Congratulations to Dr. Musokotwane, the new Finance Minister
Dear Editor,
On my mind this morning is the appointment of Hon Dr. Musokotwane as Finance Minister.
To start with, let me congrat- ulate His Excellency HH on the pick of Hon Musokotwane for Minister of Finance. I have no doubt in my mind that he can deliver on the economic and financial objectives set out by His Excellency in yesterday’s tweet.
My main worry, though, is whether the President has not breached the Constitution on his very first public act of invoking the instruments of power that he received at He- roes Stadium a few days ago.
President HH was elected on the platform of constitu- tionalism and rule of law. It would therefore be extremely regrettable and deplorable if he threw the tenets of consti- tutionalism and rule of law under the bus on his very first public act of invocation of the instruments of powers.
Here is the basis for my worry:
Article 81(3) of the Constitu- tion provides that Parliament shall stand dissolved nine- ty days before holding of the general election. In the case of Simbakulya and 63 others, the Constitutional Court held, in simpler terms, that no per- son shall hold office of min- ister while Parliament stands
dissolved. Consequently Hon. Simbyakula and 63 others were ordered to pay back all monies paid to them as ministers while Parliament was dissolved.
Implicitly, all acts performed by a person masquerading as a minister while parliament stands dissolved are not only unconstitutional but illegal too, going by Article 2 of the Constitution.
In view of the foregoing, the key question that begs a candid answer is whether Parliament has officially commenced, fol- lowing the holding of the gen- eral election on August 12.
If the Session of Parliament has officially commenced, then it is Constitutional and legal for President HH to have appointed Hon. Musokotwane as a minister. In that case, the President has complied not only with the Constitution but case law too (Simbakulya and others).
Now, for the session of Par- liament to commence, we are guided by Article 81(1) of the Constitution. This Article pro- vides that the term of Parlia- ment shall be five years com- mencing from the date that the Members of Parliament are sworn into office after a general election and ending on the date that Parliament is dissolved.
The question is: following the general election held on 12 August, have ALL MPs been sworn into office? If the answer is “yes” then the Parliament
has officially commenced, ac- cording to Article 81(1). And in that instance, there is no problem with the appoint- ment by the President of Hon. Musokotwane as minister. And there is no problem with Hon Musokotwane subsequent as- suming office of Minister of Finance.
But if it is only Hon Mu- sokotwane who was sworn into office of Member of Parlia- ment, can Parliament be said to have commenced in accor- dance with Article 81(1)? These questions beg candid answers that can only be authoritative- ly provided by the Concourt.
The other issue of concern is regard to procedures pre- scribed by the National Assem- bly Standing Orders of 2016 on the commencement of the Ses- sion of Parliament, and swear- ing into office of Members of Parliament followed. Have the Standing Orders been com- plied with to the letter? This is a rule of law concern.
The other issue of interest is on who rendered legal advice to the President on the issue of appointment of Hon Mu- sokotwane. According to Ar- ticles 178 and 179 of the Con- stitution, there is no Attorney General and Solicitor General holding office in the Republic at the moment following the replacement of Former Pres- ident ECL by His Excellency HH. If the AG and SG have not yet vacated their offices per Articles 178 and 179, and ei-
ther of them rendered a legal opinion to President HH on the appointment of Hon Mu- sokotwane, is such advise con- stitutional and lawful?
Additionally, if the AG and SG were not involved, but since President HH has not fired presidential aides at State House, and the legal advice was rendered to the President by Counsel Lukangaba, the special assistant on legal mat- ters, can that advice be regard- ed as constitutional and law- ful? Or indeed, if it were party functionaries Hon Mwiimbu and Hon Mweetwa that ren- dered the legal advise on the appointment, can that advise be regarded to be constitution- al and legal?
Finally, considering that President HH was elected on the platform of constitution- alism and rule of law, and in view of constitutional and oth- er legal huddles that need to be sorted out before appointment of ministers; and considering further the urgency required to sort out the economic and the financial quagmire of the country, including budget is- sues, my view is that the Pres- ident should have in the inter- im simply appointed himself as Minister of Finance, and appointed Hon Musokotwane as Task Team Leader for Eco- nomic Revival Team.
Just my thoughts on the instruments of power for pamupando!
SINKAMBA PETER
Author
