FORMER finance minister Situmbeko Musokotwane has submitted to the Constitutional Court that Article 63(2) (d) of the amended Constitution, provides for the National Assembly to approve all public debt before it is contracted.
And former minister of commerce, trade and industry Dipak Patel has insisted that government’s failure or neglect to obtain prior approval from Parliament before approving and signing any debt agreements is illegal and in breach of the Constitution.
This is a matter in which Patel has petitioned the ConCourt over government’s failure to obtain prior approval from Parliament before approving and signing any debt agreements.
In his witness statement filed in the Constitutional Court, June 5, this year, Patel who is also former Lusaka Central member of parliament, argued that from 2016, government had been mandatorily required, by the Constitution, to present all debt contraction agreements to the National Assembly for approval before Minister of Finance signs any such agreement.
Patel however, stated that to his knowledge, the true position of the debts contracted by government since 2016 was currently unknown as that information had been kept secret.
“The best that can be gleaned or gathered to have an idea of the current public debt situation in Zambia is by referencing information provided by outside institutions or the information contained in annual reports produced by various Government departments,” he stated.
Patel further stated that the Minister of Finance had never at any time given a true account of the correct and true figures of how much debt the government had contracted and no supporting documents had ever been released to the public or the National Assembly.
He further submitted that due to the failure by government through the Minister of Finance and Attorney General to follow the Constitutional requirements prior to contracting public debt, the true debt position of the country was not known because the correct figures of how much debt had been contracted since 2016 had never been provided to the National Assembly or to the Public.
Patel stated that the failure, neglect, or refusal by the Respondents to obtain prior approval from the National Assembly before approving and signing any debt agreements or instruments was illegal and in breach of the Constitution of Zambia.
And Musokotwane, who is also Liuwa UPND member of parliament, also stated in his witness statement that as a member of Parliament, his understanding of the Constitution as amended in relation to its provisions for procurement of public debt by government, was that the Constitution (Amendment) Act No.2 of 2016 gave the National Assembly supervisory power over the contraction of public debt by government.
He added that as a Parliamentarian who participated in the process of the enacted of the amended Constitution, Article 63(2) (d) of the amended Constitution, provides for the National Assembly to approve all public debt before it is contracted.
“That the Respondents have breached the Constitution and as a citizen, Member of Parliament and former cabinet Minister, I am entitled to defend the Constitution and I am therefore entitled to support the reliefs sought in the Petition filed before this Court. I therefore beg for the Court to grant the reliefs in the Petition,” Musokotwane submitted.
Meanwhile, Chama central UPND member of parliament Cornelius Mweetwa stated in his witness statement that in 2015, the National Assembly deliberated over the then National Assembly Bill No. 17 of 2015, which process culminated in the enactment of the Constitution of Zambia (Amendment) Act No. 2 of 2016.
He stated that as part of the process of enacting the Amendment Act, on October 15, 2015, as per usual parliamentary practice, the Bill was referred to the Committee on Legal Affairs, Governance, Human Rights, Gender matters and Child Affairs of which he was, at the material time, chairperson.
“After deliberating over the contents of the Bill, which included considering the submissions received from members of the public and other stakeholders, the Committee rendered its report to the National Assembly on December 3, 2015 when the then Honourable Minister of Justice moved a motion that the Bill be read a second time,” Mweetwa stated.
He stated that one of the objects of the Bill was, inter alia, to revise the provisions relating to public finance.
“When this objective is considered together with the contents of Section 6 of the Bill which contained the proposed amendment now comprised in Article 63 of the Amendment Act, and in particular Article 63 (2), it is clear that the drafters of the Constitution intended that Parliament was to oversee the performance of the executive in relation to the procurement of public debt,” Mweetwa stated.
He noted that during the deliberations of the Committee, no submission was ever received to the effect that the overriding power conferred upon Parliament to oversee the Executive as provided above was to be subjected to any limits at all.
“Neither did the House propose any limitations to the overarching jurisdiction conferred upon parliament to oversee the executive performance in the manner prescribed under Article 63 aforementioned. This can only lead to the conclusion that the provisions of the said Article were approved verbatim, without any addition, amendment or qualification by parliament in the exercise of its legislative function,” stated Mweetwa.