The offices of the Attorney-General and Solicitor-General of the Republic of Zambia are offices under the executive arm of government established by the Constitution. For this reason the two offices are also referred to as constitutional offices and are subsequently public offices. Apart from the express rights, liabilities, duties and obligations that are provided for on the holding of these offices, there are implications that arise due to the nature of the said offices, being constitutional and thereby public offices. The question that begs an answer with regard to these two offices is whether an individual appointed to such office can start exercising the functions of that office after ratification by parliament but before taking an oath of office.
The office of the Attorney-General is created by Article 54 (1) of the Constitution. By virtue of this office, the Attorney General is also an ex-officio member of the Cabinet and principle legal adviser to the government. The office of the Solicitor General is created by Article 55 (1) of the constitution. In terms of Article 55 (5) any power or duty imposed on the Attorney General by the constitution or any other written law may be exercised or performed by the Solicitor General where: –
a) The Attorney-General is unable to act owing to illness or absence; and
b) In any case where the Attorney General has authorised the Solicitor
The implication of Article 55 (5) is that the Solicitor-General can also act as ex-officio member of cabinet. This means that both the Attorney-General and the Solicitor-General have the capacity to be ex-officio members of cabinet.
There is no provision of the Constitution that requires an appointed Attorney-General or Solicitor-General to take oath after ratification. The only requirement that the Constitution provides is that the appointment has to be ratified by parliament.
However, as earlier stated above, both offices are constitutional offices and therefore public offices. This means that the two offices are accountable to the public and should preserve the sanctity of the Constitution. It is important to note that the oath of a person sitting in Cabinet is vital and mandatory because Cabinet, in the conduct of its business, is guided by three principles. These are collective responsibility, confidentiality and declaration of interest. Evidently, an oath is necessary if Cabinet functions are to be discharged in light of the three principles. More over all persons serving in the public service are not only required to take an oath but also to sign form CSB10, which is the declaration and undertaking of person who may work on or have access to matters affecting State security. This is usually done when taking an oath. The details regarding the said principles are stated in the cabinet handbook, 3rd edition of 2010.
The question may arise as to why the Attorney-General and Solicitor-General should take an oath of office if there are no specific written legal provisions to that effect. The practice in Zambia has been that the Attorney-General and Solicitor-General take the oath of office before they start discharging the substantive functions of their offices. This practice has been unbroken since 1964 when Zambia became a sovereign Republic. At common Law when a practice has been time-honoured, that is to say when it has been consistent and unbroken, it gains the status of law and thus becomes a rule of practice. Even though the Constitution of Zambia does not provide for the taking of an oath when the Attorney General and Solicitor General are appointed, it should be mandatory for such appointed person to take oath for the appointment to be “valid” and “complete”.
However, it must be noted that according to section 8 of the Official Oaths Act, if a person has taken an oath for a particular office and subsequently appointed to another office, such a person need not take another oath if the office he is required to take for the new office is the same as the oath taken for the previous office. In this regard since the oath taken by an Attorney-General and a Solicitor-General are the same, if the current appointed Attorney-General took an oath of office as Solicitor-General he need not take another oath for the position of Attorney-General. That being the case the current appointed Attorney-General does hold the substantive office validly and can subsequently exercise his duties as such. On the other hand, the newly appointed Solicitor-General needs to take an oath of office before he starts discharging the functions of Solicitor-General if he has not taken a similar oath previously.
VICE-PRESIDENT – LAZ
Tuesday, 29th July, 2014.