NAKACINDA’S APPOINTMENT LEGAL-LAURA MITI
The battle for control of the PF, that is currently playing out in the public arena, is most intriguing, when approached from an interrogation of the party constitution.
As legal and constitutional matters contribute to fun brain cell exercises at the ACA, we decided to read up on who is right in the raging argument. Think of this as an unoffical fact check.
So, the question is – does Acting PF President, Given Lubinda, have the right to appoint Raphael Nakachinda as party Secretary General? This will be tackled as a constitutional, rather than a political question.
Let’s analyse the party constitution.
The first Article of interest is Article 53, which reads as follows: (I’m paraphrasing the legalese to straight forward English)
(1) If the President resigns or is removed from office, the Secretary General will act as President until the new President is elected, in line with constitutional provisions.
(2) If the both the President and the SG are absent, the President (which one🤷🏽♀️) will choose one Member of the Central Committee to perform the functions of the President until the President or SG resume duties. (This is one of many not-thought-through provisions in the PF constitution.)
Forgetting that contradiction, let us, at this point, accept that Mr Lubinda, as soon as he became Acting President, assumed the full powers of the Presidency. There is no caveat in the PF Constitution. The Acting President performs all constitutional presidential powers.
Now, let’s read what those functions are.
Article 61
The President of the Party shall (I will only list the significant ones.)
b) Create offices in the Party.
g) Empower any member of the Party to exercise any powers or specified functions for, and on behalf of, the Party or the Central Committee.
j) Take a decision or an action which, in his opinion, is in the best interest of the development or security of the party.
k) Appoint a Member of the Central Committee to act as SG of the Party, in the absence of the substantive holder. (Remember that Article 51 gives the President the power to appoint the substantive SG anyway.)
The simple conclusions after all that are that:
1. The PF Constitution says whoever is appointed to Act as President, has full powers of the presidency. There are no claw back clauses.
2. Mr Lubinda is the Acting President.
3. Mr Lubinda has the power to appoint the SG.
4. Mr Nakachinda is therefore constitutionally appointed as SG.
It, unfortunately, does not end there. It gets all muddy🤦🏾♀️.
Turning all the above on its head, is that Mr Lubinda was not appointed by the President of the Party, as the PF Constitution demands, but rather by the Central Committee.
According to a Cabinet Office letter, written in January 2022, in response to a citizen query, President Lungu resigned as Party President on 28 August 2021.
The point of that is that, after August 2021, no one had the constitutional power to appoint a PF President.
The Lubinda Presidency is therefore illegitimate, as it happened in December 2021. The result of that is all Mr Lubinda’s actions, as Acting President, such as the currently debated appointment of “SG” Nakachinda, are null and void.
By the way, even the appointment of Nickson Chilangwa as Deputy Secretary General, done by EL in September 2021, after his (EL’s) resignation, is constitutionally null and void.
The overall conclusion is that there is A-Grade constitutional confusion in the PF. To achieve sanity, the party needs to amend its constitution and go to a congress.