Teddy Musonda
INTRODUCTION
It is common cause that on 5th January, 2016 the amendment to the Constitution (herein the Constitution)[1] was assented to and became operational. The amendment to the Constitution (1991) introduced significant legal reforms, some of which led to the legal issues under consideration in this case. Moreover, on the same date (5th January, 2016) The Constitution of Zambia Act[2] was assented to and became operational. The Act served as a transitional legislation to provide for the saving and transition of laws from the Constitution before its amendments to the that with the new amendments. This piece of writing will examine the contentious issues arising from the case, with particular focus on (i) the immediate status of Deputy Ministers under the latest Amendment to the Constitution, (ii) the interplay between the office of Vice-President, Cabinet Ministers, Provincial Ministers and the dissolution of the National Assembly.
LEGAL ISSUES RAISED
For the purpose of a comprehensive discussion, the legal issues arising from the case will be divided and discussed respectively as follows;
- Whether by virtue of the abolishment of the office of Deputy Minister under the latest amendment Act, holders of the office of Deputy Minister unconstitutionally held office beginning 5th January, 2016?
- Whether the Vice President unconstitutionally held and continued to hold office after the dissolution of National Assembly on 11th May 2016?
- Whether the Cabinet Ministers unconstitutionally held and continued to hold office after the dissolution of National Assembly on 11th May 2016?
LEGAL ARGUMENTS RAISED
Legal issue 1
Petitioners’ Arguments: Steven Katuka (1st Respondent) did not register any opposition against the first legal issue, while Law Association of Zambia (2nd petitioner) contended that, since the latest amendment to the Constitution did not provide for the office of Deputy Minister, holding the office became unconstitutional as soon as the latest amendment came into force. The 2nd petitioner conceded that according to Section 7 (2) of the Constitution of Zambia Act which reads as follows:
“A person holding the post of Vice-President, Minister or Deputy Minister shall continue to hold that position under the Constitution until that appointment is terminated by the President in accordance with the Constitution.”
Deputy Minsters would continue to exist until the president terminates them. However, the 2nd petitioner argued that this provision was null and void due to its inconsistence with the latest amended Constitution which did not provide for the existence of the office of Deputy Minister. In essence, the argument advanced by the 2nd petitioner was that Section 7 of the Constitution of Zambia Act could not be relied upon, as the Constitution made no provision for the existence of the office of Deputy Minister, consequently, it was contended that the President could not terminate an office that was not recognized under the Constitution. This was the gist of the 2nd petitioner’s argument pertaining to the first legal issue.
Respondents’ argument: the gist of the respondents’ argument on the first legal issue was that despite the abolishment of the office of Deputy Minister, the office still subsisted by virtue of Section 7 of the Constitution of Zambia Act which served as a transitional legislation. The respondents further contended that the abolishment of the office of Deputy Minster could only be effected by the termination by the President, and in the absence of a termination by the President, the abolishment of the office would automatically take effect upon the President-Elect taking up office after the general election. which were to be held on 11th August 2016. Therefore, it was argued that the Deputy Ministers continued holding to their offices after 5th January, 2016 was not unconstitutional.
Legal issue 2.
Petitioners’ Arguments: the 2nd petitioner argued that according to a reading of Article 72 and Article 81(3) read together with Article 111(4) of the Constitution, the office of Vice President remains vacant after dissolution of parliament. Article 111(4)(c) of the Constitution provides for the cessation of the office of the Vice President in line with Article 81, 107 or 108. With particular reference to Article 81, specifically under Article 81(3) which reads: “Parliament shall stand dissolved ninety days before the holding of the next general election,” it was posited that the Vice President, being part of Parliament, is equally dissolved and the office remains vacant till after the general election. It was posited that the only offices that survive the dissolution of Parliament are (i) the Speaker of National Assembly, (ii) the Deputy Speaker of National assembly, and (iii) the President. The petitioner anchored this preposition on Article 72(1) of the Constitution which supports the Speaker’ and Deputy Speaker’s survivor, and Article 106(2) of the Constitution which explicitly provides that the president shall hold office till the next President-elect assumes office.
The petitioner conceded that Article 111(2) of the Constitution stipulates that the Vice President shall remain in office until the President-Elect is assumes office. However, they contended that this provision was intended to take effect only apply after the 2016 general elections and, therefore, should not be applied retrospectively to the office of the Vice President in casu, as the provision under Article 111(2) of the Constitution was not in existence when the then-Vice President assumed the office. In essence, it was argued that, since the Vice President was appointed from within Parliament rather than elected, the office should be declared vacant upon the dissolution of Parliament.
The 2nd Petitioner did not register any opposition with regard to the second legal issue.
Respondents’ Argument: the respondents argued that the Vice President survives the dissolution of Parliament. Having the office of Vice President vacant with the dissolution of Parliament was argued, would create a power vacuum. The respondents relied on Section 7(2) of the Constitution of Zambia Act which provided in part that the office holder of the office of Vice President would continue until the President terminated them in line with the Constitution. It was argued that this provision intended to have the office of the Vice President – Immediately before the amendment – to be treated as an office constituted under the amended Constitution.
Legal Issue 3
Petitioners’ Arguments: Both petitioners’ arguments were the same. In essence, they argued that Cabinet Ministers hold their Cabinet portfolios by virtue of being Members of Parliament and that they cannot be a Cabinet Minister without first being elected or nominated as Member of Parliament. Therefore, the continued occupation of the office of Cabinet Minister after the dissolution of parliament was argued, to be unconstitutional. Solace was also sought under Article 114 of the Constitution which provides for Cabinet function. It was argued that Cabinet Ministers cannot exercise their function in the absence of Parliament, therefore, they hold no purpose in retaining their offices after the dissolution of Parliament.
Respondents’ Arguments: the respondent argued that Cabinet Ministers hold on to their offices even after dissolution of Parliament. The respondent based this argument on Article 116(3)(3) of the Constitution which provides that the office of Minister becomes vacant if ‘another person assumes the office of President.’ It was contended that this provision means that a Cabinet Minister tenure extends until the President-Elect ‘assumes’ office.
HOLDING
Legal Issue 1
With regards to the first legal issue, the Constitution Court held that the stay of Deputy Ministers in their respective offices from 6th January, 2016 (the day after the amendment was enacted) to 11th May, 2016 (the day Parliament was dissolved) was not unconstitutional. However, failure to vacate their offices after 11th May, 2016 was unconstitutional. The Court at page 77 stated as follows:
“Taken in that light, it logically means that the transition period with respect to the office of Deputy Ministers could at most, only go up to the dissolution of Parliament if not sooner terminated by the President. This shows that the transition period envisaged in Section 7(2) of Act NO.1 was from the date of the coming into effect of the Constitution as amended to the dissolution of Parliament. It cannot be stretched to continue beyond the dissolution of Parliament.”
Essentially, the Court held that as Section 7(2) of the Constitution of Zambia Act provided that holders of the office of Deputy Minister would continue to hold office until terminated by the President. It was therefore, the intention of the legislature to allow the office of Deputy Minister to continue after 5th January, 2016 despite its abolishment. However, the office would automatically terminate with the dissolution of Parliament, as being a Member of Parliament is a prerequisite for being a Deputy Minister.
It was thus held that the holders of the office of Deputy Minister held the office unconstitutionally after 12th May, 2016 – being the day after the dissolution of Parliament. The Court ordered the Deputy Ministers to repay all the salaries, allowances, and benefits they received from the office between 12th May, 2016 till the date of the judgment.
In response to the 2nd petitioner’s contention that Section 7(2) of the Constitution of Zambia Act which provided for the continued existence of the office of the Deputy Minister was null and void to the extent of its inconsistence with the Constitution, the Court held:
“as can be seen from the above provisions, Act No. 1 of 2016 provides for savings and transitional provisions between the 1991 Constitution and the Constitution as amended. Therefore, Act NO.1 should be read together with the 1991 Constitution and the Constitution as amended. To that extent, we do not agree with the suggestion that Act No. 1 of 2016 is a stand-alone Act because it is an instrument that provides for smooth transition from the 1991 Constitutional regime to the current Constitutional order.”
On the above account, the Court declined to declare Section 7 of the Constitution of Zambia Act inconsistent with the Constitution as the Act must form part of the Constitution itself.
Legal Issue 2
With regards to the second legal issue, the Court held that declaring the office of the Vice President vacant with the dissolution of Parliament would create a power vacuum in the Republic. The Court was strongly persuaded by the case of Wynter Kabimba (Suing in his capacity as Secretary General of the Patriotic Front) v. Attorney General[3], in citing the case, the Court stated:
“We too are alive to the importance of ensuring that there is no vacuum created in the governance of the nation thus avoiding a possible Constitutional crisis which could arise.”
The Court further stated that declaring the Vice Presidency vacate would lead to an absurdity which the legislature could not have intended. With the absence of a clear and plain provision that supported the case that the office of the Vice President becomes vacant with the dissolution of Parliament, the Court in essence, employed a purposive approach of interpretation in finding that; (i) the Vice President to fundamental to the exercise of executive function, more so, where Ministerial positions are vacant, (ii) a constitutional crisis would be created if the office of Vice President was to be declared vacant with the dissolution of Parliament (iii) the legislature would not have intended that the Republic at any time have a President without a Vice President to assist them.
Legal Issue 3
Regarding the third legal issue, suffice to point out that the Court was at pains in registering the ambiguous and obscureness of the Constitutional provisions relating to Minister’s appointment, tenure, and vacation. The Court in relation to the ambiguity and obscurity stated:
“Articles 116(3) (e) and 117(2) (d), in their current form cannot thus stand side by side with Article 116(1) and 117(1) which provide for Ministers and Provincial Ministers respectively being appointed from within Parliament. Therefore, we can only enjoin Parliament to address this ambiguity.”
[however, the author disagrees with the Court that the above provisions ‘cannot stand side by side,’ an explanation of this opinion is provided under the subheading ‘Literal rule v Purposive approach’]
With that said, the Court nevertheless went on to hold that Cabinet Ministers cannot continue to hold office when the pre-requisite to their appointments – being a member of Parliament – no longer exist due to the dissolution of Parliament. The Court employed the purposive approach of interpretation in reaching its finding, the Court, therefore, stated:
“For the reasons given above, the continued stay in office by the Respondents who are Cabinet Ministers and Provincial Ministers after the dissolution of Parliament on 11th May, 2016 is contrary to the spirit of the Constitution as amended, as the Ministers do not qualify to continue to hold office as the basis of their appointment to those offices no longer exist. We order that they should forthwith vacate office.”
The Cabinet Ministers were ordered to repay all the salaries, allowances, and benefits they received from the office between 12th May, 2016 till the date of the judgment as their stay in office after the dissolution of Parliament was unconstitutional.
SIGNIFANCE AND APPLICATION
- Ministerial positions become vacant with the dissolution of Parliament
The Court provided legal clarity with regards to the tenure and vacation of Cabinet Ministers. It was held that Cabinet Ministers’ tenure is tied to the life of Parliament, therefore, once Parliament dissolves, Cabinet Ministers must vacate their offices too. The author agrees with Courts holding in this regards, it was noted that Article 116(1) and Article 117(1) of the Constitution which provides that Cabinet Ministers must be appointed from within Parliament, is what tied the Cabinet Ministers’ tenure to the life Parliament. Further, the Court in obiter stated that had Cabinet Ministers been appointed outside Parliament, their tenure would extend till a general election.
- Literal rule v Purposive approach of interpretation
Another significant point arising from the case is the interpretation of the Constitution. On one hand, the literal rule of interpretation dictates that where the words in a statute are clear and simple the Courts need not do anything more nor less but simply give effect to the literal meaning of the words as they appear.[4] On the other hand, the purposive approach employs Courts to use statutory rules that capture the true intention and purpose of the statute. It seeks to capture what the words of the legislature meant[5]. In essence, this approach rejects strict adherence to the literal interpretation of the statute’s text and instead advocates for a broader interpretation that aligns with logic and common sense. This interpretation is guided by the Courts, determination of the legislature’s intended purpose in enacting the statute.
In casu, the petitioners urged the Court to adopt a purposive approach, arguing that a strict application of the literal rule would lead to an undesirable and intended outcome. Conversely, the respondents contended that the literal rule offered sufficient clarity and should therefore be upheld. The Court therefore, held that:
“As a starting point, we wish to observe that Article 267 (1) enjoins us to interpret the Constitution in accordance with the Bill of Rights and in a manner that promotes its purposes, values and principles. This entails that this Court must have in mind the broad objects and values that underlie any particular subject matter.”
The Court cited Article 267(1) of the Constitution which employs the Courts to interpret the Constitution purposively. Therefore, in line with the Constitution, the Court, through the above statement, correctly emphasized that the purposive approach must be the basis of constitutional interpretation – an approach which seeks to promote the values and principles; the development of the law; and good governance, in line with respect to the Bill of Rights. However, the Court seemed to contradict itself and the Constitution ultimately by further holding that:
“In terms of the general or guiding principles of interpretation, the starting point in interpreting words or provisions of the constitution, or indeed any statute, is to first consider the literal or ordinary meaning of the words and articles that touch on the issue or provision in contention. This is premised on the principle that words or provisions in the constitution or statute must not be read in isolation. It is only when the ordinary meaning leads to absurdity that the purposive approach should be resorted to. The purposive approach entails adopting a construction or interpretation that promotes the general legislative purpose.”
Essentially, the Court observed that the literal rule of interpretation must be the first resort in interpreting the Constitution, only when the outcome leads to an absurdity should the purposive approach be used. However, what if the literal rule does not produce an absurdity yet, it does not promote the purpose of the Constitution? Would using the literal rule be justified? Additionally, Article 267 (1) of the Constitution explicitly prescribes the purposive approach as the guiding method for interpreting its provisions. Therefore, holding the literal rule as the first resort to interpreting the Constitution seems to lack a constitutional basis.
It is well-established indeed that the general rule of statutory interpretation requires the application of the literal rule. Only when the literal rule results in absurdity or when the ordinary language of the statute is unclear or ambiguous should Courts resort to other principles of statutory interpretation. However, according to Article 1(1) of the Constitution, the Constitution is the supreme law in the Republic of Zambia and any established laws, principles and rules that are in conflict with the express provisions of the Constitution are null and void to the extent of their inconsistence. It is on that basis that the Author argues that in light of the express provision under Article 267(1) of the Constitution, the purposive approach must be the first resort in interpreting the Constitution. It is important to note that when applying the purposive approach, the literal words and their meaning are inherently taken into account, as the literal words of the statute form the foundation for discerning the broader legislative intent. In contrast, the literal rule, by its nature, may sometimes lead to outcomes that disregard the legislative intent or fail to address the complexities of some of the modern legal issues. It must be made clear that both types of interpretations have their advantages and limitations, however, the underpinning point is that, when interpreting the Constitution, the purposive approach should take precedent over the literal rule, given the express provision in the Constitution endorsing its application.
Another significant point to be derived from the case is the Courts assertion that “Articles 116(3) (e) and 117(2) (d), in their current form cannot thus stand side by side with Article 116(1) and 117(1),” thus, suggesting that these provisions are in conflict with each other. However, the author respectfully disagrees with the Court’s holding. The Articles cited above are compatible with each other hence reconcilable, while Articles 116(1) and 117(1) of the Constitution provide that Ministers and provincial Ministers be appointed from within Parliament, Article 116(3) (e) and 117(2) (d) of the Constitution provide for an eventuality that would terminate the tenure of a Minister and Cabinet Minister respectively – the eventuality being when ‘another person assumes the office of President.’ Then, what is meant by ‘another person assumes the office of president?’ does this mean when another person becomes president after a vacancy in the office? or does this mean when the President-elect is sworn in into office? Or does it encapsulate both situations? These questions were what the Court considered in interpreting the Articles.
In answer, Articles 116(3) (e) and 117(2) (d) of the Constitution envisages a situation where a vacancy in the office of President occurs and that vacancy is filled by the Vice President in line with Article 106(5) (a) of the Constitution. Therefore, when this occurs, the tenure of Cabinet Ministers and Provincial Ministers automatically terminates. Thus, the Cabinet and Provincial Ministers’ tenure terminates among other reasons, where the Vice President Assumes office of the President due to a vacancy. This means that it is the Vice President’s assuming of the office of President and not the assuming of office by the President-Elect that Articles 116(3) (e) and 117(2) (d) of the Constitution envision to terminate the tenure of Cabinet Ministers and Provincial Minsters.
Suffice to note that the above position was taken by the Court in casu as being the true interpretation of the Articles read together. In light of the above explanation, it is difficult to understand where a conflict between the Articles 116(1) and 117(1), and Articles 116(3) (e) and 117(2) (d) of the Constitution arise. The argument is that, the provisions of these articles can be harmonized without conflict. How does the Article that obliges the President to appoint Ministers from among Members of Parliament come in conflict with the Article that provides the termination of the Ministers, tenure once the Vice President assumes to Presidency? A coherent interpretation of these Articles suggests they can coexist, each serving its intended purpose without contradiction. The Court moreover, failed to provide an in-depth explanation on how these above articles ‘cannot stand side by side.’
- A new law is to be read together with its transitional provisions
With the enactment of Amendment No. 2 of 2016 which amended the Constitution, The Constitution of Zambia Act No. 1 of 2016 was promulgated to facilitate the smooth transition from the 1991 Constitution to that of the newly amended Constitution. The preamble of the Constitution of Zambia Act in part provides for the savings and transitional provisions of existing State organs, State institutions, administrations, offices, institutions and laws. the Court stated:
“This is because it is trite that on the passing of a new law, not to mention the Constitution of the land, it is necessary to provide for the transition from one constitutional order to another in order to avoid a gap in the governance of the country.”
Therefore, the Constitution of Zambia Act is not to be treated as a separate Act of Parliament but is to be read together with the Constitution. Essentially, the Court guided that transitional provisions are to be read with the law it seeks to transit into so as to avoid any gap that may be created.
CONCLUSION
The case is fundamental as it provided legal clarity on issues that arose at a time of a constitutional transition. The Deputy Ministers, Cabinet Minister and Provincial Ministers were ordered to repay all the monies the drew by virtue of their offices between time Parliament was dissolved and the date of the judgement as their stay in office during that time was unconstitutional. Suffice to not that the office of Deputy Minister ceased to exist with the dissolution of Parliament. With regards to the office of the Vice President, the Court held that the office essentially, is fundamental to the running of the democracy of the republic and declaring the office vacant with the dissolution of Parliament would create a constitutional crisis, the Court also guided on how to treat transitional provisions. Therefore, the author agrees with the judgment substantially, and only disagrees on the position the Court took by holding that the literal rule must take precedence over the purposive approach of interpretation when interpreting the Constitution, and that Article 116(1) and 117(1), and Articles 116(3) (e) and 117(2) (d) of the Constitution are in conflict.
[1] Constitution of Zambia, 1991 (as amended by Act No. 2 of 2016)
[2] No. 1 of 2016
[3] (2011)3 Z.R. 492.
[4] T, Musonda. Rules of Statutory Interpretation Employed By The Courts In Zambia. (Legal Aid Initiative,2024) extracted from https://www.amulufeblog.com/2024/11/rules-of-statutory-interpretaion.html
[5] Clawson International Ltd v. Papierwerke Waldhof-Aschaffenburg AG”
Leave a Reply