4 March 2018

Zambia: Chipenzi Backs Impeachment Motion

Political activist MacDonald Chipenzi has weighed in the impeachment motion debate highlighting the pros and cons of the planned move by the opposition UPND.

Chipenzi has detailed the permutations within the constitution about the impeachment.



I have heard and read a number of people and stories accusing those who have indicated the desire to move an impeachment motion against President Lungu as either committing treason or indeed wasting their time because the chances of it succeeding are very limited.

I will not delve into those details but suffice to say that surprisingly, none of them have argued on whether or not an impeachment process is constitutionally and legally allowed under the current Zambian laws. In other words, those who have accused the supposed movers of this motion have not asked the extent to which the motion is legal and constitutional in Zambia. Last time the country witnessed this talk and action was during late Levy Patrick Mwanawasa's early days of his reign.

In Zambia, an impeachment process is an operation of law i.e. it is backed by the republican Constitution and those who have taken this path to move an impeachment motion in the National Assembly against the sitting President are actually operationalising Article 108 and the law in general. They are doing so within the succinct of the Constitution. They are trying to test the provisions of Article 108 of the republican Constitution as amended in 2016 and assented to, by President Lungu.

Therefore, an impeachment is a process by which a legislative body [National Assembly] formally levels charges against a sitting President. However, this does not necessarily mean an automatic removal from office of that President on whom the charges have been leveled against but just a formal statement/list of charges similar to those on an indictment in criminal law.

According to Article 108 (1), it succinctly puts the impeachment process thus "a Member of Parliament, supported by at least one-third [56] of the Members of Parliament, may move a motion for the impeachment of the President alleging that the President has committed--a violation of a provision of this Constitution or other law; a crime under international law; or gross misconduct."

The proposed impeachment motion against President Lungu will be done within the law and there is no need to ostracise those exercising their constitutional rights, may those who do not want to since they are summoned by Article 2 which states that "every person [members of parliament inclusive] has the right and duty to defend this Constitution; and resist or prevent a person [a sitting President inclusive] from illegally abrogating this Constitution... "

Further, the argument that it may not succeed to achieve its ultimate goal of removing the President from office may hold water but the likelihood of it being introduced and debated in the National Assembly is extremely very high. Perhaps, this is the intention of the supposed movers. This is so because the movers seem to have the necessary numbers to introduce and put the impeachment process into motion in the National Assembly for debate.

In line with Clause (2) of Article 108 which stipulates that "the motion, moved in accordance with clause (1) shall specify the particulars of the allegation" against the President, the movers of this motion may have some grounds necessary for leveling charges against President Lungu. This is so because since he assumed office, he seems to have breached the constitution and other laws, time without number.

So in terms of specifics, the charges on the violation of the Constitution and other laws may stand solidly with specifics. What is not clear, however, is the actual success of the motion's final intention-to have the President probed by a tribunal on the allegations and subsequently be removed from office, if that is the intention of the supposed movers.

The introduction of an impeachment motion in the National Assembly is the first stage to removing a perceived erring sitting President and once an impeachment motion is either successfully or unsuccessfully argued, the motion is subjected to a vote which vote puts the sitting President right in face with the possibility of conviction and dents his reputation both locally and internationally.

If the 2/3 members of the National Assembly voted for the motion, the removal of the President from office begins. The Speaker of the National Assembly informs the Chief Justice of the adoption of the resolution to impeach the President. The Chief Justice, in consultation with the Judicial Service Commission, sets up a tribunal to probe the allegations against the President.

Others have argued by advancing the issue of numbers of members in the National Assembly apportioned to those perceived to be for the motion [opposition inclusive of some independents] and those against the motion [ruling party and some independents]. The current composition of the National Assembly is 169 members inclusive of the Vice-President, Speaker and first Speaker.

On paper, there are 77 opposition MPs combined and independents inclusive out of the 169 Members of the National Assembly while the PF, on papers, has 92 inclusive of the Vice-President, the Speaker and First Speaker save that the Speaker has no voting powers [Art 78 (2) (a)]. The 2/3 members of the National Assembly gives us 112 MPs out the 168 members with voting powers while 1/3 is 56 MPs exclusive of the Speaker are required to pass a resolution and introduce a motion to impeach the President in the National Assembly respectively.

However, we must take cognizance of the provisions of Articles 77 and 78. Article 77(2) guides that "the proceedings of the National Assembly shall not be invalid due to a vacancy in its membership" [in the case of Keith Mukata] while Article 78 (1) stipulates, "except as otherwise provided in this Constitution, a question proposed for decision in the National Assembly shall be determined by a majority of the Members of Parliament present and voting" [precedence at the extension of the State of Threatened Public Emergency]

What we need to determine, nonetheless, is the meaning of 1/3 and/or 2/3 of the members of the National Assembly in an event that only 130 members are present at the time the motion is introduced and resolution is supposed to be made. Does it mean only those "present and voting" in the National Assembly as demonstrated during the extension of the State of Threatened Emergency in July 2017 will participate in making this resolution or 1/3 and/or 2/3 of the members means the total composition of the National Assembly i.e. 169 members of the National Assembly? Once this is determined, then we can start arguing on numbers.

For now, whether the motion succeeds or not, it would have formally laid charges against President Lungu which may be a dent on his name, presidency and likely to be book lifted in future after leaving office in an event of the new government's desire to remove his immunity. Those charges which would remain black and white in the parliamentary hasards would be active and redeemable at the right time.

Therefore, an impeachment is not a treasonous process or act but an operation of the law and constitutionally permitted.There is no need to threaten anyone exercising his/her constitutional rights or mandates. Instead, there is every need to censure those who want to abate the breach of the constitution.


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