By KETRA KALUNGA
THE swearing in of ministers in newly created and merged ministries is unconstitutional, null and void, and may have to be repeated once ratified by Parliament, constitutional lawyer, John Sangwa has said.
Mr Sangwa said the ministers sworn in had also violated the constitution, by compounding unconstitutionality knowing that the ministries had not been established, and that it was not automatic Parliament would approve the action.
But Swaziland based Research Professor of Constitutional and Human Rights Law, and Legal Advisor to the United Nations, Professor Cephas Lumina said there was no breach of the Constitution as President Hichilema had a 21 day window to seek approval by parliament to seek ratification of merger or creation of new ministries and subsequent appointment of ministers.
Prof Lumina said Article 94 and 95 allows the President to seek Parliamentary approval after the act or measure (merger or dissolution of any ministry).
“The President must have something to present to parliament,” he said.
Mr Sangwa however said Article 94 (1) was not a waiver for the President to dissolve, merge or create new ministries before ratification by Parliament, because Parliament can refuse to ratify, in which case the matter goes to the Constitutional Court which could also refuse, in which case the President would have to obey.
He said Article 94 (1) only stipulates the 21 day period in which the ratification must be done.
Mr Sangwa said in an interview that the move taken by President Hichilema was illegal and makes the new ministries null and void because they had not been approved by Parliament as per constitution.
He said President Hakainde Hichilema should have first sought ratification by Parliament before swearing in ministers in the new ministries.
Mr Sangwa said Article 92 (2)(d) mandates the President to establish, merge and dissolve Government ministries, subject to the approval of the National Assembly.
Prof Lumina however insists that Article 92(2) of the Constitution must be construed in the light of the Constitution as a whole and in particular Article 94(1) which outlines the procedure for parliamentary approval.
Article 94 (1) states “where the performance of an executive function is expressed by this Constitution to be subject to approval by the National Assembly, the National Assembly shall, in the sitting next after receipt of the request for approval, give the approval within twenty-one days of the commencement of the sitting”.