SOLICITOR General Marshal Muchende has asked the Constitutional Court to dismiss, with costs, a matter challenging the constitutionality of swearing in nominated members of parliament before they could take oath in Parliament.
This is a matter in which governance activist Isaac Mwanza petitioned the Constitutional Court, seeking among others, an interpretation on whether a person can legally be appointed to head a ministry established and or merged and also perform the functions of that office before approval by the National Assembly.
Mwanza questioned whether, in terms of Article 81 of the Constitution, a person can legally be appointed to an office of minister and perform ministerial functions after the dissolution of Parliament and before its commencement.
However, when the matter came up for hearing, Thursday, Muchende asked the Constitutional Court to allow him to file his arguments in open court as he was out of office at the time the action was filed in court.
And according to the arguments filed, Muchende said according to Article 1116(1) of the Constitution, it was legal for someone to be appointed to the position of minister and perform ministerial functions before the opening of the National Assembly.
He argued that the constitution does not require the President to appoint members of parliament that have been sworn in the National Assembly and therefore added that it was enough that the appointed person must have been declared by the returning officer as a duly elected member of parliament.
“The purpose of swearing and taking oath in National Assembly is in respect of the legislative functions of a member of parliament in the National Assembly but that is without prejudice to any executive role that the President may task with a duly elected member of parliament which also requires him or her to take oath under Article 260 of the constitution,” Muchende argued.
On whether the President could terminate the employment of a public officer without just cause, the Solicitor General argued that Mwanza had no locus standi to raise such an issue because he had not stated that he was removed from any office.
“We see neither a cause of action nor locus standi for the applicant to raise that issue because he has not deposed in his affidavit that he was removed from any office. Borrowing from the words of Muyovwe JS…the applicant has behaved like a meddlesome private attorney general and has taken out a suit which is the preserve of other persons if at all anyone was removed from office without just cause,” he said.
“The term just cause refers to a serious wrong that merits a decision for removal from office. If anyone was removed from the office without just cause, contrary to the Constitution, it is that person to come to court and not the applicant.”
Muchende argued that it was also problematic that Mwanza could cherry pick a provision of the constitution and read it in isolation from the rest of the provisions when the court ruled that the words or provisions in the constitution or statute must not be read in isolation.
He prayed for dismissal of the matter with costs, arguing that Mwanza had moved the court wrongly on many issues against the guidance that had been given by the court several times as to the mode of commencement.
In this matter, Mwanza has further sought interpretation as to whether in terms of Article 69, as read together with Article 81, of the Constitution of Zambia, a person who has not been sworn in as a nominated MP can be sworn in as a Minister and perform ministerial functions and whether, in view of article 173(3) of the Constitution, the President or any other appointing authority can terminate the employment of public officers without just cause and due process.
He also wants to know whether the President can institute, create or abolish a public office without the recommendation of the relevant service commission and whether a Presidential abolishment of an office in the public service with a substantive holder is constitutional, legal and valid.