Press Statement on the Question of Whether Cabinet Ministers Have the Power to Remove the Acting President From Office

Following media reports on the statement by fourteen Cabinet Ministers declaring a vote of no confidence in the Acting President Dr. Guy Scott and directing the Secretary to the Cabinet to convene a meeting to discuss the possible replacement of the Acting President, the Law Association of Zambia has received queries over the question as to whether Cabinet Ministers have the power to remove the Acting President from his position. The Law Association of Zambia therefore wishes to state its position on the matter. The office of the President is created by Article 33 (i) of the Republican Constitution that establishes the office of Head of State and Government. According to Article 33 (2) of the Constitution, all executive power vests in the Republican President who can exercise such power either directly or through officers subordinate to him. In this regard, the President is the Presiding Officer of all cabinet meetings. In fact, the quorum for cabinet meetings is the President and one other member. This is because Cabinet merely advises the President who has the final say on any matter, notwithstanding any advice given to him by Cabinet. If the office of the President is vacant by reason of death, the substantive Vice-President assumes the functions of the office of President in an acting capacity for a period of ninety days. Within these ninety days, the Acting President has the power to perform executive functions of a President subject to the limitations set in Article 38 of the Constitution. This entails that an Acting President assumes the cabinet functions of a substantive President.

The question is whether Cabinet has the power to remove a substantive President. According to Article 36 (i) of the Constitution, the only ground upon which a President can be removed from office is that he or she does not have sufficient mental or physical capacity to discharge the functions of that office. If it is found by the majority of members of cabinet that the President, acting or substantive, lacks such capacity as stated in Article 36 (i), then an investigation must be conducted through a medical board appointed by the Chief Justice. Cabinet merely initiates the process by informing the Chief Justice that an investigation be conducted but the ultimate authority for removal from office rests with the National Assembly by a two-thirds majority vote on the decision of the medical board. The Constitution does not provide for any other circumstances under which Cabinet can remove a person holding the office of President. It therefore follows that a person performing the functions of the office of President in a acting capacity under Article 38 (i) can only be removed from office by Cabinet through the procedure set in Article 36 of the Constitution and not through a vote of no confidence by Cabinet Ministers.

At this point, it should be noted that the primary function of Cabinet is to formulate policy of government and is responsible for advising the President. In this regard, the quorum for Cabinet according to the Cabinet Handbook is the President and any other member. This means that cabinet cannot be constituted in the absence of the President, substantive or acting. To this end any meeting of Cabinet Ministers, in the absence of the substantive or acting President, does not amount to a duly constituted Cabinet Meeting. It could best be described as an informal meeting of Cabinet Ministers. Any decision of such meeting purporting to be a decision of Cabinet would therefore be null and void. It should also be noted that where any member of cabinet has an interest in an issue before it, they should declare that interest. As such, political interests cannot govern the conduct of cabinet business as an executive body of Government.

In conclusion, Cabinet Ministers cannot properly constitute any cabinet meeting in the absence of the President, acting or substantive, and cannot remove the President for any reason other than a lack of mental or physical capacity to discharge executive functions. The Law Association of Zambia also wishes to emphasize that its mandate is to uphold and protect the Constitution and the rule of law in any event and it will do so whenever and wherever the sanctity of the Constitution is under any threat.

Linda Kasonde
VICE-PRESIDENT – LAZ

19/12/2014

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