Maravi

Banda is a good candidate for impeachment – Miyanda

Banda is a good candidate for impeachment – Miyanda
Written by George Chellah
Saturday, April 25, 2009 2:51:29 PM

PRESIDENT Rupiah Banda is a good candidate for impeachment, Heritage Party president Brigadier General Godfrey Miyanda stated yesterday. And Brig Gen Miyanda stated that former communications and transport minister Dora Siliya's proposed action for judicial review is premature and the remedy being sought is unclear.

Brig Gen Miyanda accused the government of not paying attention to the laws of the country.

"What now bothers me most about this regime is that they do not care what our laws say. Instead of the President desperately clutching onto an obiter [statement made in passing] by the tribunal about the Attorney General's chambers, he should have been addressing the impeachable constitutional breaches by his ministers and by himself," Brig Gen Miyanda stated.

"The tendency by the MMD government to breach the Constitution with impunity is becoming an irritating habit from which they need to be cured. Perhaps it is because our people choose to let things lie even when their very rights are seriously under threat."

He stated that ignoring Cabinet guidelines and other regulations and laws as was found by the judge Dennis Chirwa led tribunal may lead to far more serious misconduct.

"But the submission of the tribunal report to the President is timely as it coincides with the annual general meeting (AGM) of the Law Association of Zambia (LAZ); and coincidentally the President will be in attendance. I therefore call upon the LAZ, at their AGM, to address the bad practice of this regime, which claims to be a government of laws. Breaching constitutional provisions has become their trade-mark as the following few examples show. A few years ago the late President purported to amend the Republican Constitution by announcing at an MMD rally that deputy ministers in provinces would become ministers. The Constitution makes a distinction between ministers and deputy ministers," Brig Gen Miyanda stated.

"Articles 46 and 47 are instructive. If the government wished to raise the status of deputy ministers in provinces they were free to do so by bringing up an amendment in the National Assembly. This has never been done to this day although everyone in government refers to them as such. I raised this issue at the time it was said but as usual I was ignored.

"I am aware that last week a committee of the NCC [national constitutional conference] was sheepishly bringing this matter up but it is a mere cover-up of constitutional mischief by the government. It does not change the fact that the President acted unconstitutionally to purport to amend the Constitution at a public rally and not follow up with an amendment in Parliament!"

He stated that under this regime, Zambians have seen gross interference in the management of councils by all ministers of local government.

"Although we inherited the British local government system, we have introduced a provision in our written Constitution that defines the local government system expressly. Article 109 of the Constitution provides that: 'the system of local government shall be based on democratically elected councils on the basis of adult suffrage'. This essentially means that at no time shall there be any other person other than the elected councillors to make major policy decisions and supervise the management of councils," Brig Gen Miyanda stated.

"I contend that for the minister to suspend any council and appoint an administrator (as is the case of Chinsali and one in Southern Province) is to breach this Article because the system that is recognised in the Constitution is that of management by elected councillors. Any provision in an Act of Parliament that purports to grant powers to the minister to impeach councillors should be held to be ultra vires the Constitution."

He stated that it was unfortunate that President Banda has continued with the legacy of unconstitutional conduct.

"Recently, he boldly announced that as long as he is President he will never sign death warrants for those sentenced to death. By this statement he has improperly exercised his discretion, which amounts to a serious flouting of the Constitution. Although Article 59 grants the President a discretionary power to exercise or not to exercise mercy on a convicted person, such discretion is supposed to be exercised according to the Constitution. This requires that each and every case be considered on its own merit. To say in advance that all sentences of death, which will be presented to him in future have been decided in advance is to exercise his discretion capriciously and recklessly. In fact it is tantamount to declining the jurisdiction granted under Articles 59 and 60 of the Republican Constitution," Brig Gen Miyanda stated.

"The Prerogative of Mercy is covered under the said Articles 59 and 60. Specifically Article 60 establishes an Advisory Committee on the Prerogative of Mercy. This provision states inter alia, that: 'where any person has been sentenced to death for any offence, the President shall cause the question of the exercise in relation to that person, of the powers conferred by Article 59 to be considered at a meeting of the Advisory Committee'. It is mandatory for the President to refer the question of a death sentence to the Advisory Committee. Clearly, he is in breach of the Constitution and is a good candidate for impeachment."

He explained that the ball lands squarely in the lap of the Minister of Justice who is also Republican Vice-President.

"He endorsed the position taken by the President publicly and addressed this in the National Assembly, the very place where the Articles in question were made. He also kept quiet when the late President made the same pronouncement. LAZ must use the presence of the President and his Vice at their AGM to correct these illegalities and assist their brother the Vice-President. The Heritage Party calls upon LAZ not to go to sleep. Their mandate is to check these abuses and breaches. It is the very reason they exist, otherwise they will become an irrelevant white elephant," Brig Gen Miyanda stated.

"If the Act under which they exist has no provisions for stiff sanctions against their members who are partners in constitutional misconduct then the AGM is the appropriate forum to make resolutions that will result in lobbying for better provisions. One way of doing this is to elect lawyers who are not only good at law but do not practice partisan politics whenever considering national issues.

"We wish you a successful meeting. Remember, a good lawyer is never intimidated by clients or strangers who visit him or her; but is challenged by the desire to excel in bringing up pragmatic indigenous legislation, which will take our people out of the squalor that has remained with us since independence."

He also stated that Siliya has a constitutional right to go to court to seek redress for any wrong that she feels has been committed against her.

"However the manner in which she has proposed to do this after abruptly resigning, raises questions as to whether in fact she resigned in order to stop the alleged malicious statements against her; or it is an ingenious strategy worked out to preempt the President's final decision in the matter of the tribunal. In any case, I believe that she may have difficulty to establish what administrative action the tribunal has taken that requires review," Brig Gen Miyanda stated.

"Based on the verbatim reports by The Post, I have noted that the tribunal has not taken action or made any conclusive order because their mandate was to investigate and make recommendations to the President. The findings of the tribunal are subject to the President's further action, and the President has not yet acted. How do you challenge the tribunal for their opinions and recommendations whose finality depends on what the President should have decided? How can she eat her cake and keep it?"

He stated that Siliya's proposed action for judicial review was premature.

"But more ominously is what appears to have been a calculated scheme to pretend to resign in order to preempt the President's action. Who is involved in this plot to dribble the people of Zambia? Was the President privy to this idea or did he advise her to resign in order to ease pressure on him? After all he considered the tribunal not to be a simple thing, even though the tribunal had made it very simple by analysing the evidence for him and then eliminating two of the three allegations against her, leaving only one charge," Brig Gen Miyanda stated.

"Ms Siliya will have to struggle to show that the tribunal cannot make the recommendations that they have made. According to her she says that Article 54 was not part of the matters before the tribunal. Unfortunately she would have to show that the tribunal acted outside its terms of reference. In this case, like all tribunals appointed by the government, there is a catch-all term of reference that mandates the tribunal to make any other recommendation as they deem fit. This is the hurdle that Ms Siliya has to cross before she is granted leave to proceed."

Labels: GODFREY MIYANDA, RUPIAH BANDA

posted by MrK @ 1:53 PM