THE Patriots for Economic Progress has noted with interest the recent order of the Constitutional Court which tabulates the specific amounts that each minister that illegally stayed in office prior to the 2016 general elections has to pay as well as the 30-day period in which the payment has to be remitted.
In a statement, PeP leader Sean Tembo said his party agrees and supports the judgment of the ConCourt as it ensures the rule of law is upheld regardless of who the transgressors are.
On Monday, the Constitutional Court gave a 30-day ultimatum to 64 former PF cabinet ministers and their deputies to pay back the money they acquired after illegally staying in office following the dissolution of parliament prior to the 2016 presidential and general elections.
The Constitutional Court assessed that the amount Ngosa Simbyakula and 63 others are required to pay back to the state’s treasury is K4, 266,664.10 for the period of May to July 2016 which should be paid by January 5, 2021.
But Tembo said he strongly believes that the judgment was unfair to the individual ministers as they did not remain in office by themselves but were compelled to do so by their appointing authority, President Edgar Lungu.
He said the individual ministers were not culpable of any wrongdoing and that it was a violation for the court to seek to punish individuals that were not guilty of any wrongdoing whatsoever.
“Punishment should only be given to those that have done something wrong. As Patriots for Economic Progress, our view is that the Constitutional Court was in order when it held that the ministers had illegally stayed in office, however the Court misdirected itself when it held that ordering the said ministers to repay the emoluments that they earned while in office will remedy the transgression of their illegal stay,” Tembo said.
He said the ConCourt should not have adopted a shallow perspective on the matter by holding that the ministers were illegally in office at their own instance.
Tembo said ministers are employees of the government and that’s the reason why the administration is responsible for paying their remuneration.
“In this case, the President as head of government explicitly instructed the ministers to stay in office. In other words, the employer instructed its employees to stay in office,” he said. “Therefore, even if it were to be determined at a later time, as it was in this case, that the employer’s instruction to the employees was in conflict with another written law and therefore illegal, such illegality would have been committed by the employer. The employees are mere innocent third parties in the entire equation and should not be punished for the transgressions of the employer.”
Tembo added that what PeP finds particularly upsetting about the matter is the fact that the misdirected judgment of the Constitutional Court does not only punish innocent third parties, the ministers, but goes further to reward the culpable party – the government.
“There is no question here that the government through its head President Lungu are the ones that broke the law by instructing ministers to remain in office after proroguing Parliament, contrary to the provisions of the Constitution,” he said. “There is also no question that when the ministers pay back the money as ordered, they will be paying to the government. Therefore, the same government that is the guilty party in this whole equation is whom the Constitutional Court is rewarding instead of punishing. And all this is being done at the expense of innocent third parties; the ministers. Wrongdoers should be punished and not rewarded.”
Tembo advised the ministers who were ordered to pay back the money by the Constitutional Court to consider filing a lawsuit against President Lungu through the Attorney General, to compel him to indemnify them for the money that they have to pay back for illegally staying in office, since their illegal stay was at the instance of the President himself.
Alternatively, Tembo said the ministers should consider filling an application to the Constitutional Court for it to review its own ruling in the matter as the ruling is neither just nor equitable.
“Interpretation of the law must not be done blindly. It must be done with full consideration of the circumstances at hand. In this particular instance, the Constitutional Court blindly interpreted the law and ended up creating an injustice. Even from a labour law point of view, what the Constitutional Court has perpetuated through its blind judgment in this matter is a gross injustice,” said Tembo.