates from across the region, and rightly so. Nothing like it has been seen before.

The case was brought by the secretary general of Hichelema's United Party for National Development, Steven Katuka, with the Law Association of Zambia as co-petitioner. Though their challenges differed somewhat, the combined issue was whether Cabinet and Provincial Ministers were validly continuing in office following parliament's May dissolution to allow for preparations for the August elections. According to the applicants, the new constitution made no provision for these officials to continue in office once parliament had been dissolved. The relief they sought from the judges was a declaration to this effect, coupled with an order that salaries and other payments made to the Ministers since the dissolution of parliament should be repaid.

Katuka and the law association won their battle, with the five member court delivering a unanimous decision. The court said the central issue it had to decide was whether the continuation in office of the Vice-President, Cabinet Ministers and provincial Ministers was ultra vires the new constitution and thus illegal. And if indeed their continued stay was unconstitutional, should the court order them to pay back the salaries and allowances they have been receiving?

The court said it was alive to the importance of ensuring that there was no vacuum created in government, and thus avoiding a potential constitutional crisis, and found a valid provision in the constitution for the Vice-President continuing in office.

But the position of Cabinet and Provincial Ministers turned out otherwise. Investigating the history of key elements in the new constitution, the judges noted that at one stage there was a proposal that Ministers should be appointed from outside parliament. In the end, however, after the intervention of the Minister of Justice, it was decided that Ministers should be drawn from MPs. Thus, said the court, the pre-condition to qualify for a ministerial position was that one had to be an MP. While the tenure of office of an MP was also clear, the court had to consider whether, when parliament was dissolved, 'those holding ministerial positions can continue to occupy their portfolios until after the general elections when the President-elect assumes office'.

The judges said when they considered the matter they were left with the question: '(How) can Ministers who were appointed from amongst the Members of Parliament, continue in office when the pre-condition of their appointment is no longer there?'

They concluded that if the intention was that the Minister should continue in office even though all other MPs effectively lost their jobs when parliament was dissolved, then 'Parliament ought to have made express provision ... to the effect that, notwithstanding the dissolution of the National Assembly, the Ministers and Provincial Ministers would continue ... until the President-elect assumed office. In the absence of such express provision, the Ministers ought not to have continued in office following the dissolution of Parliament on 11th May, 2016'.

The judges noted apparent internal contradictions in the law and added, 'We can only enjoin Parliament to address this ambiguity'. Declaring that the continued stay in office of the Ministers was 'contrary to the spirit of the constitution as amended, as the Ministers do not qualify to continue to hold office as the basis of their appointment to those offices no longer exist', they ordered that the Ministers 'should forthwith vacate office'.

Similarly the position of the Deputy Ministers raised problems. The office of Deputy Minister, provided for in the 1991 constitution was not maintained in the current version: 'the constitution as amended does not contain any provision regarding the position of Deputy Minister.' Previous provisions on the position were repealed, without re-enactment of a similar provision and 'the effect is that the office of Deputy Minister no longer exists under the constitution as amended'.

Was their continued stay in office legally supported when the constitution as amended 'has not established their office'? No, ruled the court. 'We are ... of the firm view that ... the Deputy Ministers were to continue in office only until the dissolution of parliament on 11 May, 2016.' And since the office of Deputy Minister no longer exists under the amended constitution, Deputy Ministers 'have no basis to hold on to their office which was terminated by operation of the law when parliament was dissolved. ... Their continued stay in office after 11 May is therefore unconstitutional, null and void.'

What about their salaries? 'We order that the (respondents) do refund to the state, all the salaries and allowances which they have so far been paid' since the dissolution of parliament.

The judges said the Ministers, Deputy Ministers and Provincial Ministers were aware of the effect of the amendments to the constitution on their positions 'which was that they would cease to hold office upon dissolution of Parliament.' 'Against this backdrop, we do not see any injustice that will be cause to them by our order that they should pay back the emoluments they received' since the dissolution of parliament.

'In our view, they have no legitimate expectation to receive such payments.' As to the state's argument that the court take judicial notice that these officials had continued to 'render services', it did not hold water. The court said that if the Ministers had been appointed form outside parliament as originally proposed, then the state's argument might have carried some weight. But as things stood, there was no question but that the money had to be repaid.

To the extent that the judgment is based on flawed drafting the new parliament will surely fix the loopholes, but given Zambia's vigilant and astute legal community, any attempts to repay the Ministers the salaries they must return will no doubt result in another flurry of legal action.

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