THE Law of Association of Zambia says any exercise of executive power under Article 31 of the Constitution must be done reasonably.
And the Association says the executive should have been reluctant to invoke Article 31 despite such power being given to the President under the Republican Constitution.
Meanwhile, LAZ has clarified that the threatened state of public emergency cannot extend beyond three months as there is no power of extension under Article 31.
On July 5 after the burning of Lusaka City Market, President Lungu invoked Article 31 of the Constitution and the Preservation of Public Security Act Cap 112 of the Laws of Zambia that will see the police gaining more powers in enforcing the law, among them, having powers to stop, search or detain individuals or motor vehicles without a warrant.
With the approval of the threatened state of emergency by Parliament whose majority representation was from the ruling PF since 47 UPND members of parliament were serving a suspension while 11 others stayed away, President Lungu can now come up with regulations he deems fit as to decree, among others, prohibition of the publication and dissemination of matters prejudicial to public security, and, to the extent necessary for that purpose, for the regulation and control of the production, publishing, sale, supply distribution and possession of publications; prohibition, restriction and control of assemblies; prohibition, restriction and control of residence, movement and transport of persons, the possession, acquisition, use and transport of movable property, and the entry to, egress from, occupation and use of immovable property.
And under the same Preservation of Public Security Act Cap 112 (3), “If the president is satisfied that the situation in Zambia is so grave that it is necessary so to do, he may, by statutory instrument, make regulations to provide for: (a) the detention of persons; (b) requiring persons to do work and render services.”
Briefing journalists at the Law of Association of Zambia (LAZ) secretariat in Lusaka this morning, Association president Linda Kasonde, who was flanked by vice-president Eddie Mwitwa, honourary secretary Sashi Kateka and some council members, reaffirmed that Article 31 gave the Republican President the discretion as to whether or not to invoke Article 31 if a situation existed which may lead to a state of public emergency.
In our view, the procedure of issuing the proclamation in the Gazette was done in accordance with Article 31 of the Constitution. However, as with any exercise of executive power, the power under Article 31 must be exercised reasonably,
“We have taken note of the reasons given in invoking Article 31. We sympathise with the victims of all these unfortunate events but also take note that there is yet to be issued, conclusive publicly available information, regarding the outcome of investigations by the police with respect to the unfortunate events leading to the invocation of Article 31. For this reason, we think the executive should have been reluctant to invoke Article 31, despite such power being given to the President under the Constitution.”
On the approval of the threatened public emergency by PF members of parliament on July 11, Kasonde said LAZ had noted with concern on whether or not a quorum was formed at the National Assembly when the declaration by the Head of State was approved.
“We have noted, in media reports, that an action has been brought before the courts to determine this issue. We are therefore unable to comment any further as this matter is now sub-judice,” she said, although the UPND later filed a notice of discontinuation of the matter in court.
Kasonde further stressed that power to derogate rights in the Bill of Rights did not exist under Article 31 which related to a threatened state of emergency.
“Therefore, all the powers under Article 31 must be exercised in compliance with the Bill of Rights,” Kasonde noted.
And Kasonde pointed that following parliamentary approval of the threatened state of emergency, Article 31(5) of the Republican Constitution provided that the resolution of the National Assembly would continue in force until the expiration of a period of three months, commencing the date of its being approved or until revoked on an earlier date.
“We note anxieties regarding how long the declaration of threatened emergency can last. This, in our view, cannot extend beyond three months as there is no power of extension under Article 31 as distinct from powers to extend that are available under Article 30,” said Kasonde.
President Lungu has the legal discretion to invoke Article 31. However, the question as to whether the circumstances cited for invoking Article 31 were justified can only be conclusively determined by a court of law. The government does not have full emergency powers under a threatened state of emergency. Any powers exercised must be used in accordance with the Constitution and in particular, in accordance with the Bill of Rights. The government has no powers to extend the threatened state of emergency beyond three months approved by Parliament.