The Law Association of Zambia has received numerous queries from the public and the media regarding the powers of an Acting President who assumes the functions of the President upon the death or incapacitation of a President under Article 38 of the Constitution. Article 38(3) of the Constitution provides that the Acting President assumes all the functions of a president. However, an Acting President may not dissolve the National Assembly and, in respect of appointments made by the deceased President, may not REVOKE any appointments except on the advice of Cabinet. Article 61 of the Constitution that provides for some of the functions of a president as follows:
“Article 61(1) SUBJECT to the other provisions of this Constitution and any other law, the power to constitute offices for the Republic and the power to abolish offices shall vest in the President.
Article 61(2) SUBJECT to the other provisions of this Constitution and any other law, the power to appoint persons to hold or act in offices constituted for the Republic of Zambia, to confirm appointments, to exercise disciplinary control over persons holding or acting in such offices and to remove any such person shall vest in the President”.
The Constitution provides that the functions of the president under Article 61 of the Constitution that the Acting President assumes on the death of the President pursuant to Article 38(3) are subject to Article 38(3). This means that an Acting President can make appointments, discipline and REMOVE persons in office but may not REVOKE any appointment made by the deceased or incapacitated president. The Oxford English Dictionary provides that the word “remove”, in terms of removing someone from office, which is a presidential function provided for in Article 61, is another word for “transfer”.
LAZ is of the opinion that the appointments of Permanent Secretaries are appointments to the office of permanent secretary and that portfolios are assigned to individuals holding that office may be changed from time to time by way of a transfer. Therefore LAZ is of the view that the Acting President has the powers, or assumes the functions, of also transferring office holders but may not terminate the services of previously appointed office holders.
However, as regards the transfer of Permanent Secretaries by the Secretary to the Cabinet, Article 53 of the Constitution is clear in providing that any actions by the Secretary to the Cabinet must be made on the instructions of the President or the person exercising the functions of a president. LAZ is therefore of the view that if the Secretary to the Cabinet acted by transferring the Permanent Secretary for the Ministry of Information without the instructions of the Acting President, the transfer is illegal.
VICE-PRESIDENT – LAZ