The law is clear, Chitotela must be suspended

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President Lungu with Chitontela

By Dr Munyonzwe Hamalengwa

A public officer facing corruption charges must generally be suspended

Section 47 of the Anti-Corruption Act No. 3 of 2012 enacts as follows:

“47. (1) Subject to the applicable legal and administrative procedures relating to the right to justice and a fair hearing applicable to public officers under their conditions of service, a public officer who is charged with corruption shall be suspended, at half pay, with effect from the date of the charge.

(2) A public officer ceases to be suspended if the proceedings against the public officer are discontinued or if the public officer is acquitted.

(3) This section does not derogate from any administrative power, disciplinary code, regulation, law or any other inherent powers of an employer under which the public officer may be suspended without pay or dismissed.

(4) This section does not apply with respect to an office in respect of which the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office shall be vacated.”

There are a number of arguments that have been advanced on the effect of the above provision with specific reference to a Minister facing corruption charges. Among the arguments that the above provision is of no application to a Minister are the following:

1. A Minister is no longer a public officer under current Zambian law.

It is argued that although the definition of a public officer under the Anti-Corruption Commission Act covers even a ministerial position, the Constitution as amended by Act No. 2 of 2016 in Article 266 has removed a Minister from the definition of a public officer as a Minister now falls under the definition of a State Officer. State Officers are nowhere mentioned in the Anti-Corruption Commission Act.

The above argument is misplaced for the simple reason that the definitions housed in Article 266 of the Constitution are expressly stated to be understood in the context used in the Constitution itself only. The framers of the Constitution did not intend for the definitions of the Constitution to cut across the whole body of Zambian law.

Indeed, the framers of the first Draft Constitution remarked as follows on the rationale for the definitions provision:

“The rationale for the Article was that, it was standard practice for the Constitution to provide definitions for words and terminologies in the context they would be used in the Constitution so as to avoid ambiguity.” (Report of the Technical Committee at page 833).

It is clear from the above that the definitions were never meant to override those of other laws. Therefore, the question of any inconsistency between the definitions housed in the Constitution and those of ordinary pieces of legislation does not arise.

For purposes of the Constitution, a Minister is no longer a public officer. For purposes of any other law, such as the Anti-Corruption Commission Act, a Minister is a public officer.

2. That section 47 of the Anti-Corruption Commission Act is not applicable to a public officer whose removal or circumstances for vacating office is prescribed by the Constitution.

The above argument is premised on a misapprehension of section 47 (4) of the Anti-Corruption Commission Act.

A proper reading of the said subsection reveals no such effect. The import of the subsection is that, where a public officer’s removal or circumstances for vacating office require specified limits or grounds under the Constitution, section 47 is not applicable.

The Constitution merely prescribing for circumstances for vacating a public office is in itself insufficient to oust the application of section 47 of Anti-Corruption Commission Act. The Constitution must go further to spell out the limits or grounds upon which the removal or circumstances for vacating a public office must be grounded.

Section 47 of the Anti-Corruption Commission Act was aimed at not being applicable whenever a public officer was guaranteed security of tenure under the Constitution or indeed, under an ordinary Act of Parliament as delegated by the Constitution.

The other exception to the application of the section is where a public officer’s conditions of service restrict its application. This is possible because in its very opening words, the section renders itself subject to “…administrative procedures relating to the right to justice and a fair hearing applicable to public officers under their conditions of service…”

None of the two exceptions to the application of section 47 of the Anti-Corruption Commission Act extend to Ministers. This is because Ministers do not enjoy security of tenure under the Constitution nor an ordinary Act of Parliament and neither do their conditions of service outlaw a suspension.

The following persuasive Kenyan jurisprudence illuminates on the effect of section 47 of the Anti-Corruption Commission Act. These cases considered provisions under the Kenyan Anti-Corruption and Economic Crimes Act, 2013 which has an almost identical provision to our own Anti-Corruption Commission Act.

In Republic v County Assembly of Kisumu & another Exparte Ann Atieno Adul [2017] eKLR, the Applicant, who was the Speaker of a particular County Assembly was charged with corruption. The clerk of the Assembly wrote to the Applicant informing him of his suspension as Speaker of the County Assembly pending his prosecution. The suspension was said to have been pursuant to Section 62(1) of the Anti-Corruption and Economic Crimes Act, 2013 which provides as follows:

“62. Suspension, if charged with corruption or economic crime

(1) A public officer who is charged with corruption or economic crime shall be suspended, at half pay, with effect from the date of the charge.”

However, section 62 (6) enacts that:

“This section does not apply with respect to an office if the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated.”

The court held that:

“The section does not apply to the applicant whose removal is provided for in Article 178 of the Constitution and section 11 of the County Governments Act. Since the removal was solely based on the section it follows that the removal was unprocedural.

Apart from section 62(1) of the Anti-Corruption and Economic Crimes Act, 2013 there is no other provision for suspension of the Applicant from office as both Article 178 of the Constitution and section 11 of the County Governments Act provide for removal from office and not temporary vacation of office as is intended by the letter.”

Although in fact, Article 178 (3) of the Constitution only provides that:

“Parliament shall enact legislation providing for the election and removal from office of speakers of the county assemblies.”

The Constitution itself made no provision for removal or circumstances on how the office was to be vacated. Those are found under an Act of Parliament.

This persuasive authority is distinguishable from the position of a Minister under Zambian law in that, where circumstances for vacating office are outlined in the Constitution, the same are not attached with any limitations or grounds upon which they may be triggered. Stated another way, the Constitution, or indeed an ordinary Act of Parliament simply do not attach any limits or grounds upon which a Minister leaves office.

Furthermore, in Muhammed Abdalla Swazuri & 16 others v Republic [2018] eKLR, the Applicant was the Chairman of the Kenyan National Lands Commission. Upon being charged with corruption, he was given restricted access to his office. He approached the court seeking a number of orders.

Among these was that the restricted access to his place of work constructively constituted the removal and/or suspension of him from office. He sought to be allowed unrestricted access to his place of work being a constitutional office.

The Court found that the Applicant had not actually been suspended. He remained in office.
In obiter dicta (remarks made in passing not being part of the Court’s reason for the decision), the Court stated as follows:

“…What must be appreciated is that unlike other public officers who are suspended upon being charged with corruption and economic crimes related offences, Constitutional office holders like the Applicant are exempted by virtue of section 62(6) of ACECA which provides:

“This section does not apply with respect to an office if the Constitution limits or provides for the grounds upon which a holder of the office may be removed or the circumstances in which the office must be vacated.”

Such officers may only be removed or suspended upon Article 251 being complied with.”

A reading of Article 251 of the Kenyan Constitution reveals that it spells out the limits or grounds upon which the holder can be removed from office. This is unlike our Article 116 of the Constitution which only outlines the circumstances for vacating a Minister’s office but without attaching any limits or grounds.

In short, Article 116 affords no security of tenure to Ministers upon which they would be beyond the reach of section 47 of Anti-Corruption Commission Act. No Public officer not accorded security of tenure under the Constitution, an Act of Parliament or conditions of service, can be shielded from the reach of section 47 of Anti-Corruption Commission Act.

Lastly, even those public officers enjoying security of tenure are not shielded from mandatory suspension in general terms. Only that the required suspension would not be premised on section 47 of Anti-Corruption Commission Act. For example, Article 144 (3) of the Constitution requires a Judge or the Director of Public Prosecutions by extension, to be suspended when the Judicial Complaints Commission establishes a prima facie case against them.

Therefore, being aware that the Constitution already makes provision for the suspension of specified officers, the Legislature in its wisdom found it superfluous to include the same suspension mechanism under the Anti-Corruption Commission Act. The Act was instead framed to deal with those with whom no suspension mechanism existed under the Constitution. Ministers are a classic example of that.

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