Saturday, January 14, 2012

Malila ready to defend Scott's appointment

Malila ready to defend Scott's appointment
By Masuzyo Chakwe and Bright Mukwasa
Thu 12 Jan. 2012, 13:59 CAT

ATTORNEY General Mumba Malila says his office is ready to receive and tenaciously defend any court process against the appointment of Dr Guy Scott as Republican Vice-President.

And political analyst Sishuwa Sishuwa has questioned the sincerity of George Kunda over his intentions to drag Republican Vice-President Guy Scott to court over his eligibility to occupy that office.

In a statement yesterday, Malila stated that it was preposterous to argue that Dr Scott did not qualify to hold office as Republican Vice-President because his parents may not be Zambian by birth.

Malila was commenting on George Kunda's statement on Radio Phonenix's Let the People Talk programme on Tuesday when he questioned Dr Scott's eligibility for the position of Vice-President.

But Malila stated: "Article 45 of the Constitution which sets out the qualifications of the Vice-President are very clear and do not require one to be a constitutional law expert to understand them. The qualifications for a Presidential candidate as detailed in Article 34(3) which include the parentage clause do not apply to a Vice-President," he stated.

"In the event that there is a vacancy in the office of the President, in terms of Article 39 of the Constitution, the Vice-President could act as President even if he may not meet the qualification for election to the office of President. What he cannot do is to stand for election as President."

He stated that it was unfortunate and highly disconcerting that a misinterpretation of elementary provisions in the Constitution could be attributed to someone who was once held in high esteem by the legal profession in the country.

Malila stated that politicians would do well to avoid making pedestrian legal arguments that might alarm the public that there could be a constitutional crisis when none existed.

Kunda, the former Republican vice-president and Muchinga member of parliament, said the MMD would summon its legal committee to ascertain if Vice-President Scott whose parents were not Zambian by birth or descent was eligible to occupy that position.

But President Michael Sata dismissed Kunda's argument.

"Tell George Kunda, we are waiting for him. We will sort him out. He is the dullest lawyer in central Africa; we shall sort him out," said President Sata on arrival from South Africa on Monday where he had gone to attend the ANC's 100th anniversary.

And Sishuwa has urged Kunda to activate and employ his historical consciousness after failing to rightly advise former president Rupiah Banda that he was not qualified to contest for presidency under the current Zambian laws.

Banda contested the 2008 presidential by-election and the 2011 general election despite not meeting the constitutional requirement that states that a presidential candidate's parents must be Zambian by birth or descent.

Commenting on former Republican vice-president Kunda's statement on Radio Phonenix's Let the People Talk programme on Tuesday that the MMD will summon its legal committee to ascertain if the current Vice-President, whose parents are not Zambian by birth or descent, is qualified to occupy that office, act as Republican president in the absence of President Michael Sata, and stand for president in future, Sishuwa said Vice-President Scott was duly appointed for the position.

In a statement made available to The Post, Sishuwa, who is also a doctoral student of Modern History at Oxford University, took a swipe at the former Law Association of Zambia president and questioned his understanding of the law.

"Now, when someone like George Kunda - a lawyer and a State Counsel for that matter, current MMD chairperson for legal Affairs, former Attorney General, former Minister of Justice and former Republican vice-president - stands on a platform and declares not only his failure to read, understand and interpret the law, but also his absolute ignorance of important constitutional provisions, all of us should get very concerned," he said.

"Article 45(2) of the current constitution states: ‘The Vice-President shall be appointed by the President from amongst the members of the National Assembly.' Where is the parentage or nationality issue here? Clearly, President Sata followed the law correctly when appointing Scott to the position of Vice-President."

Sishuwa noted that according to this clause, the only qualification that is required of any candidate earmarked for appointment to the position of Vice-President is that she or he should be a member of the National Assembly, a requirement that Scott fulfils only too well.

"If Scott was not a member of parliament, Sata could have nominated him to parliament first to ensure that he qualifies or meets this constitutional provision," he said.

Sishuwa further observed that just like it was the prerogative of the President to appoint anyone to the position of Vice-President, the Head of State also has the discretion to appoint anyone of his choice, besides the Vice-President, to act as President when he is outside the country, provided the constitutional requirements stipulated in Article 39(1) of the current Constitution are satisfied.

"Article 39(1) of the Constitution states: 'Whenever the President is absent from Zambia or considers it desirable so to do by reason of illness or for any other cause, he may by direction in writing, authorise the Vice-President, or where the Vice-President is absent from Zambia or is incapable of discharging the functions of President, any other person, to discharge such functions of the office of President as he may specify, and the Vice-President or such other person may discharge those functions until his authority is revoked by the President'," he said.

Sishuwa argued that the key word in the above clause is incapable.

"When is the Vice-President considered incapable to discharge the functions of President? Is it when he or she says so or when the President deems it as such? If the Vice-President says to the President: ‘Your Excellency, although I am in the country, I am not able to act as President in your absence because of other commitments and so, please appoint someone else,' does that qualify as incapacity?" he asked.

"Clearly, there is a lacuna in our law here with regard to the definition of incapacity to act and I hope those who are working on the new constitution will take note."

He argued that Vice-President Scott qualifies to act as President under the current arrangement.

"In fact, though Scott does not qualify to stand for President, he qualifies to act as President under this article, just like any other person including George himself if Sata appointed him. An acting president is not elected or sworn in. He or she is appointed by the President or, in the case of incapacity or death of the president while in office, by cabinet," he said.

"President Sata is actually free and constitutionally entitled to appoint Scott as acting president in his absence. We should note that in our current political system where the vice-president is not elected by the people as a running mate to the president and with distinct duties independent of those of the office of the President, a vice-president is simply an elevated cabinet minister. In other words, the functions of that office can be carried out by any cabinet minister, provided the President entrusted them with such powers. Nonetheless, perhaps conscious of Scott's parentage - which, as I have said, does not disqualify him from acting as president - and of minds like those of Kunda, Sata opted to pick Minister of Finance Alexander Chikwanda to act in his absence. What is there to investigate or take to the High Court since Scott has never acted as President in the first place? And has Scott told Kunda that he is intending to stand for president under the current constitution anytime soon?"

Sishuwa urged Kunda to start addressing himself to his former boss, Rupiah Banda's perjury case.

"It is a well-known fact that at least one of Rupiah's parents originated from Malawi, yet Kunda, who served as Minister of Justice under the Levy Mwanawasa administration and later combined that position with that of Republican vice-president under Banda, failed to advise the latter that he was not qualified to stand for the office of president in 2008 and 2011."

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