Court rules in favour of President Lungu

President Edgar Chagwa Lungu during the official opening of the African AU Committee of Ten Heads of State Summit on the UN Reforms of the Security Council at David Livingstone Safari Lodge in Livingstone, Zambia on Friday, May 9,2015 -PICTURE BY EDDIE MWANALEZA
President Edgar Chagwa Lungu

THE Lusaka High Court has ruled that there is nothing wrong with the President appointing opposition Members of Parliament (MPs) to ministerial positions as this does not mean that they have resigned from their respective political parties.
Lusaka High Court Judge Chalwe Mchenga said articles 46 (2) and 47 (3) of the Zambian Constitution give the President powers to appoint opposition MPs to ministerial positions even without the approval of their political parties.
Judge Mchenga said this yesterday when he delivered a judgment in a case where the United Party for National Development (UPND) had petitioned the court to declare as vacant the seats held by its MPs Greyford Monde (Itezhi Tezhi), Poniso Njeulu (Sinjembela) and Richwell Siamunene (Sinazongwe) for accepting ministerial positions.
In his judgment, Judge Mchenga said the MPs’ acceptance of ministerial positions does not amount to crossing the floor, and therefore they should not be deemed as having resigned from the party.
“Having found that the provisions of articles 46 (2), and 47 (3) of the Constitution of Zambia to entitle the President to appoint opposition MPs to ministerial positions even without the approval of their political parties, I find that the acceptance of ministerial positions by the three MPs did not amount to crossing the floor and consequently they cannot be taken to have resigned from their political party.
“This being the case, I decline to declare the seats vacant. The petition is dismissed and the parties will bear their own costs,” Mr Justice Mchenga said.

The UPND, through its deputy secretary general for politics Kuchunga Simusamba, submitted that the act of appointing opposition MPs to ministerial positions is destroying multi-party democracy in Zambia as the appointees literally cross the floor of the House in Parliament.


Mr Simusamba said by accepting the ministerial positions, the opposition MPs sit and vote with the ruling party on any motion in line with the principle of collective responsibility.

But Mr Justice Mchenga, in his ruling, said the power to appoint ministers from among members is exclusively a preserve and absolute discretion of the President.

He said the President should be allowed to exercise the function independently within wide latitude, subject to the Constitution and without interference from other organisations such as the government or the courts.


Judge Mchenga said to fetter the President’s powers to appoint ministers would amount to undermining the tenets of democracy and abrogating the provisions of the Constitution.


“The President may appoint such deputy ministers as he may consider necessary to assist ministers in the performance of their functions and exercise or perform on behalf of ministers such of the ministers’ functions as the President may authorise in that behalf,” he said.
Judge Mchenga said it is sad that the appointment of opposition MPs to ministerial positions without the approval of their parties has not been well received in some quarters.