By Mwaka Ndawa
THE Constitutional Court says Articles 261 and 263 of the constitution do not contradict each other as both Articles seek to provide accountability for public officers.
This is in a matter where Chapter One Foundation limited commenced an action against the State over the failure by 40 former ministers among them former speaker of the National Assembly Patrick Matibini to annually declare their assets and liabilities from 2016 to the expiry of their mandate prior to the 2021 general elections in line with the parliamentary and ministerial code of conduct.
The NGO was seeking an interpretation of Article 263 of the constitution and particularly whether the provision was in conflict with Article 261 which requires all holders of public office to abide by the code of conduct which requires them to disclose their assets and sources of income.
Chapter One Foundation director Susan Matale in an affidavit in support of originating summons said that the NGO on January 13, 2021 made a formal complaint to the late chief justice Irene Mambilima regarding the failure of the ministers to comply with the obligations under section 10 of the parliamentary and ministerial code of conduct Act Chapter 13 of the Zambia laws to annually declare their assets, liabilities and sources of income.
She said the NGO requested Mambilima to constitute a tribunal to investigate the unwillingness of the ministers to make statutory declarations.
“By a letter dated February 11, 2021, the Chief Justice responded to the request and stated that she was constrained from appointing a tribunal as Section 10 of the parliamentary and ministerial code of conduct Act was overtaken by Article 263 of the Constitution Amendment Act no.2 of 2016, which only requires holders of public office to make declarations before assuming or upon leaving office,” Rev. Matale said.
The ministers alleged to be in non-compliance with the ministerial code of conduct were Davies Chama (defence), Lawrence Sichalwe (chiefs and traditional affairs), Ronald Chitotela (tourism and arts), Lazarus Chungu (Northern Province), Sydney Mushanga (Central Province); Charles Banda (local government), Godfridah Sumaili (religious affairs and national guidance), Michael Katambo (agriculture), Stephen Kampyongo (home affairs), Speaker Patrick Matibini, Matthew Nkhuwa (energy), Elizabeth Phiri (Gender), Nathaniel Mubukwanu (North Western Province), Dora Siliya (information minister and broadcasting), Jean Kapata (lands), Joseph Malanji (foreign affairs), Olipa Phiri (Office of the Vice-President), Dr Chitalu Chilufya (former minister of health), and Alexander Chiteme (national development and planning).
Others were Emmanuel Mulenga (youth sport and child development), Kampamba Mulenga (community development and social welfare), Bowman Lusambo (Lusaka Province), Mutotwe Kafwaya (transport and communication), Christopher Yaluma (commerce trade and industry), Professor Nkandu Luo (fisheries and livestock), Bwalya Ng’andu (finance), Brian Mushimba (higher education), Sylvia Chalikosa (works and supply), Joyce Nonde-Simukoko (labour and social security), Freedom Sikazwe (presidential
affairs), Vincent Mwale (housing and infrastructural development), Makebi Zulu (Eastern Province), Edify Hamukale (Southern Province), Richard Kapita (Western Province), Nixon Chilangwa (Luapula Province), Dennis Wanchinga (general education), Dr Jonas Chanda (health minister), Japhen Mwakalombe (Copperbelt Province), and minister of mines and mineral development Richard Musukwa.
In its judgment, the Constitutional Court said Article 261 of the constitution only required a holder of public office to act in accordance with the code of conduct and ethics prescribed for that office.
It said in terms of ministers, the code of conduct might be among others collective responsibility, conflict of interest, impartiality and declaration of assets.
Judge Martin Musaluke on behalf of others said Article 263 of the constitution was a new addition that did not exist in the previous constitution and the said Article specifically provides that a person holding public office shall upon assuming and leaving office make a declaration of his or her assets.
“The rationale of Article 263 of the constitution by the framers of the Constitution was that it was necessary for public officers to declare their assets and liabilities. The committee amended the Article by simplifying it and amended it to remove unnecessary details by providing for the declaration of assets and liabilities by public officers,” judge Musaluke said.
“The committee observed that the declaration of assets alone did not promote transparency and accountability and good governance.”
He ruled that the rationale of Article 263 of the constitution was to avail the public with information regarding assets and liabilities of public office holders at the time of assuming office and exiting to keep them accountable for assets acquired between the two periods.
“Article 261 gives a general direction that public officers should act in accordance with the code of conduct and ethics prescribed for that office which is the parliamentary and ministerial code of conduct which provides that MPs should not obtain pecuniary advantage, declaration of interest on government contracts and annual declaration of assets including collective responsibility,” said judge Musaluke.
“The literal interpretation of Article 263 of the constitution leads to the conclusion that it specifically talks to the declaration of assets, liability and income of public officers and clearly gives guidance on such declarations as at the time of assuming office and leaving office. For the avoidance of doubt, we reiterate that there is no conflict between the two.”
Chapter OneFoundation limited chief executive officer Linda Kasonde had asked judge Musaluke to clarify whether the Court was in agreement with her institution or the state but judge Musaluke declined saying the court cannot interpret further owing to the mode of commencement.
He said the matter was commenced by way of originating summons and not a petition therefore the Court only did what the applicant requested it to do by interpreting whether the Articles in question contradicted each other therefore it could not elaborate on the same.
Judge Musaluke asked Kasonde to read the judgment and later go back to the Court to seek interpretation of specific issues which might not be clear.