Green Party President Peter Sinkamba says:
State Counsel Sangwa is reported on Diamond TV this evening saying it is illegal for President HH to swear in ministers he has appointed to run ministries that have not yet been approved by Parliament. He is also reported to have said that the President will have to swear in the ministers again after the ministries are approved by parliament.
I disagree with this argument. I think that Sangwa’ argument is flawed on the following ground:
The Constitution in Article 116 (1) empowers the President “to appoint a prescribed number of Members of Parliament as Ministers.”
As can be clearly seen from the Article 116(1) above, it NEVER makes reference to any MINISTRY. It only makes reference to PRESCRIBED NUMBER of MEMBERS OF PARLIAMENT.
Therefore, the first question that begs an answer is: are the appointed persons ministers? If the answer is “YES”, then all of them qualify to be appointed as ministers, and therefore, the President lawfully appointed them as ministers.
The second question thst begs an answer is: what is the prescribed number of MP? This is the maximum number of MPs that was approved by Parliament, in previous sessions, to be eligible to be appointed as ministers.
The third question is: what was the maximum number of MPs approved by parliament at its last session, to be appointed as ministers? The number is 30.
The fourth and last question is: did President HH exceed the number 30, of MPs who were appointed as ministers? The answer is NO.
So, if the President appointed MPs numbering less than 30, then he never breached the Constitution to appoint them, consequently, all of them were duly appointed and properly sworn in.
What the President can do, is to re-assign those appointed to new ministries to already existing ministries where they will serve until the new ministries are approved by parliament. After the new ministries are approved by parliament, he can again reassign them to those ministries without taking another oath. This is so because a minister takes only one oath, regardless the number of ministries they will assigned to during the course of that particular session.
For example if a minister is transferred by the President from ministry of agriculture to ministry of defence, no oath is taken.
This is my position. I think I am on firm ground. I think Sangwa has lost it.
This said, I still strongly believe that it was illegal and unconstitutional in terms of Articles 81(1) and 81(3) for the Constitution, as read with Order 8(3) of the National Assembly Orders of 2016 for thecPresident to appoint Minister of Finance Hon Musokotwane whilst parliament stood dissolved, and before he took oath of office of Member of Parliament. If Hon Musokotwane never publicly took oath of office of Member of Parliament, let him do so. After that, let the President arrange for another public swearing in sessiom for him as minister.
The President should publicly clarify on the issues I have raised concerning Hon Musokotwane. This is a very serious issue.
But he must be at peace with other appointments of ministers. He has committed no offence at all, He could proceed with those ministers as I have advised.