Fire Chitotela, LAZ tells Lungu

The Law Association of Zambia (LAZ) has asked President Edgar Lungu to fire Infrastructure Development Minister Ronald Chitotela, saying keeping the minster in office while facing corruption charges defeats morality, integrity and the fight against corruption.

But LAZ has also observed that there is no law in Zambia that makes it mandatory for the President to fire ministers who are arrested or charged with corruption.

Responding to a News Diggers press query, the Council of the Law Association of Zambia, LAZ argued that having Chitotela continue serving as minister would make it almost impossible for the prosecution to take a course of fair justice.

LAZ explained that the proposal to have Chitotela suspended or dismissed was not meant to punish him but to ensure that the investigations and prosecution proceeded without interference.

“It is our considered view that the rule of law and the national values and principles of good governance and integrity in the discharge of public functions enshrined in our constitution are not and cannot be enhanced by letting a minister to continue serving when he is subject of prosecution. It is for this reason that a number of provisions applicable to public officers require an officer subject of prosecution to be placed on suspension. The purpose of the suspension is not to discipline or impose a penalty on the accused but to ensure sound and proper administration, good governance and above all public interest,” stated the Council.”

“It is also to ensure that the investigations and prosecution proceed unhindered and without actual or perceived interference. Further, dismissing a sitting minister facing prosecution does not offend the constitutionally recognized right of presumption of innocence. It is therefore the position of LAZ that the President should indeed consider relieving honourable Chitotela of his duties as not doing so does not support the fight against corruption, which the President has on numerous occasions publicly supported.”

LAZ, however said the President was not mandated by law to fire Chitotela.

“Following the arrest and charging of Hon Chitotela, certain sections of society called for the dismissal of the minister by the President. However, the President refused to dismiss the minister and in aid of his decision cited Article 18 of the Republican constitution, which presumes an accused person innocent until proven guilty by the courts of law. As law Association of Zambia, we have followed this issue and surrounding debate with keen interest. In doing so, we have had occasion to peruse the constitution of Zambia as amended by Act No. 2 of 2016, chapter 1 of the Laws of Zambia; the Anti- Corruption Act, 2012, the Parliamentary and Ministerial Code of Conduct Act, Chapter 16 of the Laws of Zambia; and the Interpretation of the General Provisions Act, Chapter 2 of the Laws of Zambia. Given the framing of Article 116 of the Constitution, which among other things, deals with the appointment of ministers, we hold the view that the arrest and charging of a minister for any criminal offence does not cause a vacancy in the office of Minister,” the Council explained.

“A Minister serves at the President’s pleasure. Under any circumstances, it is only the President who can remove a minister from office. However, the constitution also gives any minister the option to resign at any time.Our perusal of section 18 of the Parliamentary and Ministerial Code of Conduct Act also reveals that there is no provision which compels the President to dismiss a minister on account of being arrested or facing prosecution. However, the said section 18 further provides that nothing stops or limits the right of a minister to resign as Minister. However, given the spirit with which the constitution is couched, the mandate of the Anti-Corruption Commission, the level of responsibility and power that a minister has, it is our considered view as LAZ that it is not appropriate for honourable Chitotela to continue serving as Minister whilst facing criminal charges and appearing in court pending the determination of the matter. We also hold the view that prosecution of a sitting minister in the courts of law cannot be effective. We therefore call upon honorable Chitotela to seriously reflect on his abilities to effectively and in good conscience run the affairs of his ministry at the same time defend himself in court. We firmly believe that under the current circumstances, the minister ought to resign from public service.”

On 5th February, 2019, The Anti-Corruption Commission (ACC) arrested and charged Chitotela with two counts of concealing property suspected to be proceeds of crime, contrary to Section 71 (1) of the Forfeiture of Proceeds of Crime Act, Number 19 of 2010.

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