The Attorney General has asked the Constitutional Court Registrar to assess the monies payable by former ministers who illegally stayed in office after the dissolution of Parliament.
In an affidavit in support of assessment of amount due signed by Principal State Advocate in the Attorney General’s Chambers Francis Mwale, Monday, the State lamented that three years after the judgement, the parties had not agreed on which specific monies were in question.
“The State seeks to give effect to this Honorable Court’s judgment but has challenges in both addressing the recovery of emoluments and or considering the question of indemnity as the exact emoluments (salaries, allowances and per diems) to be recovered have not been agreed by the parties hereto, three years after judgment,” stated Mwale.
“The 1st Respondent is desirous that the Honorable Registrar of this Honorable Court assesses the monies payable by the subject ministers as directed by this court.”
Since the ConCourt ordered former ministers to pay back the salaries they drew after illegally staying in office in 2016, there has been resistance from government and the individual ministers to pay back.
ConCourt judges had ruled that it was wrong for President Edgar Lungu to maintain the ministers in office; ordering them to vacate with immediate effect and pay pack their salaries to the Treasury; a decision which excited Zambians.
But Attorney General Likando Kalaluka filed a petition in the ConCourt in October 2017, asking it to reopen the case and review the judgement whilst Patriotic Front Secretary General Davies Mwila asked the ConCourt to set aside its judgement saying it is unjust and oppressive. Both these attempts to set aside the judgement failed but the resistance persisted with various individual former ministers vowing that they would not pay back because it was against their human rights.
And when quizzed about government’s seeming disrespect for a binding ruling during his press conference this month, President Lungu said unlike the question on his 2021 eligibility which was easy, the ConCourt’s ruling on former Cabinet Ministers to pay back monies illegally accrued in 2016 was questionable.
“…I don’t want to be at loggerheads with the courts of law, I respect them because of my background as a lawyer, and I know that we should not question some of these decisions, but this one is being questioned! We are really thinking hard. As I was coming here this morning, somebody was saying, ‘so, those agreements we signed, are they invalid because we were in office illegally?’ And I said, ‘that’s a jurisprudence question, that’s a very complicated one, it’s not for me!’ So, it is something we want to do, and I don’t think we want to go back to court and ask ‘what are we returning back?’ It’s a very complex,” said President Lungu.
“And this man says, ‘is it okay if we sued you, Mr President, for making us work illegally?’ I said, ‘yes, go ahead. But I will seek indemnity from the Attorney General because work was done for the Republic of Zambia, which comes to the same thing that, money will come from the State.’ So, for me, when you ask me, you confuse me because I wish we could pay back the money and end this one. But from what I am seeing…that’s why the delay has taken place in terms of consultation. Right now, we are trying to say, can we go to court so that the court can tell us which payments will be returned? Is it the full salary or the allowance when he went to go and negotiate that loan, is it also included? It’s not as simple as saying that, ‘Edgar Lungu is eligible to stand in 2021,’ this is more complex because there are people who are out of our control now, who are no longer ministers, and we cannot say ‘we are going to deduct from your salary because the Court has ordered that you surrender that money.’ Some of them are our enemies and they are saying, ‘let me know how much so that I return the money!’ But who will tell them? Me? I don’t know how much is supposed to be returned.”