A response to Dr O’Brien Kaaba’s defence of the Technical Committee, reaffirming that its establishment under Article 92 is unconstitutional, inconsistent with Zambia’s democratic values, and void from inception

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Reaffirming the Case Against the Technical Committee: Article 92 Was Never a Blank Cheque

A response to Dr O’Brien Kaaba’s defence of the Technical Committee, reaffirming that its establishment under Article 92 is unconstitutional, inconsistent with Zambia’s democratic values, and void from inception.

By Prof. Cephas Lumina


In the days since my last column in this paper, Dr O’Brien Kaaba of the University of Zambia and others like Solicitor-General Marshall Muchende have offered a spirited defence of the government’s decision to establish the so-called Technical Committee on the Constitution under Article 92. Dr Kaaba’s argument, published on ZNBC Today a few days ago, is tidy and confident—but it rests on a profound misreading of the text and purpose of Article 92, and on an even more dangerous willingness to legitimise executive overreach by appealing to a flawed precedent. The Solicitor-General has provided no credible grounds to support his claim that the Committee was legally established.

Let us be clear: Article 92 is not a constitutional magic wand. It was written to guide the President in running government, not in rewriting the Constitution. It was never intended as a back-door amendment power.

What Dr Kaaba claims

Dr Kaaba advances three main points, but two concern us here.

First, he argues that the President lawfully appointed the Technical Committee under Articles 92(1), 92(2)(f) and 92(2)(j). According to him, those provisions empower the President to appoint persons “to perform special duties for the Executive” and to “perform other functions specified by this Constitution or as prescribed.” In his view, setting up a committee to collect public views on any subject—including constitutional reform—is comfortably within that remit.

Second, he contends that there is precedent for such an appointment. President Michael Sata, he reminds us, created the Silungwe Technical Committee in 2011 under the now-repealed Articles 33 and 44 of the Constitution (as amended in 1996), which, he says, are equivalents of today’s Article 92. Since no one challenged Sata’s action, Kaaba in effect reasons, the present committee must also be lawful.
It is a tidy syllogism—but tidy reasoning can still be wrong.

A misreading of Article 92(2)(j)

Dr Kaaba’s argument starts on shaky ground. He invokes Article 92(2)(j), claiming it empowers the President to appoint persons to “perform other functions specified by this Constitution or as prescribed.” But that is not what the provision says. It says the President shall “perform other functions specified by this Constitution or as prescribed.” The subject of the sentence is not persons appointed by the President—it is the President himself.

This distinction is not pedantic grammar; it is constitutional logic. Article 92(2)(j) describes what the President does, not whom he appoints. Reading it as a free-standing appointment power is to wrench it from its grammatical and structural context. If Kaaba’s interpretation were correct, the President could invoke 92(2)(j) to create any body he or she fancied—from a “National Morality Brigade” to a “Constitutional Renewal Council”—all without parliamentary sanction. That cannot be the rule of law; it is rule by whim.

What “special duties” really mean under Article 92(2)(f)

The real issue lies in Article 92(2)(f), which allows the President to “appoint persons as are required to perform special duties for the Executive.” What, exactly, are special duties?

The Constitution does not define them, but the 2011 Technical Committee on Drafting the Constitution—the very body that refined this clause—explained its rationale clearly. Zambia’s executive system is presidential; executive authority is vested in a directly elected President who must have the flexibility to appoint individuals to discharge diverse or ad-hoc executive functions not otherwise provided for in statute.

Such appointments cover work that supports the President or Cabinet directly, is not otherwise provided for in law, and can be time-bound, advisory, or mission-based. Examples include special envoys, presidential advisers, policy coordinators, and troubleshooters on administrative or diplomatic assignments. During the national consultations, delegates agreed to keep this discretion unchanged precisely because it was administrative—not constitutional—in nature.

In other words, “special duties” means executive housekeeping: short-term, task-specific assignments within the day-to-day machinery of government. It does not include the power to engineer constitutional reform. To interpret it otherwise is to stretch an administrative clause into a constituent power—an interpretive leap the Constitution itself forbids.

The constitutional limits of executive power under Article 92

Dr Kaaba’s (and the government’s) reliance on Article 92 to justify the establishment of the Technical Committee remains constitutionally untenable. The clause empowers the President to appoint persons, committees or commissions to advise, study, or assist in executing executive functions—but not to carry out legislative or constituent powers that belong exclusively to the people and Parliament.

For a presidentially appointed committee to be legally established, two conditions must be met. First, its purpose must fall within the proper sphere of executive authority. Second, its operation must comply with the Constitution’s fundamental principles of democracy, constitutionalism, and good governance, integrity, and sovereignty of the people under Articles 5, 8, and 90.

If, as officials have conceded and its terms of reference reveal, the Committee’s purpose is to “consult” the public on constitutional amendments already decided by the Executive, it immediately raises constitutional red flags. Constitutional amendment is not an executive function—it is a constituent and legislative process.

By purporting to legitimise predetermined amendments through superficial consultation, the Committee undermines the sovereignty of the people (Articles 5 and 90), contradicts democratic and constitutional values (Article 8(c)), and violates integrity and good governance (Article 8(e)) by reducing public participation to a mere formality.

At a deeper level, the flaw lies in confusing executive authority with constituent power. Executive power exists within the constitutional framework; constituent power stands above it. The Executive may administer and implement the Constitution, but it cannot remake it. When it attempts to do so—as through the Technical Committee—it claims authority that belongs to the people themselves.

Constitutional reform, by its nature, is the highest expression of popular sovereignty. It is a power that precedes and limits the Executive. When those entrusted with temporary authority use it to alter the very terms of that authority, they cease to be custodians and become usurpers. To allow such an act under Article 92 would be to turn a clause meant for administrative flexibility into a constitutional crowbar—transforming the President from guardian of the Constitution into its architect.

Article 1(2) affirms constitutional supremacy, declaring that any act or omission inconsistent with the Constitution is illegal and void. Article 90 further provides that executive authority derives from the people and must be exercised for their benefit and in accordance with social justice. Together, these provisions impose a fiduciary duty: the President holds power in trust, not as personal discretion. To employ that trust to reshape the Constitution without the people’s consent is to breach it.

Thus, Article 92 cannot stand alone. It must be harmonised with:

• Article 1(2): Any act inconsistent with the Constitution is void;
• Article 5: Sovereign authority vests in the people;
• Article 8: Democracy, constitutionalism, good governance, and integrity are binding national values; and
• Article 90: Executive authority derives from, and must serve, the people.

Taken together, these provisions form a constitutional ecosystem in which the Executive may implement the Constitution but never rewrite it.

Illegality and the doctrine of constitutional supremacy

Under our constitutional order, supremacy and legality are inseparable. Any exercise of power inconsistent with the Constitution is null from inception. As Professor Melvin Mbao has argued, “the Constitution controls the manner in which repositories of state power should exercise their power and discharge their functions.”

Across African and Commonwealth jurisprudence, courts have reinforced this doctrine. For example, in Executive Council of the Western Cape Legislature and Others v President of the South Africa and Others (1995), South Africa’s Constitutional Court struck down a section in a statute directing the reform of local government, which empowered the President to amend sections of the Act by presidential proclamation because it violated the separation of powers. In Katiba Institute v Attorney-General and 9 Others (2023), the Supreme Court of Kenya held that the exercise of sovereign power of the people delegated to state organs, the legislature, the executive, the judiciary, and independent tribunals was constrained by the principle that those organs may exercise no powers or perform functions beyond those conferred upon them by law.

Applying this doctrine here, the Technical Committee—created under Article 92 for a purpose alien to that clause and inconsistent with Articles 1, 5, 8, and 90—is unconstitutional and void from inception.


The Solicitor-General’s admission

The Solicitor-General has openly stated that the Committee’s purpose is to “validate” constitutional-amendment proposals already decided by the Executive. That single admission removes any doubt about its illegality. Validation of executive decisions is not consultation; it is an attempt to dress unilateral action in democratic clothing. It guts the principle of popular sovereignty and offends Article 1(2)’s command that all state acts conform to the Constitution.

Comparative lessons

Across the Commonwealth, courts have consistently rejected this misuse of executive power. In Kenya’s Building Bridges Initiative (BBI) case (2021 and 2022), the courts held that the President cannot initiate constitutional amendments through an executive committee, affirming that constituent power belongs to the people, not to those who govern in their name. In South Africa’s Doctors for Life International v Speaker of the National Assembly (2006), the Constitutional Court struck down amendments passed without genuine public participation, declaring participation a fundamental feature of the country’s democracy. Similarly, Canada’s Reference re Secession of Quebec (1998) and Senate Reform Reference (2014) both affirmed that constitutional amendment processes must respect the underlying principles of democracy and constitutionalism. Finally, in Munir Zulu v Attorney General (2025), Zambia’s Constitutional Court underscored that constitutional reform must embody public participation and directed government to design a people-driven process.

The jurisprudential chorus is consistent: power over constitutional reform belongs to the people, and the Executive must not usurp it.


The fallacy of precedent: The Silungwe committee

Dr Kaaba’s reliance on President Sata’s Silungwe Committee is equally misguided. The pre-2016 amendment Constitution’s Articles 33 and 44—equivalents of today’s 91 and 92—conferred only executive authority. They did not empower the President to establish a constitutional-drafting committee.

The Silungwe Committee’s legality was never tested; its existence merely went unchallenged. In constitutional law, silence is not assent. An unconstitutional act does not become valid through passage of time or repetition. Relying on that precedent amounts to saying: “Because one President got away with it, another may too.” Precedent cannot sanitise a constitutional wrong.

On Dr Kaaba’s call to “look beyond legality”

Dr Kaaba concludes that we should focus on achieving comprehensive reform rather than on the legality of the Technical Committee. That is a rhetorical sleight of hand. Legality is the starting point of constitutional reform. One cannot use unconstitutional means to produce constitutional ends. A process born in illegality cannot yield legitimate results.

If the government truly seeks durable reform, it must return to the constitutional path: engage civil society, faith groups, and citizens in a transparent process consistent with Articles 5, 8, and 90 and the Constitutional Court’s guidance in Munir Zulu. The Executive’s role should be facilitative, not directive.
Conclusion: Article 92 was never meant to be a blank cheque

Article 92 was designed to make the machinery of government run efficiently—not to give the President a crowbar to pry open the constitutional order. To stretch “special duties” into an amendment power is to rewrite the Constitution by stealth.

A body whose creation defies constitutional purpose and values is void from inception. The Technical Committee, established under Article 92 to “validate” executive decisions, violates Articles 1(2), 5, 8, and 90. Under the supremacy clause, that makes it illegal from the moment of its establishment.

Dr Kaaba’s defence transforms a clause of administrative convenience into a licence for constitutional manipulation. It substitutes legality with legacy and precedent with expediency. That approach empties the Constitution of its moral and legal authority.

Article 92 was never meant to be a blank cheque. It remains—and must remain—a limited licence to govern, not to govern the Constitution itself.

Source: The Mast